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]
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!
