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.

Note One 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 not be established by direct evidence, but may be proved by all the circumstances, including the declarant's physical condition, the nature and seriousness of his or her wounds, the declarant's knowledge of his or her grave condition or other circumstances of the case." People v. Mayo (2d Dist.2006) 140 Cal.App.4th 535, 553; see Monterroso, 34 Cal.4th at 763; People v. Tahl (1967) 65 Cal.2d 719, 725. The declarant's sense of impending death can be shown by her express language or conduct, her evident danger, or opinions stated to her by medical or other attendants. Monterroso, 34 Cal.4th at 763; see, e.g., People v. Ramirez (2d Dist.2019) 34 Cal.App.5th 823, 828-29 (declarant's statement in hospital record that "he was not hit by a car and actually was assaulted with fists to the head" was properly excluded as hearsay; statement lacked reliability and, although declarant's head injury was serious, there was nothing in record that reasonably suggested he made statement believing he was about to die).

2. Statement based on personal knowledge. The statement must be based on the declarant's personal knowledge as opposed to mere speculation. See Evid. C. §1242; Johnson, 61 Cal.4th...