640.60 DYING DECLARATION – HOMICIDE
Refer:
- ORS 165.540 Obtaining Contents of Communications
- Oregon Evidence Code – Rule 804(3)(b) Dying Declaration, defined
PROCEDURE (640.60)
Directive Specific Definition
Dying declaration: “A statement made by a declarant while believing that death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death” (Oregon Evidence Code – Rule 804(3)(b).
Member Responsibilities (640.60)
It must appear that the person making a dying declaration is aware of their impending death. This need not necessarily appear from an expressed statement, but may be inferred from signs, nods, pressure of the hand, or pointing to visible persons or objects in answering leading questions.
Whenever possible, a dying declaration should be taken from a victim when it is evident that the injured person may die. A dying declaration, if at all possible, should be reduced to writing, signed by the person making the declaration, and duly witnessed.
a. When there is neither time nor opportunity to reduce the statement to writing, the words used are admissible as evidence. If the member receiving them cannot remember the exact language, the member should state the substance, but it must be sufficiently clear and definite to indicate precisely the meaning and intent of the person making the statement.
b. The statement, or substance of the statement, should be recorded in the member’s notebook.
A member taking a dying declaration should first ask the injured person, in the presence of witnesses, if the person believes that they are about to die. After the injured person has answered this question in the affirmative, the member should proceed with the statement in the presence of witnesses. When the member-in-charge of the scene of a crime, or in a hospital, is informed by a licensed physician that the criminally injured person cannot recover, the member will immediately notify a supervisor and the Detective Division (Detectives).
Detectives will dispatch a member of their division, if one is not already present, to take the statement of the dying person. In the event the condition of the injured person does not permit waiting for a supervisor or detective, the member who is present and in charge, will proceed at once to obtain a dying declaration in the presence of witnesses. The dying declaration may be tape recorded if the dying person is specifically informed according to ORS 165.540. Example:
I, __________________, believing that I am about to die and having absolutely no hope of recovering, do hereby solemnly declare that __________________ (name of accused), did on or about the_____ day of _______________ A.D., 200__, in the City of __________________, County of __________________, (here give the detail if injuries inflicted, or if a poisoning, state the detail as fully as possible).
I hereby declare that the above statement is the truth, the whole truth, and nothing but the truth, and that it is made by me under the fixed belief that I am about to die and I look to death as inevitable and at hand.
__________________
Signature
Witnesses:
__________________
__________________
Dated, Portland, Oregon __________________ 20_____
In the event the person accused or suspected of inflicting the injury is in custody, they will be brought before the dying person for the purpose of identification. This should be done in the presence of witnesses so that they may be able to testify as to the manner in which identification was made.