Evidence Question - Dying Declaration

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ILikeTwix

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Evidence Question - Dying Declaration

Postby ILikeTwix » Sat Feb 09, 2019 11:48 pm

Hi,

I'll blame it all on my lack of sleep, sunlight, and sanity.... but these two questions are very similar but have different outcomes. The men in each question gave an out of court statement, thought they were dying, gave statements about their impending death, then elaborated on a murder they committed. Both men are unavailable. Both witnesses were testifying to prove the truth of the matter asserted.

However, the logic given for the answer in question 43 (that the statement doesn’t concern the cause or circumstances of the declarant’s impending death) does not apply to question 62. The statement about killing the police chief (question 62) does not relate to the cause or circumstance of the man's impending death; however dying declaration still applies (unlike question 43). What am I missing?? FML :|

43. A man and a woman were in a car accident. Although the woman was unhurt, the man was severely injured. The man looked at the woman and said, “I know I’m about to die. I never told you this, but me and [the defendant] murdered the doctor last year. He owed us money.” The man then died. The defendant was later prosecuted for the murder, and the prosecution called the woman to testify to the above statement by the man. The man’s statement is

A. Inadmissible hearsay
B. Admissible under the excited utterance exception
C. Admissible as a dying declaration
D. Admissible as a present sense impression

43. Answer: A
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Here, the woman’s statement is hearsay since it is being offered to prove that the defendant really did murder the doctor. The statement is not admissible under the excited-utterance exception because the man’s statement did not relate to the event causing the man’s stress and excitement (namely the car wreck). B is therefore incorrect. The statement is not admissible under the dying declaration exception because it doesn’t concern the cause or circumstances of the declarant’s impending death. C is therefore incorrect. [remaining answer omitted]



62. A man was dying of cancer, and his doctors only gave him a few moments to live. The man gathered his family around his bed, including his brother, and said, “I’m dying. I want all of you to know that [the defendant] and I were the ones who murdered the police chief last year.” Soon thereafter, against all odds, the man recovered and fled to another country. The defendant was later prosecuted for the murder, and the prosecution called the man’s brother to testify to the above statement by the man. The man’s statement is

A. Admissible as a dying declaration
B. Admissible as an excited utterance
C. Inadmissible because the man did not die
D. Inadmissible because it was hearsay not with any exception

62. Answer A
If the declarant is unavailable as a witness, a statement made under the belief of impending death is admissible under an exception to the hearsay rule. While the declarant must be aware of his or her impending death, he or she does not have to actually die. The only requirement is that the declarant is unavailable. Here, since the man has fled and moved beyond the court’s subpoena power, the exception applies. [remaining answers omitted]

nixy

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Re: Evidence Question - Dying Declaration

Postby nixy » Sun Feb 10, 2019 12:11 am

Where are these questions from? Because I would say the second one is wrong for the reason given in the first - the statement has to be about the declarant's own death (its cause or circumstances). Unless the second is state-specific and there's a broader state variation on the rule?

ILikeTwix

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Re: Evidence Question - Dying Declaration

Postby ILikeTwix » Sun Feb 10, 2019 12:26 am

They're both MBE questions from the Strategies and Tactics for the FINZ Multistate Method, 2016. By Steven Finz, Alex Ruskell. Pages 439 and 445. Here's a link to the Google Books version:

https://books.google.com/books?id=St7fD ... 22&f=false

Lancair

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Re: Evidence Question - Dying Declaration

Postby Lancair » Sun Feb 10, 2019 7:06 am

With question 62, the defendant's statement is admissible as an opposing party statement as a co-conspirator or a statement against interest rather than a dying declaration, no?

nixy

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Re: Evidence Question - Dying Declaration

Postby nixy » Sun Feb 10, 2019 9:59 am

Lancair wrote:With question 62, the defendant's statement is admissible as an opposing party statement as a co-conspirator or a statement against interest rather than a dying declaration, no?

It’s not an opposing party statement because the declarant isn’t being prosecuted, his partner is crime is, and it’s not a co-conspirator statement because it’s not made during and in furtherance of the conspiracy. But it does look like it could be a statement against interest (assuming the circumstances sufficiently indicate trustworthiness).

(I asked about the source because it just might not be that good. I’m not an evidence guru by any means but I agree that the second answer seems to contradict the face of the rule.)

ILikeTwix

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Re: Evidence Question - Dying Declaration

Postby ILikeTwix » Sun Feb 10, 2019 11:39 am

It’s a widely used book for the MBE based off of the recommendations I read on this site and it’s published by a well known publisher, Wolters Kluwer.

The answer for 62 is “dying declaration” and the other options you guys mentioned aren’t given as answer options. I don’t get it. :cry: Maybe it’s a mistake and they printed the wrong answers in the book? Does anyone else understand? If not, I’m throwing in the towel, skipping the bar, and becoming a stripper instead!

