Pedestrian died from injuries caused when Driver's car struck him. Executor, Pedestrian's executor, sued Driver for wrongful death. At trial, Executor calls Nurse to testify that two days after the accident, Pedestrian said to Nurse, "The car that hit me ran the red light." Fifteen minutes thereafter, Pedestrian died. As a foundation for introducing evidence of Pedestrian's statement, Executor offers to the court Doctor's affidavit that Doctor was the intern on duty the day of Pedestrian's death and that several times that day Pedestrian had said that he knew he was about to die. Is the affidavit properly considered by the court in ruling on the admissibility of Pedestrian's statement? 
No, because it is hearsay not within any exception.  No, because it is irrelevant since dying declarations cannot be used except in prosecutions for homicide.  Yes, because, though hearsay, it is a statement of then-existing mental condition.  Yes, because the judge may consider hearsay in ruling on preliminary questions. 
Question: Pedestrian died from injuries caused when Driver's car struck him. Executor, Pedestrian's executor, sued Driver for wrongful death. At trial, Executor calls Nurse to testify that two days after the accident, Pedestrian said to Nurse, "The car that hit me ran the red light." Fifteen minutes thereafter, Pedestrian died. As a foundation for introducing evidence of Pedestrian's statement, Executor offers to the court Doctor's affidavit that Doctor was the intern on duty the day of Pedestrian's death and that several times that day Pedestrian had said that he knew he was about to die. Is the affidavit properly considered by the court in ruling on the admissibility of Pedestrian's statement? 
A. No, because it is hearsay not within any exception. 
B. No, because it is irrelevant since dying declarations cannot be used except in prosecutions for homicide. 
C. Yes, because, though hearsay, it is a statement of then-existing mental condition. 
D. Yes, because the judge may consider hearsay in ruling on preliminary questions. 
Answer: