Dying Declaration
A dying declaration is a hearsay exception under FRE 804(b)(2) for a statement by declarant who believed death imminent, concerning cause or circumstances of impending death, admissible in homicide prosecutions and civil cases when declarant unavailable.
Exam Tip
DEATH IMMINENT - subjective belief. FRE = unavailability; California = actual death required.
What is Dying Declaration?
FRE 804(b)(2) allows statements by declarant believing death imminent about its cause or circumstances.
Requirements
| Element | Requirement |
|---|---|
| Belief of Imminent Death | Certain and near |
| Cause or Circumstances | About what caused death |
| Unavailability | Declarant unavailable |
| Case Type | Homicide or civil only |
California Distinction
| Feature | Federal | California |
|---|---|---|
| Criminal Cases | Homicide only | All criminal |
| Death Required | No (unavailability) | Yes (must have died) |
Confrontation Issues
Post-Crawford, dying declarations may be historical exception to Confrontation Clause.
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Related Terms
Hearsay
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, generally inadmissible under FRE 801(c) and California Evidence Code Section 1200 because the declarant cannot be cross-examined.
Excited Utterance Exception
An excited utterance is a hearsay exception under FRE 803(2) for a statement relating to a startling event, made while declarant was under stress of excitement, admissible because excitement eliminates opportunity for fabrication.
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