EVIDENCE - DYING DECLARATIONS
[NO INSTRUCTION SHOULD BE GIVEN]
With the adoption of the Oklahoma Evidence Code, the jury should no longer be instructed on how to determine whether out of court statements satisfy the elements of the dying declaration exception to the hearsay rule, because the determination of most preliminary fact questions relating to the admissibility of evidence is for the judge, rather than the jury. See Committee Comments to OUJI-CR 9-17, supra.
Section 2804(B)(2) of the Oklahoma Evidence Code, 12 O.S. 1991, § 2804(B)(2), is identical to the Federal Rule, and provides an exception to the rule against hearsay, "[i]n a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death."
Dying declarations have traditionally been accorded admissibility because they derive a certain trustworthiness from the conviction that a person is disinclined to hazard a meeting with the Almighty with a lie staining his lips. For Oklahoma cases decided before the adopted of the Oklahoma Evidence Code concerning the dying declaration exception, see Jones v. State, 94 Okl. Cr. 359, 236 P.2d 102 (1951); Graham v. State, 80 Okl. Cr. 159, 157 P.2d 758 (1945); Looper v. State, 42 Okl. Cr. 341, 276 P. 503 (1929); Beason v. State, 18 Okl. Cr. 388, 195 P. 504 (1921).