Most people are familiar with the word hearsay as they have heard the term on TV shows and other places. The evidentiary rules regarding hearsay are often misunderstood, not just by the general public, but also by lawyers. Basically, hearsay is a statement by a person not in court that one side is attempting to use in court to prove the truth of the matter referenced in the statement. As a simple example, if Bob comes in to court and tells the jury that Steve told Bob that Defendant committed the robbery, Bob’s testimony is hearsay. As a general rule, hearsay is not admissible in court because the Defendant has a right to question Steve about what he saw, and he cannot do that if Steve is unavailable and the jury only hears what Steve allegedly saw through Bob’s testimony. However, there are exceptions to the hearsay rule.
One exception is called the dying declaration. In a recent murder and armed robbery case south of Jacksonville, Florida, shortly after the incident, the police saw the victim in the hospital. The police officers showed the victim a photo lineup which included the defendant’s picture. The victim could not speak, but he was apparently able to blink signifying an affirmative response when the police officers showed the victim the picture of the defendant. The victim later died, and the police officer came to court during the defendant’s trial and testified the victim blinked while looking at the defendant’s picture in the photo lineup to indicate the defendant was the person who robbed and shot him.
The criminal defense attorney argued to keep the evidence of this identification out of court claiming it was inadmissible hearsay. Inadmissible hearsay does not have to be an actual statement; it can also be an assertion like a gesture, pointing or blinking. However, the court disagreed. Under the dying declaration hearsay exception, if a person makes a statement or assertion while he/she reasonably believes his/her death is imminent and certain and the statement is concerning the cause of that death, that statement may be admissible hearsay in court. The witness does not need to expressly state that he/she knows death is imminent and certain if it is apparent from the circumstances that the witness would reasonably believe he/she is about to die.
In this case, the state presented evidence that the victim was in grave condition and it was clear that he was about to die. Because of that, the court found that the dying declaration exception to the hearsay rule applied, and the police officer was allowed to testify to the victim’s identification of the defendant as the robber and shooter. The obvious downside to the defendant was that the state presented critical evidence of his guilt without the defendant’s criminal defense lawyer having an opportunity to cross-examine the victim about this hearsay evidence.