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October 5, 2016

New York Appellate Court Limits the Dying Declaration Exception

By Michael H. Joseph

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Our White Plains criminal defense attorneys keep up to date on changes in the law as it relates to civil rights and criminal defense. One of the firmest beliefs among criminal defense lawyers is that the accused has a right to confront their accusers and cross examine those who give evidence against them. This fundamental principal prevents evidence from going before a jury without being challenged and is one of the fundamental principles underlying the hearsay rule. The hearsay rule which is a common law rule that prevents out of court statements from being stated to the jury, when the statement is offered for the truth of the matter asserted.

Since the hearssay rule is intended to ensure the reliability of the evidence that gets offered in Court, the Courts have been hesitant to create exceptions to the hearsay rule and have done so when there are indicia of reliability. One such exception is the dying declaration. The underlying theory of the dying declaratoin is that if someone is under the fear of impending death, they are likely to tell the truth as to the cause of their death.

In a recent decision, the Appellate Court reversed the trial court and ordered a new trial for two men who were convicted in the Bronx criminal court of arranging the murder of an alleged drug dealer who made dying declarations implicating the two defendants in the crime, The officer was allowed to testify that the victim stated that the two defendants were involved and the First Department Appellate Department in Manhattan held that declarations were mere expression of beliefs and suspicions rather than statements of facts that a living witness could provide on the stand.. The Court held that although the dying declarant may accuse his or her killer in conclusory language, the declaration is kept out if the setting of the occasion satisfies the judge, or should reasonably satisfy the Judge, that the speaker is giving expression to suspicion or conjecture, and not to known fact. So if the victim says, it was John who shot me that would be admissible whereas, if he said I think it was John, that would not be admissible.

Our New York City criminal defense attorneys applaud the tightening of this exception to the hearsay rule because it allows testimony, which may be unreliable and is likely to cause convictions of innocent people through junk evidence.

 
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