PUBLISHED: State v. Kanem Williamson

The dying declaration hearsay exception does not just apply when someone is dying, it applies, as the New Jersey Supreme Court cited in State v. Williamson,  when there is a "settled hopeless expectation that death was near at hand." (internal brackets omitted).

In Williamson, the defendant shot someone 4 times, then told his father about it. His father told the cops, so a cop took the defendant's photo to the victim's hospital bed. 

Because the victim was unable to move and had a breathing tube, the officer asked her a series of yes/no questions ending with him showing the photo of the defendant to the victim and her nodding that it depicted the shooter.

Medical personnel had told the victim she could die. (They did not tell she would probably die, just that she could*.) 

The victim survived for another 11 months.

And the New Jersey Supreme Court held that her hospital identification of the defendant was admissible as a dying declaration.

So, just how settled does your settled hopeless expectation of death have to be before the declaration is admissible? Not very.

 

 

* This is the part that the Supreme Court fudged reviewed using the abuse of discretion standard in the NJRE 084(b)(2) analysis for a 'statement under belief of imminent death'.