EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, January 11, 2021

California Case Highlights Differences Between Dying Declarations Exceptions Under California & Federal Rules

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Conversely, California's "dying declaration" hearsay exception does not contain the case limitation that is in the federal rule. Cal. Evid. Code § 1242 states that

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.

Therefore, while the federal rule would not apply in a robbery prosecution, the California rule could, which takes us to Smith v. Davis, 2020 WL 3488035 (N.D.Cal. 2020).

In Davis, there was a 

robbery of Lang's Jewelry Store (“Lang's”) near Union Square in San Francisco....Late on Sunday, April 7, 2003, the robbers entered the vacant restaurant next door to Lang's, cut a hole in the wall adjoining the vacant restaurant to Lang's safe room, and entered the safe room....When the store employees came in the following morning, two robbers were waiting and forced them to open the store's safes....The robbers tied up the employees and dumped jewelry into bags, ultimately absconding with over four million dollars’ worth of Lang's merchandise....During the robbery, the employees also saw a third person in the vacant restaurant through the hole in the wall; they were unable to identify that person....An employee identified petitioner's brother, Dino Smith, as one of the robbers....Dino Smith was convicted by jury trial. Id. Additionally, fingerprint evidence connected George Turner to the robbery....Mr. Turner was arrested wearing a watch stolen from Lang's, and his hotel room contained a bag of Lang's jewelry worth over $650,000. Id. He was convicted after taking an Alford plea

After Turner was convicted, he brought a habeas petition in federal court supported by "a declaration from George Turner, now deceased, who was convicted in the robbery....Mr. Turner's declaration states petitioner was not involved in the robbery and that Deputy District Attorney Jerry Coleman offered Mr. Turner leniency for not testifying on petitioner's behalf."

Now, if Davis had been prosecuted in federal court, there would have been no argument that Turner's declaration was admissible because it was a robbery prosecution, not a homicide prosecution. But, as noted, this case limitation doesn't apply in California court.

Nonetheless, the court still found Turner's declaration inadmissible because (1) before Turner's declaration, his "doctor allegedly gave him a prognosis of “one year +/-," meaning he didn't believe his death to be imminent when he made it; and (2) the declaration did not concern the cause and circumstances of impending death (the robbery had nothing to do with Turner dying).



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There's no link to the case to get the definitive answer, so I'm going out on a limb here, but just generally speaking, wouldn't a federal habeas case involve applying the federal, not state, rules?

Even then, I suppose on principle at least 804(b)(2) would still be available given that habeas is a sort of quasi "civil case", but as you point out, it makes no difference as a practical matter because the affidavit wouldn't qualify under either standard.

Posted by: hardreaders | Jan 11, 2021 3:23:53 PM

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