Dying declaration
In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay, but may in common law nonetheless be admitted as evidence in criminal law trials because it constituted the last words of a dying person. The rationale is that someone who is dying or believes death to be imminent would have less incentive to fabricate testimony, and as such, the hearsay statement carries with it some reliability.
History
In medieval English courts, the principle originated of Nemo moriturus praesumitur mentiri — "no-one on the point of death should be presumed to be lying". An incident in which a dying declaration was admitted as evidence has been found in the 1202 case of Geoffrey v Goddard.Tests for admissibility
In common law, a "dying declaration" must be a statement made by a deceased person who would otherwise have been a credible witness to their own death by murder or manslaughter, and was of "settled hopeless expectation of death".England and Wales
The admissibility of hearsay evidence in criminal proceedings has been governed by the Criminal Justice Act 2003 which effectively replaced the common law regime and abolished all common law hearsay exceptions including the dying declaration exception. An original statement made by a dead person may now be admissible under the statutory "unavailability" exception subject to the courts' judicial discretion to exclude unreliable evidence.United States
Under the Federal Rules of Evidence, a dying declaration is admissible if the proponent of the statement can establish all of the following:- The declarant's statement is being offered in a criminal prosecution for homicide, or in a civil action. Some states also permit the admission of dying declarations in other types of cases.
- The declarant is unavailable – this can be established using FRE 804.
- The declarant's statement was made while under the genuine belief that their death was imminent. The declarant does not have to actually die.
- The declarant's statement relates to the cause or circumstances of what they believed to be their impending death.
The statement must relate to the circumstances or the cause of the declarant's own impending death. In 1933, the Supreme Court unanimously determined in Shepard v. United States that the declarant must believe that death in a certainty.. The legal history of this case evidenced that Major Shepard, an army doctor, and his wife had a "testy" relationship but there was some question as to whether she was suicidal or even believed that her death was certain. In the dying declaration of Clifton Chambers in 1988, he stated that ten years earlier, he had helped his son bury a man whom the son had killed by accident. The statement was sufficient cause to justify a warrant for a search on the son's property, and the man's body was indeed found. However, there was no physical evidence of a crime, and since Chambers was not the victim, his dying declaration was not admissible as evidence, and the son was never brought to trial.
The first use of the dying declaration exception in American law was in the 1770 murder trial of the British soldiers responsible for the Boston Massacre. One of the victims, Patrick Carr, told his doctor before he died that the soldiers had been provoked. The doctor's testimony helped defense attorney John Adams to secure acquittals for some of the defendants and reduced charges for the rest.
If the defendant is convicted of homicide but the reliability of the dying declaration is in question, there is grounds for an appeal.
The future of the dying declaration doctrine in light of Supreme Court opinions such as Crawford v. Washington is unclear. Opinions such as Giles v. California discuss the matter, but Justice Ginsburg notes in her dissent to Michigan v. Bryant that the court has not addressed whether the dying declaration exception is valid after the confrontation clause cases.