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17. Is the affidavit properly considered by the court in ruling on the admissibility of the pedestrian's statement?
As a foundation for introducing evidence of the pedestrian's statement, the executor offers to the court the doctor's affidavit that the doctor was the intern on duty the day of the pedestrian's death and that several times that day the pedestrian had said that he knew he was about to die.
A pedestrian died from injuries caused when a driver's car struck him. The pedestrian's executor sued the driver for wrongful death. At trial, the executor calls a nurse to testify that two days after the accident, the pedestrian said to the nurse, «The car that hit me ran the red light.» Fifteen minutes thereafter, the pedestrian died.
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Hearsay is a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c).
In a prosecution for homicide or a civil action, a statement made by the now-unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible. Fed. R. Evid. 804(b)(2). The declarant need not actually die, but he must be unavailable at the time the statement is offered. Under the traditional view, only followed by some states, the statement was admissible only in homicide prosecutions (not civil actions) and then only if the declarant had died.
D is correct. The rule is that the court determines the preliminary question of admissibility, and is not bound by the rules of evidence and may consider hearsay. Therefore, the judge in this case may consider the affidavit, even if hearsay, to determine the admissibility of the pedestrian's statement.
A is incorrect. Even though the affidavit is considered hearsay, the rule for preliminary admissibility determinations allows the court to consider hearsay. Therefore, the judge may properly consider the affidavit.
B is incorrect. The court may properly consider hearsay such as the affidavit when determining the admissibility of evidence, which means there is no need for any hearsay exception to apply. Moreover, even though the traditional view of dying declarations only allowed them in criminal homicide prosecutions, the modern view allows them in civil actions as well.
C is incorrect. The affidavit is hearsay, which the judge may properly consider in preliminary determinations of admissibility, and therefore, no exception is necessary. The affidavit itself is also not a statement of then-existing mental condition; it is a statement of what the pedestrian said and did.