There are situations when even the Supreme Court is forced to deviate from the strict letter of law in order that the ends of justice may be achieved. The US Constitution should not be interpreted in the most restrictive manner. If circumstances demand that the rules be relaxed in order to protect public interest, the Supreme Court may make exceptions to well-recognized rules. Dying declarations are such exceptions. This research paper seeks to exhaustively discuss the legal intricacies and the evolution of the concept of dying declaration from the time of its recognition by the English courts in the 18th Century until the time it was finally adopted by US courts and its scope extended from criminal prosecutions to include civil proceedings.
Three Kinds of Evidence
In all criminal, civil and administrative proceedings, evidence is necessary to prove a particular fact. There are three kinds of evidence that may be presented in court to prove a particular fact. These are: a) object or physical evidence; b) documentary evidence; and c) testimonial evidence. Object evidence refers to any tangible object that may used to prove a particular fact. Documentary evidence refers to the contents of the document that is presented in court to prove a particular fact. Testimonial evidence is that kind of evidence that makes use of testimonies of witnesses or the victims or the accused as evidence to prove a particular fact.
Compared to the Object Evidence and Documentary Evidence, the Testimonial Evidence is considered as the least trustworthy. This is because witnesses can be corrupted to speaking something other than the truth. Moreover, the recollection of the mind is also unreliable especially if the crime happened a long time. Despite being the least trustworthy among all the evidence available, testimonial evidence is one of the most commonly used evidence in court. In fact, research says that eyewitness identification is a major factor in most cases where the accused has been convicted (Monika Jain, 2001, p.1).
Because testimonial evidence is inherently untrustworthy, a number of rules govern the presentation of testimonial evidence in order to ensure that the witnesses to be presented in court are highly credible, trustworthy and reliable. One of these rules is the hearsay evidence rule. Hearsay evidence refers to the kind of evidence the probative force of which depends in whole or in part on the competency and credibility of some persons other than the witness by whom it is sought to produce it (“Law of Evidence Amendment Act of 1988”). In simple terms, these are “statements of a person other than the witness who is testifying which are being offered to prove the truth of what was asserted” (Elizabeth A. Martin, 2002, p.1). Hearsay evidence is generally not admissible as evidence in court.
Thus, person A cannot be presented in court to testify that he heard person B saying that person C killed the victim to prove that person C killed the victim. Only the person who actually heard that statement from its source can be presented in court to testify as to the truth of the fact being asserted. The testimony of a witness is regarded as hearsay when the witness testifies to the declarations of another for the purpose of proving the facts asserted by the other person or declarant.
Generally, hearsay evidence is not allowed to be presented in court. The reason for this is that in hearsay evidence the accused or the person against whom the testimonial evidence is presented is deprived of the opportunity to cross-examine the witness (“Hearsay evidence stays generally inadmissible; Part 13 of our series to help ensure substantive fairness in dismissals”, 2008, p.1).
Under the constitution, an accused has the right to cross-examine the witness presented against him. Thus, if a person other than the witness is presented in court to testify the accused will be deprived of his opportunity to cross-examine the witness and to test whether what the witness is lying or not. Moreover, it deprives the accused, judge and the jury the reasonable opportunity to examine the demeanor of the witness during cross-examinations. The requirement of confrontation is based on common sense since a person who lies in the witness stand will be betrayed by the manner he answers the question or the manner by which he reacts to the questions presented to him.
There are, however, several well-recognized exceptions to the hearsay evidence rule. One of these exceptions is the dying declaration in which the declaration of a dying person made under the consciousness of an impending death is received in evidence on the cause and the surrounding circumstances of his death provided that the issue is the subject of his death. For example, person A was fatally shot in the body. Because of the massive loss of blood and the realization that his death is near, person A relays to person B the incident and that person C shot him. Such evidence can be used against person C and that person B may be presented in court to testify to such fact. Although this is clearly hearsay since the person who has personal knowledge of the facts and circumstances of the cause of his death is the victim himself, such however is no longer possible. Necessity demands that this evidence be allowed because it will no longer be possible to produce a deceased person to testify in court.
