here you go ocean....hopefully this explains why the judge didn't allow that one text in that odin sent to his sister.....he didn't come right out and say "he's going to kill me" per say and it was "imminent" so it was not considered a dying declarance
Some states allow hearsay from dead people under the exception "declarant unavailable" and Mass. is one of them. However, only certain types of statements would come in under that exception:
Section 804. Hearsay Exceptions; Declarant Unavailable(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement, or
(2) refuses to testify [exception not recognized], or
(3) testifies to a lack of memory [exception not recognized], or
(4) is unable to be present or to testify at the hearing because of death or then-existing physical or mental illness or infirmity, or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.
A declarant is not unavailable as a witness if the unavailability is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Prior Recorded Testimony. Testimony given as a witness at another trial or hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in interest, had an opportunity and a similar motive to develop the testimony by direct, cross-, or redirect examination.
(2) Statement Made Under Belief of Impending Death. In a prosecution for homicide, a statement made by a declarant-victim under the belief of imminent death and who died shortly after making the statement, concerning the cause or circumstances of what the declarant believed to be the declarant’s own impending death or that of a co-victim.
(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. In a criminal case, the exception does not apply to a statement that is offered to exculpate the defendant or that is offered by the Commonwealth to inculpate the defendant, and that tends to expose the declarant to criminal liability, unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(4) Statement of Personal History.
(A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, or ancestry, even if the declarant had no means of acquiring personal knowledge of the matter stated.
(B) A statement regarding foregoing matters concerning another person to whom the declarant is related [exception not recognized].
(5) Statutory Exceptions in Civil Cases.
(A) Declarations of Decedent. In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversation between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.
(B) Deceased Party’s Answers to Interrogatories. If a party to an action who has filed answers to interrogatories under any applicable statute or any rule of the Massachusetts Rules of Civil Procedure dies, so much of such answers as the court finds have been made upon the personal knowledge of the deceased shall not be inadmissible as hearsay or self-serving if offered in evidence in said action by a representative of the deceased party.
(C) Declarations of Decedent in Actions Against an Estate. If a cause of action brought against an executor or administrator is supported by oral testimony of a promise or statement made by the testator or intestate of the defendant, evidence of statements, written or oral, made by the decedent, memoranda and entries written by the decedent, and evidence of the decedent’s acts and habits of dealing, tending to disprove or to show the improbability of the making of such promise or statement, shall be admissible.
(D) Reports of Deceased Physicians in Tort Actions. In an action of tort for personal injuries or death, or for consequential damages arising from such personal injuries, the medical report of a deceased physician who attended or examined the plaintiff, including expressions of medical opinion, shall, at the discretion of the trial judge, be admissible in evidence, but nothing therein contained which has reference to the question of liability shall be so admissible. Any opposing party shall have the right to introduce evidence tending to limit, modify, contradict, or rebut such medical report. The word “physician” as used in this section shall not include any person who was not licensed to practice medicine under the laws of the jurisdiction within which such medical attention was given or such examination was made.
(E) Medical Reports of Disabled or Deceased Physicians as Evidence in Workers’ Compensation Proceedings. In proceedings before the industrial accident board, the medical report of an incapacitated, disabled, or deceased physician who attended or examined the employee, including expressions of medical opinion, shall, at the discretion of the member, be admissible as evidence if the member finds that such medical report was made as the result of such physician’s attendance or examination of the employee.
(6) Forfeiture by Wrongdoing. A statement offered against a party who forfeits, by virtue of wrongdoing, the right to object to its admission based on findings by the court that (A) the witness is unavailable; (B) the party was involved in, or responsible for, procuring the unavailability of the witness; and (C) the party acted with the intent to procure the witness’s unavailability.
(7) Religious Records. Statements of fact made by a deceased person authorized by the rules or practices of a religious organization to perform a religious act, contained in a certificate that the maker performed such act, and purporting to be issued at the time of the act or within a reasonable time thereafter.
(8) Admissibility in Criminal Proceedings of a Child’s Out-of-*Court Statement Describing Sexual Contact. General Laws c. 233, § 81, was adopted prior to the United States Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), as well as the Supreme Judicial Court’s decisions in Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d 549 (2005), cert. denied, 548 U.S. 926 (2006), and Commonwealth v. Amirault, 424 Mass. 618, 677 N.E.2d 652 (1997). These decisions call into question the constitutionality of this subsection.
http://www.mass.gov/courts/case-lega...arsay.html#804
