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25.8 Dying Declaration
25.8.1 Dying Declarations To Be Viewed With Caution
25.8.2 Dying Declaration: Factors To Consider As To Declarant's State Of Mind
25.8.3 Dying Declaration: Improper For Police To Wait For Victim's Condition To Worsen Before Taking Statement
25.8.4 Dying Declaration: Not To Be Regarded As Having Same Weight As Sworn Testimony In Open Court
25.8.5 Dying Declaration: Declarant Must Have Abandoned Hope
25.8.6 Dying Declaration: View That No Instruction Should Be Given
25.8.7 Dying Declaration: Challenge
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25.8.1 Dying Declarations To Be Viewed With Caution
RATIONALE: Dying declarations have traditionally been assumed to be reliable, due to the solemnity of the occasion and fear of eternal punishment for bearing false witness. However, since dying declarations are not under oath or subject to cross-examination, a declarant may commit perjury with impunity, or simply be mistaken. Also, jurors might evaluate the credibility of the declaration in light of their own religious or ethical assumptions rather than on the credibility, given the totality of the circumstances, of the declarant’s statement.
POINTS AND AUTHORITIES: Courts have long noted the dangers of dying declarations (See Fitzpatrick v. State (GA 1919) 99 SE 128, 129; see also Crittendon v. State (TN 1928) 8 SW2d 371, 374-75; Dickason v. State (TN 1918) 202 SW 922; Pearson v. State (TN 1920) 226 SW 538, 541.) Courts cite various reasons such as: (a) lack of oath and cross-examination, opportunity for revenge or misstatement (Watts v. State (MS 1986) 492 So2d 1281, 1288); (b) opportunity to commit perjury with impunity (People v. Johnson (MI 1952) 54 NW2d 206, 208); (c) the court’s invasion of the jury’s role by the factual determination that the statement in question is a dying declaration (Ayers v. State (GA 1959) 110 SE2d 669, 672). In Ayers v. State, the court suggested a four-step instruction: 1) instruction that the factual finding of a dying declaration is an invasion of the jury’s role; 2) definition of a dying declaration; 3) instruction that the declaration is to be received with great caution; 4) explanation of the reasons for admitting dying declarations. (Ibid.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].
RESEARCH NOTES:
Bryan A. Liang, Shortcuts To "Truth": The Legal Mythology of Dying Declarations, 35 Am.Crim.L.Rev. 229 (1998).
RELATED FEDERAL MODEL INSTRUCTIONS:
See 7th Circuit Federal Jury Instructions - Criminal 3.21.
SAMPLE INSTRUCTION:
A dying declaration comes to you through others, and it is not to be considered as if the deceased had appeared at this trial and testified as did other witnesses. The deceased is not in condition frequently to give calm attention to the question to which [he] [she] makes [his] [her] statement. You should take into consideration the reasonableness or unreasonableness of the statement allegedly made by the deceased; the contradictions, if any, by [his] [her] interest or lack of interest, [his] [her] intelligence and [his] [her] position and situation to know the facts. You should bear in mind that the defendant was not present when the declaration was allegedly made and had neither the opportunity to make suggestions, nor call attention to the circumstances in [his] [her] favor, nor to cross-examine to show inaccuracies of memory, nor expose bias from passion or prejudice. For these reasons, this evidence should be received by you with caution.
[TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim. 42.15 [Dying Declaration] (West 5th 2000).]
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25.8.2 Dying Declaration: Factors To Consider As To Declarant's State Of Mind
RATIONALE: Specific instruction may be necessary for the jury to understand the factors which should be considered in evaluating a dying declaration.