Dying declarations are admissible in court as exception to the hearsay evidence rule. One reason why it is admitted is the Latin principle known as Nemo Moriturus praesumitur mentire. It means that a man will not meet his maker with a lie in his mouth. It presupposes that a reasonable person who is about to die will not attempt to lie about something especially if he thinks that he is dying.
Moreover, the reasons for the admissibility of dying declarations as an exception to the hearsay rule are necessity and inherent trustworthiness. Necessity, since the declarant’s death renders impossible his taking the witness stand. Further, in the absence of any other equally satisfactory proof of crime the courts allow dying declarations to prevent a failure of justice. Trustworthy, because the declaration is made in extreme situation wherein the party is at the point of death and every hope is gone. At this point there is no motive for committing falsehood. The mind is thus induced to speak only the truth.
Review of Related Literature
Rex v. Woodcock, (1789) 168 Eng. Rep. 352 (K.B.) Dying declaration was first recognized in England in the case of Silvia Woodcock. Two days before she died, she revealed to a magistrate that William Woodcock, her husband, beat her up. At this point the court fully understood that the wife could not be presented in court under the hearsay evidence rule. Yet, the real witness is also not available as she is already dead. As a solution, the court formulated an exception to the hearsay evidence rule which is a person who has received a fatal blow and who must be speaking at the moment of death when there is no hope of recovery, to wit:
“The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is created by a positive oath administered in a Court of Justice.” (Rex v. Woodcock)
US Federal Rules of Evidence The concept of dying declaration was eventually borrowed by the US courts during the 19th Century. Common-law courts adopted the principle of dying declaration as an exception to the hearsay evidence rule. However, unlike in the English courts, its use in common-law courts in the US was subject to certain limitations – it was limited to homicide prosecutions and that the declarant must have actually died after making the statement.
In 1975 the concept of dying declaration finally became part of the Federal Rules of Evidence, to wit:
“The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.” (Federal Rules of Evidence)
It is immediately apparent that the scope of the dying declaration was expanded in the Federal Rules of Evidence to include even civil actions. The rationale behind the expansion is the principle that if dying declarations are admissible in criminal prosecutions which is a proceeding where the accused may be deprived of life or liberty, then it should also be allowed in civil prosecutions which do not pose serious harm to the accused
Louisiana Federal Rule of Evidence The evolution towards a more liberal admission of dying declaration continued with the adoption by the Louisiana of Louisiana Code of Evidence 804 (B)(2), to wit:
““B. Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(2) Statement under belief of impending death. 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.” (Louisiana Federal Rule of Evidence)
The Louisiana Federal Rule of Evidence is substantially the same as that of the Federal Rule of Evidence except for the fact that there is no explicit statement that the same is applicable only in prosecution for homicide and civil proceedings. The intention of the state of Louisiana is to further expand the application of dying declaration to all civil and criminal proceedings. This is based on the principle that when the law does not exclude it includes. If the law does not provide for specific enumeration of exceptions, the only conclusion that can be gleaned from it is that the state of Louisiana seeks to remove the barrier for limiting the admission of dying declaration to homicide cases.
Mattox v. United States (156 US 237) The case of Mattox v. United States involved the issue of the admissibility of testimony of Thomas Whitman and George Thornton. The Supreme Court touched on the issue of dying declaration and affirmed its admissibility as evidence. Whitman and Thornton are two central witnesses who had testified against defendant Mattox at his first trial. They died before the second trial commenced. As a result, they were unavailable for cross-examination at the second trial. The transcribed copy of the stenographic notes of the testimony of the witnesses was admitted in evidence. Defendant contends that while the two witnesses have been fully cross-examined during the trial, the admission of their testimony for the second trial constituted a violation of the right of the accused to confront the witnesses against him.
In ruling in favor of the admissibility of the stenographic notes, the Supreme Court declared that a technical adherence to the provisions of the US Constitution is not always mandatory. Dying declaration is an example of a testimony which is allowed even if it is contrary to the strict application of the constitution. Dying declarations are rarely made in the presence of the accused and made without opportunity for examination and cross-examination. In these cases, the witness is not brought face to face with the accused but it is treated as a competent testimony that is admissible in court.
