Chapter 11 - § 11.3 • DYING DECLARATIONS

• Jurisdiction: Colorado

§ 11.3 • DYING DECLARATIONS

§ 11.3.1—Introduction

In Colorado, under C.R.S. § 13-25-119, the "dying declarations of a deceased person" are admissible in evidence in all civil and criminal trials and other proceedings to the same extent and for the same purposes that they might have been admissible had the deceased survived and been sworn in as a witness in the proceedings. For the declarations of the deceased to be admissible under this exception, it must be satisfactorily proved:

(a) That at the time of the making of such declaration he was conscious of approaching death and believed there was no hope of recovery; (b) That such declaration was voluntarily made, and not through the persuasion of any person; (c) That such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement; and (d) That he was of sound mind at the time of making the declaration.

C.R.S. § 13-25-119 (emphasis added); People v. Cockrell, 2017 COA 125; People v. Mackey, 521 P.2d 910, 914 (Colo. 1974).

Colorado only allows dying declarations made by persons who actually died. C.R.S. § 13-25-119(1). However, there is no requirement that the statement be made as the person takes his or her last breath or that he or she specifically state, "I know I am dying." Dolan v. People, 449 P.2d. 828 (Colo. 1969) (admitting decedent's statements "John shot me" and "I am not going to make it this time"); see also People v. Lagunas, 710 P.2d 1145 (Colo. App. 1985) (dying declaration to a police officer at the scene of a shooting, "I'm dying for no reason . . . Jesse shot me five times for no reason."). While declarations that are the product of calculated, leading questions are prohibited, Colorado courts have admitted dying declarations that were in response to questions by a police officer or paramedic. See Mackey, 521 P.2d at 910 (where the court admitted the declaration identifying the killer after a police officer asked the question, "Who shot you?"); Cockrell, ¶¶ 2-5 (affirming admission of dying declaration where decedent stated he was dying and later identified to paramedic the defendant as the person who shot him).

The declarant also need not die immediately after making such declaration. See Ferguson v. People, 192 P.2d 523 (Colo. 1948) (where victim identified doctor who performed illegal abortion and dying declaration was admissible even though victim did not die for two months); Zipperian v. People, 79 P. 1018 (Colo. 1905) (dying...