The Hearsay Evidence Rule and dying declarations – important final statements for use later in court

From the Classroom: The Hearsay Evidence Rule – Dying Declarations 
By Ray Hill  
Professor Emeritus, Santa Rosa Junior College 

“O! But they say the tongues of dying men enforce attention like deep harmony: Where words are scarce, they are seldom spent in vain, for they breathe truth that breathe their words in pain.” 

A California appeals court ruling on dying declarations excerpted this line from William Shakespeare, King Richard II, Act 2, Scene 1 by John of Gaunt (Peo. v. Smith (1989) 214 Cal. App. 3d 906). 

Dying Declarations: An Exception to the Hearsay Rule 

This is the eighth in a series of bulletins covering the California Evidence Code and criminal investigations. This series covers the Hearsay Evidence Rule as it relates to an officer, deputy, or investigator giving testimony in court (140 E.C.). 

A dying declaration is evidence of a statement made by a dying person about the cause and circumstances of his or her death (1242 E.C.). This hearsay exception is infrequent, but when it does come up, it becomes very important evidence because it will be in a homicide case. 

Courts Have Long Held Dying Statements Are Important 

Dying declarations have deep historical roots, as you can see by these three court decisions from centuries ago.  

“They are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.” (Rex v. Woodcock (1789) 1 Leach Cr. C. 500) 

A shooting victim was asked if she thought she would live. The victim replied, “No, I am dying now. Don’t you see I am dying ” (Peo. v. Fong (1886) 70 Cal. 8) 

A shooting victim told a friend, “My time was short,” “I don’t have long to live,” and “A doctor could do me no good.” (Peo. v. Yokum (1897) 118 Cal. 437) 

The Legal Basis 

The legal foundation for a dying declaration is as follows: 

1. The declarant/victim must be under a sense of impending death (“in extremis.”) This fact can be established by a victim’s statement ....

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