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F 2.028
Dying Declaration Exception To Hearsay Rule (EC 1240(a)):
Required Preliminary Facts
The statement of witness ____ has been offered into evidence as a dying declaration. However, you may not consider this evidence for any purpose unless you first find that the following preliminary foundational facts have been proven by the prosecution:
1. The statement was based on the declarant’s personal knowledge; and
2. The statement was made under a sense of immediately impending death.
Points and Authorities
A dying declaration constitutes an exception to the hearsay rule if the statement was made on personal knowledge, which is not disputed here, and “under a sense of immediately impending death.” (EC 1242.) “This sense of impending death may be shown in any satisfactory mode, by the express language of the declarant, or be inspired from his evident danger, or the opinions of medical or other attendants stated to him, or from his conduct, or other circumstances in the case, all of which are resorted to in order to ascertain the state of the declarant’s mind.” (People v. Tahl (67) 65 C2d 719, 725; see also People v. Monterroso (2004) 34 C4th 743, 763.)