Chapter 3 - §19. Exception—Dying declaration

• Jurisdiction: United States

§19. Exception—Dying declaration

A declarant's dying declaration is admissible as an exception to the hearsay rule. Evid. C. §1242.

§19.1. Overview. A statement made by a person who knows she is near death, relating to the cause and circumstances of her death, has historically been considered to possess a considerable degree of trustworthiness. See 1 Witkin, California Evidence (5th ed.), Hearsay §187. In criminal cases, a dying declaration can be offered as substantive evidence by either the defense or the prosecution. Id.

NoteOne judge has commented that the dying-declaration exception to the hearsay rule has encountered a significant degree of academic criticism on the ground that it provides insufficient guarantees of trustworthiness. People v. Smith (1st Dist.2017) 10 Cal.App.5th 297, 311 n.10 (Simons, J., concurring).

§19.2. Requirements for exception. For a dying declaration to be admissible as a hearsay exception, the following criteria must be met:

1. Statement made under sense of impending death. The statement must have been made while the declarant was "under a sense of immediately impending death." Evid. C. §1242; People v. Johnson (2015) 61 Cal.4th 734, 763; People v. Monterroso (2004) 34 Cal.4th 743, 763. The "declarant's knowledge of his or her impending death need...