Reference no: EM133813495

Question

Smedley has been having an affair with Costello's wife. Costello finds out about it and is furious. Costello goes looking for Smedley and finds him on a dark street corner at 1:00 PM after the bars have let out. Costello attacks Smedley with a crowbar, smashing his skull and leaving him bleeding on the street. Costello w runs off. A passerby finds Smedley bleeding and barely conscious. The police and an ambulance are called. The police arrive first and Officer Foreman cradles Smedley's head attempting to render emergency first-aid. Smedley says weakly but coherently (to Foreman), I'm going. I can feel everything slipping away. I was attacked by Costello. He wanted me dead because I was having an affair with his wife." Smedley dies in the ambulance on the way to the hospital. It turns out that Smedley's statement to Foreman is nearly the only evidence against Costello. When he goes to trial, the prosecution wants to put Foreman on the stand and have him repeat what Smedley told him at the scene of the attack. What will be the result and why? Foreman will be allowed to testify as to Smedley's statements. This is a "Dying Declaration" and a clear EXCEPTION to the Hearsay Rule. Foreman will NOT be allowed to testify since Smedley is clearly "The Declarant" obviously cannot be cross-examined by the defense. Foreman will be allowed to testify since he was "responding to an ongoing emergency" and this is an EXCEPTION to the Hearsay Rule. Foreman will not be allowed.