POINTS AND AUTHORITIES: Numerous factors should be considered when assessing the declarant’s state of mind and the credibility of the dying declaration. (See e.g., People v. Nieves (NY 1986) 492 NE2d 109, 114.) These factors include, but are not limited to: grievousness of wounds and extensive medical apparatus (State v. Quintana (NM 1998) 644 P2d 531, 534); profuse bleeding (State v. Verrett (LA 1982) 419 So2d 455, 457); lack of improvement following the infliction of the wounds and the period between expression of belief in imminent death and the subsequent statement or identification (People v. Webb (IL 1984) 466 NE2d 936, 943); declarant’s conduct prior to the statement (State v. Sullivan and Dalton (RI 1897) 37 A 673, 675); state of mind inferred from statements concerning victim’s condition made to victim by others (State v. Gazerro (RI 1980) 420 A2d 816, 819; State v. Garcia (NM 1983) 664 P2d 969, 972); severity of wounds sufficient to override medical personnel’s statement to victim that victim would be all right (State v. Brown (NC 1965) 139 SE2d 609, 613); lack of transcendent faith in an afterlife (State v. Elliott (IA 1877) 45 Iowa 486); prior conviction of a crime of moral turpitude (Liddell v. State (OK 1920) 193 P 52, 55).
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].
PRACTICE NOTE: The above factors may be the basis for a specific instruction on the credibility of a dying declaration or argument to the jury and investigation. This is a good example of a situation where, even if a specific instruction is rejected, identification of the relevant factors in preparing an instruction may lead to fruitful investigation, examination of witnesses, and/or argument to the jury.
RESEARCH NOTES:
Annotation, Statements Of Declarant As Sufficiently Showing Consciousness Of Impending Death To Justify Admission Of Dying Declaration, 53 ALR3d 785.
Annotation, Sufficiency Of Showing Of Consciousness Of Impending Death, By Circumstances Other Than Statements Of Declarant, To Justify Admission Of Dying Declaration, 53 ALR3d 1196.
RELATED FEDERAL MODEL INSTRUCTIONS:
See 7th Circuit Federal Jury Instructions - Criminal 3.21.
SAMPLE INSTRUCTION # 1:
In weighing the probative value, if any, of a dying declaration consider all the circumstances including, but not limited to, the following:
1. Any statements made by the declarant as to his or her condition or expectations, as well as any statements made by medical personnel to the declarant.
2. The nature and severity of the wound, as apparent to the declarant.
3. Whether the person’s condition appeared to be improving or declining when the declaration was made.
4. Whether the declarant took any actions normally associated with an expectation of imminent death, such as asking for last rights, disposing of property, or attempting to make arrangements for the care of family members.
5. Whether the statement was truthful and accurate.
6. Whether the statement was correctly recorded or repeated.
Also, do not consider the alleged dying declaration unless you first find that the alleged statement was made (a) while the person making the statement was dying and (b) while the person believed he or she was dying.
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25.8.3 Dying Declaration: Improper For Police To Wait For Victim's Condition To Worsen Before Taking Statement
PRACTICE NOTE: It has been suggested that an inference of prejudice may result where police wait for the victim’s condition to worsen to the point where any statement made may be considered a dying declaration. (See Bell v. Arn (6th Cir. 1976) 536 F2d 123, 125.)
RELATED FEDERAL MODEL INSTRUCTIONS:
See 7th Circuit Federal Jury Instructions - Criminal 3.21.
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25.8.4 Dying Declaration: Not To Be Regarded As Having Same Weight As Sworn Testimony In Open Court
RATIONALE: Since dying declarations are not under oath or subject to cross-examination, a dying declarant may commit perjury with impunity, or simply be mistaken. Therefore, it may be appropriate to instruct the jury that dying declarations do not have the same weight as sworn testimony in open court.
POINTS AND AUTHORITIES: It has been held that a dying declaration does not have the same weight and value as the testimony of a witness given in open court. (State v. Valencia (NM 1914) 140 P 1119, 1119-20; see also People v. Falletto (NY 1911) 96 NE 355, 358.) The Valencia court further held that it is "error to instruct the jury that such evidence is of no more weight than if the deceased was present and testifying, because such instruction is calculated to lead the jury to consider that dying declarations are entitled to the same weight as the testimony of living witnesses under oath, and subject to cross-examination." (Valencia, 140 P at 1120.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 7th Circuit Federal Jury Instructions - Criminal 3.21.