Shepard v. US (290 US 96) The issue in this case is whether the absence of hope and recovery is essential in dying declarations. This case involves Charles A. Shephard who was convicted for the murder of his wife Zenana Shephard. The evidence used to convict him was the testimony of the nurse of his wife who testified before the court. It appeared that Mrs. Shephard had asked the nurse to go to the closet to get a bottle of whisky and revealed to her that he had just drunk from the bottle before she collapsed. She was suspicious that the bottle of whisky may contain poison since it smelled and tasted strange. She also said that that ‘Dr Shephard has poisoned me.’
In ruling that the testimony used to convict Charles Shephard is not admissible as evidence, the Supreme Court ruled that dying declaration requires that the declarant must have spoken without hope of recovery and shadow of impending death. In this case, the court found nothing in the condition of Mrs. Shephard that supports the conclusion that the hope had been lost. At the time, Mrs. Shepard regained consciousness which is two days after her collapse, it would be presumed that at the time of her conversation with the nurse, her mind had cleared up and her speech had become rational. Her condition had in fact substantially improved. The requirement of absence of hope of recover and knowledge of imminence of death is absent in this case.
Jessica C. Jarreau. “Dying declarations in an ever-changing world: a peek into the implications of expansion.” One of the limitations for the admissibility of dying declarations is that the testimony must pertain only to the cause and circumstances of his death. This requirement is based on the reason for admitting dying declarations which is the presumption that a man who is about to meet his maker is not likely to lie. It is not logically possible for a man who thinks he is about to die to identify and name a person other than his killer. Moreover, it is also unlikely that the victim would want someone other than the person responsible for committing the crime against him to be implicated in the crime.
In summary, analysis of the Supreme Court decisions and opinions of respected authors reveal that to be admissible dying declarations must comply with a number of requisites. The first requisite is that the death must be imminent and the declarant must be conscious of that fact. The rule is that in order to make a dying declaration admissible as evidence, the declarant must believe that death is imminent and inevitable. It is not necessary that the declarant must be able to foretell his death. It is however required that the declarant must have abandoned all hope of living and that he has looked at death as impending.
The second requisite is that there must be present preliminary facts which bring the declaration within its scope. It necessarily implies that the accused must be seriously wounded and that he thought would not survive. It is not, however, necessary that the declaration of the declarant that he is about to die be made after his revelation. Dying declaration is admissible whether it was made before or after the declaration. The only requirement is that the declaration was made with the consciousness that he is about to die.
The third requisite is that the declaration must relate to the facts and circumstances pertain to the fatal injury or death. The declaration must relate to the declarant’s cause of death. It includes facts relating to the assault itself, the facts surrounding it, and all others before or after the attack that has a direct causal connection with it. Thus, it must pertain to how he was stabbed, who stabbed him, and whey he was stabbed.
The fourth requisite is that the declarant himself must have been competent to testify had he survived. It must be shown first by the party seeking the admission of the dying declaration that the declarant would have been a competent witness if he had lived. An insane person or a child who is too young or a person who is too old such that they are incapable of understanding their own statements and its repercussions by reason of partial unconsciousness cannot be competent witness. Thus, their dying declarations are not admissible in evidence.
The results of the research reveals that hearsay evidence is generally not admissible in evidence since they deprive the accused of the opportunity to meet the witness, cross-examine him, and observe his demeanor while he is being cross-examined. However, there are also well-recognized exceptions to the hearsay evidence rule. One of these exceptions is the concept of dying declaration. Dying declarations, as an exception to the hearsay evidence rule is recognized not only by the US Federal Rule of Evidence and by statutes enacted by different states. It only affirms that since it was first adopted in the United States, dying declaration continues to be adopted not only by the lower courts but even by higher courts in the state and federal level.
It can thus be concluded that while there are strict rules provided for the by constitution and by laws, the same may still admit of certain exceptions especially if the strict application of the rules will lead to manifest injustice. Laws are made for the purpose of securing the common good not for causing injustice. The continued recognition by the Supreme Court of dying declarations are testament that rules may be bent if it is necessary to secure to everybody the common good.
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Jain, Monika. "Mitigating the dangers of capital convictions based on eyewitness testimony
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Mattox v. United States (156 US 237)
Rex v. Woodcock, (1789) 168 Eng. Rep. 352 (K.B.)
Shepard v. US (290 US 96)