***0123L

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Re: Evidence Question - Dying Declaration

Postby ***0123L » Sun Feb 10, 2019 12:56 pm

Statement against interest is where my mind went for the second one too, but I'm not sure it applies because the declarant thinks he's dying. 804 requires "so great a tendency to...expose the declarant to civil or criminal liability"...is it really that great a tendency if he thinks he's about to die?

I feel confident it's not a dying declaration though. I think the answer key is just wrong.

nixy

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Re: Evidence Question - Dying Declaration

Postby nixy » Sun Feb 10, 2019 1:46 pm

***0123L wrote:Statement against interest is where my mind went for the second one too, but I'm not sure it applies because the declarant thinks he's dying. 804 requires "so great a tendency to...expose the declarant to civil or criminal liability"...is it really that great a tendency if he thinks he's about to die?

I feel confident it's not a dying declaration though. I think the answer key is just wrong.

Yeah, agree with all this.

b290

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Re: Evidence Question - Dying Declaration

Postby b290 » Sun Feb 10, 2019 6:17 pm

ILikeTwix wrote:Hi,

I'll blame it all on my lack of sleep, sunlight, and sanity.... but these two questions are very similar but have different outcomes. The men in each question gave an out of court statement, thought they were dying, gave statements about their impending death, then elaborated on a murder they committed. Both men are unavailable. Both witnesses were testifying to prove the truth of the matter asserted.

However, the logic given for the answer in question 43 (that the statement doesn’t concern the cause or circumstances of the declarant’s impending death) does not apply to question 62. The statement about killing the police chief (question 62) does not relate to the cause or circumstance of the man's impending death; however dying declaration still applies (unlike question 43). What am I missing?? FML :|

43. A man and a woman were in a car accident. Although the woman was unhurt, the man was severely injured. The man looked at the woman and said, “I know I’m about to die. I never told you this, but me and [the defendant] murdered the doctor last year. He owed us money.” The man then died. The defendant was later prosecuted for the murder, and the prosecution called the woman to testify to the above statement by the man. The man’s statement is

A. Inadmissible hearsay
B. Admissible under the excited utterance exception
C. Admissible as a dying declaration
D. Admissible as a present sense impression

43. Answer: A
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Here, the woman’s statement is hearsay since it is being offered to prove that the defendant really did murder the doctor. The statement is not admissible under the excited-utterance exception because the man’s statement did not relate to the event causing the man’s stress and excitement (namely the car wreck). B is therefore incorrect. The statement is not admissible under the dying declaration exception because it doesn’t concern the cause or circumstances of the declarant’s impending death. C is therefore incorrect. [remaining answer omitted]



62. A man was dying of cancer, and his doctors only gave him a few moments to live. The man gathered his family around his bed, including his brother, and said, “I’m dying. I want all of you to know that [the defendant] and I were the ones who murdered the police chief last year.” Soon thereafter, against all odds, the man recovered and fled to another country. The defendant was later prosecuted for the murder, and the prosecution called the man’s brother to testify to the above statement by the man. The man’s statement is

A. Admissible as a dying declaration
B. Admissible as an excited utterance
C. Inadmissible because the man did not die
D. Inadmissible because it was hearsay not with any exception

62. Answer A
If the declarant is unavailable as a witness, a statement made under the belief of impending death is admissible under an exception to the hearsay rule. While the declarant must be aware of his or her impending death, he or she does not have to actually die. The only requirement is that the declarant is unavailable. Here, since the man has fled and moved beyond the court’s subpoena power, the exception applies. [remaining answers omitted]

ILikeTwix wrote:It’s a widely used book for the MBE based off of the recommendations I read on this site and it’s published by a well known publisher, Wolters Kluwer.

The answer for 62 is “dying declaration” and the other options you guys mentioned aren’t given as answer options. I don’t get it. :cry: Maybe it’s a mistake and they printed the wrong answers in the book? Does anyone else understand? If not, I’m throwing in the towel, skipping the bar, and becoming a stripper instead!


In my mind, I would've went through the following:

- It's already not hearsay so that eliminates D.
- Whether the man dies or not is immaterial in this case, so that eliminates C.
- There's no traumatic experience right before the declaration, so that eliminates B

A is the only one that isn't just outright wrong, So I'd pick it and move on. Part of the "MBE Game" is sometimes eliminating the "more wrong" answers.

I'll look at it later (if the book is what I think it is). However, I agree with others here - I personally think #62's explanation is BS.

My $.02

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SilvermanBarPrep

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Re: Evidence Question - Dying Declaration

Postby SilvermanBarPrep » Tue Feb 12, 2019 3:31 am

I work though the Finz book with my students and that is certainly an error. It's a great book but it does contain a few mistakes, and that is one of them.

Sean (Silverman Bar Exam Tutoring)



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