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Old 06-10-2016, 03:36 AM
Noel Prosequi is offline
Join Date: Aug 2006
Location: In the Ning Nang Nong
Posts: 1,373
Originally Posted by yellowjacketcoder View Post
I'm not a lawyer, but consider the following scenario.

Bob is rushed to the hospital with a stab would, where doctors don't expect him to make it. He's videotaped saying "Al did this. Al stabbed me". 10 hours of surgery later, Bob has a much better prognosis. In fact, he recovers completely and becomes a marathon runner (i.e., very much not dead). In fact, he is so into marathon running he begins a campaign to run a marathon in every country. Unfortunately, one of the countries he tries to run in as a government with a dim view of rights of the accused, and Bob is thrown in jail in some backwater dictatorship over a misunderstanding.

Later Steve the prosecutor decides to prosecute Al for stabbing Bob. Steve presents the videotape as a dying declaration. Al (or rather Al's lawyer) counters that as Bob isn't even dead, this shouldn't count, and as he has a right to cross-examine the witness. The fact that the witness can't be cross-examined because he's in jail in Backwateristan is the prosecution's problem.

Is the court's position that because the declaration was made while Bob thought he was about to die, and Bob is not available, it's admittable as a dying declaration, even though Bob is not actually dead?
In general, one of the conditions precedent for the application of the dying declaration rule is the that witness must be dead. In custody doesn't cut it. The rule was invented as a way around an absurd consequence of the hearsay rule, but the absurdity does not arise if the witness/victim is still alive.

The necessary state of mind of the witness is described in various ways, but one way that captures the flavour of it is that the witness must have a "settled, hopeless expectation of death". This is conceptually a hallmark of reliability justifying the relaxation of the hearsay rule in such cases - no-one wants to die with a lie on their lips, so it is thought.

Of course it is possible to have such a state of mind and yet, unlikely though it might be, luck into a recovery. But in those circumstances, the dying declaration rule would be meaningless. The witness could come to court in the ordinary way.

The example you are talking about is one of a witness who is simply unavailable. Some jurisdictions have work-arounds for that, others don't. But the dying declaration rule is not generally one of them.