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California Dying Declarations (CA Evidence Code 1242)

In court, there are a ton of rules about what evidence can be used and what evidence can’t be used. In past posts, I’ve described how only relevant evidence (in California; in New York and under Federal law) can be used in court. What occurred in the real world is often not what is dealt with in court. Many laypeople are shocked to know this when they get involved with their first court case. In California state court, the set of rules that govern what evidence can and can’t be used is the California Evidence Code. In federal court, there are the Federal Rules of Evidence. The specific name varies, but every jurisdiction in the United States generally has its own set of evidence rules.

One major component of the evidence rules — regardless of jurisdiction usually — is hearsay. Hearsay is easy to define — I learned it in law school as (1) statement, (2) made by a person, (3) outside of court, and (4) an attempt is being made to admit that evidence for the truth asserted therein. See section 1200 and onward in the California Evidence Code. These criteria are, obviously, fairly basic. As an aside, in the real world, it’s rare that you would quickly be able to tell if these criteria are satisfied. You’d likely have to answer some more nuanced questions first, such as “What exactly is a ‘statement’?” Anyway, aside over. If these 4 basic/simplified criteria are met, then the statement can’t be used in court… unless an exception of some kind applies. As many law students in the US — and many lawyers, if I’m honest — will attest, the hearsay exceptions are very difficult to learn. Not impossible, thankfully, just difficult. If you’re trying to learn them, my condolences. Do persevere

That foundation established and out of the way, this post will be about one of those hearsay exceptions, the Dying Declaration.

We should hopefully all be able to agree that evidence used in court should be reliable and accurate. The problem with hearsay, however, is that because it was a statement made outside of court, there is no way to vet its accuracy. When a witness testifies in court in person, the truth of what they are saying can be vetted during cross-examination. Not so with a hearsay statement.

One exception to the usual rule that hearsay can’t be used is the Dying Declaration exception. The idea is that when someone realizes they are about to die, they will be more likely to tell the truth because they want to die with a clear conscience for spiritual, moral, or religious reasons, for example. In California, that’s Evidence Code section 1242 which states:

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

A couple things stand out from these words: (1) the statement must be about the “cause and circumstances of his death.” Statements about other topics do not qualify, (2) the statement must be based on the dying person’s “personal knowledge.” In other words, it must be something the person knows themselves versus something they’ve been told by others, and (3) the person must be aware of their “immediately impending death.”. Under circumstances like these, the thought is that the dying person would tell the truth about what they know in order to die with a clear conscience.

For a real-life example of the California Dying Declaration in action, look up the case of Melissa Leonardo and Daniel Gross, both of Modesto. In February 2018, they are alleged — as of the date of this post, it doesn’t appear the case has been fully adjudicated — to have stabbed a third woman (Lizette Andrea Cuesta) in the throat and dumped her body in a remote and rural area near Tracy, California in the middle of the night. Cuesta allegedly crawled several hundred feet while bleeding profusely before she was found by a passing motorist. Cuesta did make it to the hospital, but ultimately passed away. However, before dying, she was able to tell the authorities who had stabbed her. At her preliminary hearing, it appears that Leonardo was held to answer for Cuesta’s murder based, at least in part, on Cuesta’s dying declaration that Leonardo had stabbed her.

As always, I hope you found this post informative. It is not intended as a comprehensive discussion of the Dying Declaration hearsay exception in California. If you have a situation where the Dying Declaration exception is important, I encourage you to find a lawyer in your area with whom you can discuss your situation face-to-face.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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