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Old 06-11-2016, 06:26 PM
Moriarty's Avatar
Moriarty is offline
Join Date: Jun 2007
Location: Denver, CO, USA
Posts: 2,968
Originally Posted by Bricker View Post
Absolutely true at common law.

But Maryland expands this rule to include attempted homicide and assault with intent to commit homicide.

I could weasel out of this by noting that the hypothetical didn't specify a jurisdiction, but as I was writing my post, I was thinking that local rules may vary, and I should have been more specific.

Or, even better, I should have stopped at my original point, which was to agree with your assessment that a declarant need not necessarily be dead to make a Dying Declaration. While I respect the hell out of Noel Prosequi's legal acumen, (s)he was incorrect in stating that such a situation would make the rule meaningless.

Now, it is true that they need to be unavailable to testify at trial (so if a person makes a full recovery, and is within the court's jurisdiction, they can't make a Dying Declaration).

But consider this hypothetical: A person breaks into a home and brutally stabs the husband and wife inside. The wife dies instantly. The husband, despite having lost a lot of blood, and while fading in and out of consciousness, manages to call his brother and mumble, "John Smith did this. He killed her, and he killed me, too" before passing out.

Miraculously, the brother summons an ambulance in time to stabilize the husband and get him to the hospital, where he slips into a coma that lasts through trial.

The prosecutor has a good argument for claiming that the husband's statement to his brother is a Dying Declaration, notwithstanding the fact that the husband is on life support in a hospital, instead of 6 feet under. He is incapacitated, and that is sufficient. The hearsay argument is going to probably be about whether he was in imminent expectation of death when he made the statement, and it will likely get in.

Last edited by Moriarty; 06-11-2016 at 06:28 PM.