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March 29, 2016 | Author: | Posted in alternative medicine, health and medicine

p Under Federal Rule of Evidence 804 on hearsay exceptions , the following is not excluded by the hearsay rule if the declarant is unavailable as a witness . or in a prosecution for homicide or in a civil action or proceeding , a statement made by a declarant while believing that the declarant ‘s death was imminent , concerning the cause or circumstances of what the defendant believed to be impending death , [ Federeal Rule of Evidence , 804 (b (2 )] Federal Rules of Evidence HYPERLINK “http /www .cornell .edu /rules /fre www .cornell .edu [banner_entry_middle]

/rules /fre / ] , the testimony of the deceased victim may be used as evidence only for the fourth robbery , excluding the three previous robberies and murders committed . The statement of the deceased prior after being critically wounded as well as the subsequent identification of the perpetrator from a photo array is admissible in court . This falls within the purview of a dying declaration wherein it is considered as an exception to the hearsay rule because the deceased being the declarant made the statement fully conscious as pain medication was withheld at his request and that the danger of imminent death was substantially conclusive

Moreover , in the preliminary hearing conducted with the presence of the both parties and the judge , identification of the perpetrator of the fourth robbery was concretely made by the deceased and under Federal Rule 804 , even if the store owner did not state that he believed he was going to die , a victim is not required to state explicitly that he believes death is imminent but rather the store owner ‘s impending death can be summarized and inferred from the nature and extent of his wounds Under People vs Monteroso , the California Supreme Court held that the statement of the homicide victim describing his killer was a dying declaration under California law and that as such , it did not violate the confrontation right of the accused (Freidmann , Richard , The Confrontation Blog , HYPERLINK “http /confrontationright .blogspot .com /2004 /12 /forfeiture-and-dying-dec larations .html http /confrontationright .blogspot .com /2004 /12 /forfeiture-and-dying-decl arations .html

The unavailability of the victim store owner does not go against the Sixth Amendment ‘s Confrontation Clause as the victim was already dead prior to the trial . Certainly , the defendant would have no means to cross-examine the victim during the trial itself . According to Justice Antonin Scalia , Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable , and only where the defendant has had a prior opportunity to cross-examine (Scott Lewis , Wisconsin Law Journal , 2004 , HYPERLINK “http /www .wislawjournal .com /archive /2004 /0317 /confrontation-0317 .html http /www .wislawjournal .com /archive /2004 /0317 /confrontation-0317 .html . theless , the victim ‘s testimony can certainly be used as evidence against the defendant and it is plainly conclusive that the testimony of the victim falls within the purview of the traditional testimonial evidence where the right to confrontation applies . More so that the Crawford decision allowed the possibility of a testimonial dying declaration was made… [banner_entry_footer]


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