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, accurate or not, 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".[1] An incident in which a dying declaration was admitted as evidence has been found in a 1202 case.[2]

Tests for admissibility of a "dying declaration"

In common law, a "dying declaration" must have been 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".[3]

In 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 (except those preserved by s.118) including the dying declaration exception. An original statement made by a dead person may now be admissible under the statutory "unavailability" exception (ss.114 & 116) subject to the courts' judicial discretion (preserved by s.126) to exclude unreliable evidence (i.e. the prejudicial value outweighs the probative value).

In the United States

Under the Federal Rules of Evidence,[4] 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 case.
  • The declarant is unavailable – this can be established using FRE 804(a)(1)-(5).
  • The declarant's statement was made while under the genuine belief that his or her death was imminent. The declarant does not have to actually die.
  • The declarant's statement relates to the cause or circumstances of what he or she believed to be his or her impending death.

Other general rules of admissibility also apply, such as the requirement that the declaration must be based on the declarant's actual knowledge.

The statement must relate to the circumstances or the cause of the declarant's own impending death. For example, 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.[1]

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.[5]

The future of the dying declaration doctrine in light of Supreme Court opinions such as Crawford v. Washington (2004) is unclear (Crawford was decided under the constitution's Confrontation Clause, not the common law). Opinions such as Giles v. California (2008) discuss the matter (although the statements in Giles were not a dying declaration), but Justice Ginsburg notes in her dissent to Michigan v. Bryant (2011) that the court has not addressed whether the dying declaration exception is valid after the confrontation clause cases.

Criticism of Dying Declaration Doctrine

Since the nineteenth century, critics have questioned the credibility of dying declarations. In a state court case, the Wisconsin Supreme Court considered the issue of a dying declaration. The defense pointed out that “[t]his kind of evidence is not regarded with favor.” [6] The defense argued that several factors could undermine the reliability of dying declarations.

Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence.

— Aviva Orenstein, Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence, 2010 U. Ill. L. Rev. 1411, 1460 (2010)[7]

In India

Dying declarations are allowed as evidence in Indian courts if the dying person is conscious of his or her danger, he or she has given up hopes of recovery, the death of the dying person is the subject of the charge and of the dying declaration, and if the dying person was capable of a religious sense of accountability to his or her Maker.[2]

See also

References

  1. ^ a b "Last Words", Brendan I. Koerner, Legal Affairs, November/December 2002. Fetched from URL on 9 May 2011.
  2. ^ a b "Dying Declaration - A Man Will Not Meet His Maker with a Lie in His Mouth", Raghvendra Singh Raghuvanshi, SSRN, 25 February 2010. In turn, this paper's reference to the 1202 date cites "M.N. Howard, "Phipson on Evidence", 15th edn., Sweet & Maxwell, 2000 at Pg. 886." Note: A number of sentences in this SSRN paper seem to be identical to the "Legal Affairs" article by Koerner, without citing Koerner. I do not know how much this impugns this source.
  3. ^ Adrian Zuckerman; Paul Roberts (26 August 2010). Criminal Evidence. Oxford University Press. p. 430. ISBN 9780199231645. Retrieved 12 June 2016.
  4. ^ Dying declaration unreliable: SC acquits two
  5. ^ State v. Dickinson, 41 Wis. 299, 303 (1877)
  6. ^ Orenstein, Aviva (2010). "Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence". University of Illinois Law Review. 2010 (5): 1411.
Ancient document

An ancient document, in the law of evidence, refers to both a means of authentication for a piece of documentary evidence, and an exception to the hearsay rule.

Authentication (law)

Authentication, in the law of evidence, is the process by which documentary evidence and other physical evidence is proven to be genuine, and not a forgery. Generally, authentication can be shown in one of two ways. First, a witness can testify as to the chain of custody through which the evidence passed from the time of the discovery up until the trial. Second, the evidence can be authenticated by the opinion of an expert witness examining the evidence to determine if it has all of the properties that it would be expected to have if it were authentic.

For handwritten documents, any person who has become familiar with the purported author's handwriting prior to the cause of action from which the trial arose can testify that a document is in that handwriting.

There are several kinds of documents which have generally been deemed to be self-authenticating documents. These include commercial labels, newspapers and other periodicals, and official publications of an arm of the government.

A special category of evidence called an ancient document will be deemed authentic if it can be shown to be more than twenty years old, and found in a place and condition that a document of that age would likely be found.

Best evidence rule

The best evidence rule is a legal principle that holds an original copy of a document as superior evidence. The rule specifies that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists and can be obtained. The rule has its roots in 18th-century British law.

Dead on arrival

Dead on arrival (DOA), also dead in the field and brought in dead (BID), indicates that a patient was found to be already clinically dead upon the arrival of professional medical assistance, often in the form of first responders such as emergency medical technicians, paramedics, or police.

In some jurisdictions, first responders must consult verbally with a physician before officially pronouncing a patient deceased, but once cardiopulmonary resuscitation is initiated, it must be continued until a physician can pronounce the patient dead.

Death messenger

Death messengers, in former times, were those who were dispatched to spread the news that an inhabitant of their city or village had died. They were to wear unadorned black and go door to door with the message, "You are asked to attend the funeral of the departed __________ at (time, date, and place)." This was all they were allowed to say, and were to move on to the next house immediately after uttering the announcement. This tradition persisted in some areas to as late as the mid-19th century.