SAMPLE INSTRUCTION:
Because a dying declaration is made without fear of prosecution for perjury, such a statement does not have the same value and weight as testimony sworn to in open court and subjected to cross-examination. Also keep in mind that such a statement is usually made when the speaker’s body is in pain, his or her mind agitated, and his or her memory shaken by the belief of impending death. And finally bear in mind that dying declarations are not necessarily true.
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25.8.5 Dying Declaration: Declarant Must Have Abandoned Hope
RATIONALE: Without a state of mind which results from imminent and certain death, the traditional indices of reliability of dying declarations (lack of motive to fabricate, desire to clear the conscience) are far less likely to be present.
POINTS AND AUTHORITIES:
"The declarant may make the statement at any time between the infliction of the injury and his or her death. The test is whether at the time of the statement, the declarant had the requisite state of mind, ensuring the statement's sincerity. Although all courts essentially require a showing that the declarant believed immediate death was certain, they have used numerous expressions to describe this critical state of mind: The declarant must be in extremis or in articulo mortis; the declarant must have an unconditional belief that death is impending or imminent; the declarant must have despaired and abandoned all hope; the declarant must believe that doom will be swift, certain, and inevitable; or -- easily the most colorful formulation -- the declarant must hear the beating of the wings of the Angel of Death. It is insufficient that the declarant believed death to be certain or immediate death be probable. If the declarant had even a faint or slight hope of recovery, the declaration is inadmissible." (Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998) § 1309, pp. 450-51; see also FRE 804(b)(2); MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 310.22 [Dying Declaration] (Missouri Supreme Court Publications, 3rd ed. 1987).)FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.8].
USE NOTE: The Sample Instruction # 1, below, is for use in a jurisdiction where the foundational fact for admissibility of the dying declaration must be made by the jury. In jurisdictions where this is not required, Sample Instruction # 2 would be more appropriate.
RELATED FEDERAL MODEL INSTRUCTIONS:
See 7th Circuit Federal Jury Instructions - Criminal 3.21.
SAMPLE INSTRUCTION # 1 [Preliminary Fact -- No Burden]:
You may not consider any evidence of _________________'s (name of declarant) dying declaration unless you first find that [he/she] believed (he/she) had been mortally wounded, that death was near, and had abandoned hope for recovery.
SAMPLE INSTRUCTION # 2 [Preliminary Fact -- Prove Beyond A Reasonable Doubt]:
A statement purporting to be a dying declaration of the deceased, _______, has been offered in evidence. Do not consider the alleged statement for any purpose in this case unless you first find beyond a reasonable doubt that at the time of the alleged making of the declaration the deceased, _______, believed that (his/her) death was imminent and that it concerned the cause or circumstances of what (he/she) thought was his impending death. If you have a reasonable doubt as to the existence of any of the foregoing requirements, then you must disregard the alleged declaration and not consider it for any purpose whatsoever.
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25.8.6 Dying Declaration: View That No Instruction Should Be Given
PRACTICE NOTE: Some jurisdictions suggest that no dying declaration instructions should be given. For example, the Seventh Circuit model instructions state: "The Committee recommends that no instruction be given on this subject. FRE 804(b)(2) permits the introduction of dying declarations only in prosecutions for homicide. Although there are decisions to the contrary, the Committee believes that the conditions of admissibility are questions to be determined by the court under FRE 104(a). [Citations.] An instruction on this subject is, therefore, unnecessary. The weight which should be given to a particular declaration is a proper subject of final argument." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.21 [Dying Declarations] Committee Comment (1999).)
RELATED FEDERAL MODEL INSTRUCTIONS:
See 7th Circuit Federal Jury Instructions - Criminal 3.21.
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25.8.7 Dying Declaration: Challenge
See FORECITE National™ 29.3.1 [Challenging Prosecution Forensic Evidence].