2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 25 - Evidence- General Provisions
§ 13-25-119. Dying Declarations

1. The dying declarations of a deceased person are admissible in evidence in all civil and criminal trials and other proceedings before courts, commissions, and other tribunals to the same extent and for the same purposes that they might have been admissible had the deceased survived and been sworn as a witness in the proceedings, under the following restrictions. To render the declarations of the deceased competent evidence, it must be satisfactorily proved:
   1. That at the time of the making of such declaration he was conscious of approaching death and believed there was no hope of recovery;
   2. That such declaration was voluntarily made, and not through the persuasion of any person;
   3. That such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement;
   4. That he was of sound mind at the time of making the declaration.

History. Source: L. 37: P. 557, § 1. CSA: C. 63, § 21. CRS 53: § 52-1-20. C.R.S. 1963: § 52-1-20. History. Source: L. 37: P. 557, § 1. CSA: C. 63, § 21. CRS 53: § 52-1-20. C.R.S. 1963: § 52-1-20.

Law reviews. For article, “A Voice from the Grave: Dying Declarations in Colorado”, see 15 Dicta 127 (1938). For article, “Dying Declarations”, see 16 Dicta 379 (1939). For note, “Dying Declarations in Colorado”, see 21 Rocky Mt. L. Rev. 106 (1948). For article, “Hearsay in Criminal Cases Under The Colorado Rules of Evidence: An Overview”, see 50 U. Colo. L. Rev. 277 (1979).

This section is not unconstitutional on its face. Dying declarations are not subject to the confrontation clause, and, therefore, not subject to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). People v. Cockrell, 2017 COA 125 , __ P.3d __.

It is admission of declarations resulting from persuasion or leading questions that this section seeks to prohibit. People v. Mackey, 185 Colo. 24 , 521 P.2d 910 (1974).

Fact that declaration was in response to question does not violate either subsection (1)(b) or (1)(c) of this section. People v. Mackey, 185 Colo. 24 , 521 P.2d 910 (1974).

A voluntary statement, as laid out in subsection (1)(b), is not synonymous with spontaneous. People v. Cockrell, 2017 COA 125 , __ P.3d __.

Victim's statements, though made in response to repeated questioning, were voluntarily made. People v. Cockrell, 2017 COA 125 , __ P.3d __.

Declarant need not declare that he has sense of impending death. To make a dying declaration admissible in evidence it is not necessary that the declarant should have stated that at the time it was made under a sense of impending death. It is enough if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger. Dolan v. People, 168 Colo. 19 , 449 P.2d 828 (1969).

Deceased motorist's statement, in regard to collision, admitted under this section where all the essential elements of a dying declaration under this section were positively established. Barsch v. Hammond, 110 Colo. 441 , 135 P.2d 519 (1943).

Statements made two months prior to death admissible. Where a victim of homicide caused by an abortion made statements two months before her death as to who performed the unlawful operation, knowing at the time that death was inevitable, such statements would be admissible under this section. Ferguson v. People, 118 Colo. 54 , 192 P.2d 523 (1948).

In an abortion case where deceased was not conscious of approaching death, and where it was not a voluntary statement, but was made through persuasion by her physician in order to obtain a history of her case, her statement did not satisfy the requirements of this section so as to make it admissible. Polly v. People, 107 Colo. 6 , 108 P.2d 220 (1940).

Judge passes on admissibility. The rule as to determination of the sufficiency of the foundation proof which will allow dying declarations to be admitted into evidence is that the judge is to pass on the preliminary conditions necessary to the admissibility. People v. Mackey, 185 Colo. 24 , 521 P.2d 910 (1974).

After dying declaration has been admitted, the weight to be given to it is matter exclusively for jury. People v. Mackey, 185 Colo. 24 , 521 P.2d 910 (1974).

Applied in People v. Howard, 198 Colo. 317 , 599 P.2d 899 (1979); People v. Lagunas, 710 P.2d 1145 (Colo. App. 1985).