Death rattle

Terminal respiratory secretions (or simply terminal secretions), known colloquially as a death rattle, are sounds often produced by someone who is near death as a result of fluids such as saliva and bronchial secretions accumulating in the throat and upper chest. Those who are dying may lose their ability to swallow and may have increased production of bronchial secretions, resulting in such an accumulation. Usually, two or three days earlier, the symptoms of approaching death can be observed as saliva accumulates in the throat, making it very difficult to take even a spoonful of water. Related symptoms can include shortness of breath and rapid chest movement. While death rattle is a strong indication that someone is near death, it can also be produced by other problems that cause interference with the swallowing reflex, such as brain injuries.It is sometimes misinterpreted as the sound of the person choking to death, or alternatively, that they are gargling.

Dignified death

Dignified death is a somewhat elusive concept often related to suicide. One factor that has been cited as a core component of dignified death is maintaining a sense of control. Another view is that a truly dignified death is an extension of a dignified life. There is some concern that assisted suicide does not guarantee a dignified death, since some patients may experience complications such as nausea and vomiting. There is some concern that age discrimination denies the elderly a dignified death.

Documentary evidence

Documentary evidence is any evidence that is, or can be, introduced at a trial in the form of documents, as distinguished from oral testimony. Documentary evidence is most widely understood to refer to writings on paper (such as an invoice, a contract or a will), but the term can also apply to any media by which information can be preserved, such as photographs; a medium that needs a mechanical device to be viewed, such as a tape recording or film; and a printed form of digital evidence, such as emails or spreadsheets.

Normally, before documentary evidence is admissible as evidence, it must be proved by other evidence from a witness that the document is genuine, called "laying a foundation".

Dysthanasia

In medicine, dysthanasia means "bad death" and is considered a common fault of modern medicine.Dysthanasia occurs when a person who is dying has their biological life extended through technological means without regard to the person's quality of life. Technologies such as an implantable cardioverter defibrillator, artificial ventilation, ventricular assist devices, and extracorporeal membrane oxygenation can extend the dying process.

Dysthanasia is a term generally used when a person is seen to be kept alive artificially in a condition where, otherwise, they cannot survive; sometimes for some sort of ulterior motive. The term was used frequently in the investigation into the death of Formula One driver Ayrton Senna in 1994.

Exculpatory evidence

Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt. It is the opposite of inculpatory evidence, which tends to present guilt.

In many countries, including the United States, police and prosecutors are required to disclose to the defendant exculpatory evidence they possess before the defendant enters a plea (guilty or not guilty).Per the Brady v. Maryland decision, prosecutors have a duty to disclose exculpatory evidence even if not requested to do so. While the prosecution is not required to search for exculpatory evidence and must disclose only the evidence in its possession, custody, or control, the prosecution's duty is to disclose all information known to any member of its team, e.g., police, investigators, crime labs, et cetera. In Brady v. Maryland, the U.S. Supreme Court held that such a requirement follows from constitutional due process and is consistent with the prosecutor's duty to seek justice.

Foundation (evidence)

In law, a foundation is sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in the form of exhibits or testimony of witnesses. Material evidence is important evidence that may serve to determine the outcome of a case. Exhibits include real evidence, illustrative evidence, demonstrative evidence, and documentary evidence. The type of preliminary evidence necessary to lay the proper foundation depends on the form and type of material evidence offered.

The lack of foundation is a valid objection that an adverse party may raise during trial.

Lazarus sign

The Lazarus sign or Lazarus reflex is a reflex movement in brain-dead or brainstem failure patients, which causes them to briefly raise their arms and drop them crossed on their chests (in a position similar to some Egyptian mummies). The phenomenon is named after the Biblical figure Lazarus of Bethany, whom Jesus raised from the dead in the Gospel of John.

Materiality (law)

Materiality is the significance of facts to the matter at hand.

Megadeath

Megadeath (or megacorpse) is one million human deaths, usually caused by a nuclear explosion. The term was used by scientists and thinkers who strategized likely outcomes of all-out nuclear warfare.

Pallor mortis

Pallor mortis (Latin: pallor "paleness", mortis "of death"), the first stage of death, is an after-death paleness that occurs in those with light/white skin.

Real evidence

Physical evidence (also called real evidence or material evidence) is any material object that plays some role in the matter that gave rise to the litigation, introduced as evidence in a judicial proceeding (such as a trial) to prove a fact in issue based on the object's physical characteristics.

Recorded recollection

A recorded recollection (sometimes referred to as a prior recollection recorded), in the law of evidence, is an exception to the hearsay rule which allows witnesses to testify to the accuracy of a recording or documentation of their own out-of-court statement based on their recollection of the circumstances under which the statement was recorded or documented - even though the witness does not remember the events attested to in the statement. It is sufficient that the witness is able to testify to having made the recording, and to having written an accurate statement at that time.

Under the Federal Rules of Evidence, § 803 (5), a recorded recollection is defined as follows.

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.The rule is followed by most U.S. states as laid out in the Federal Rules of Evidence; the evidence thus presented may be read into the record, but the actual recording or document may not be given to the jury, except under very narrow circumstances.

Redirect examination

When a witness is presented for testimony in the U.S. judicial system, the order is "direct examination" testimony, then the opposing attorney does "cross examination" and then comes "redirect examination" from the attorney first offering the witness. "Recross" may be allowed, but usually the opposing attorney must ask for permission from the judge before proceeding with this additional round of questioning.

In Australia, Canada and South Africa the process is called re-examination.

Turn state's evidence

A criminal turns state's evidence by admitting guilt and testifying as a witness for the state against his associate(s) or accomplice(s), often in exchange for leniency in sentencing or immunity from prosecution. The testimony of a witness who testifies against co-conspirator(s) may be important evidence.

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