In the law

Law

Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

 of evidence

Evidence (law)

The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...

, the dying declaration is testimony

Testimony

In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...

 that would normally barred as hearsay

Hearsay

Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...

 but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person.

History

In medieval English courts, the principle originated of Nemo moriturus praesumitur mentiri — a dying person is not presumed to lie. An incident in which a dying declaration was admitted as evidence has been found in a 1202 case.

In the United States

Under the Federal Rules of Evidence

Federal Rules of Evidence

The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....

, a dying declaration is admissible if the proponent of the statement can establish:

1. Unavailability of the declarant -- this can be established using FRE 804(a)(1)-(5);
2. The declarant’s statement is being offered in a criminal prosecution for murder, or in a civil action;
3. The declarant’s statement was made while under the belief that his death was imminent; and
4. The declarant’s statement must relate to the cause or circumstances of what he believed to be his impending death.

The declarant does not actually have to die for the statement to be admissible, but there must be a genuine belief that death was imminent and the declarant must be unavailable to testify in court. If the stipulations cannot be met, it would then constitute hearsay and not fall into the exception. As with all testimony, the dying declaration will be inadmissible unless it is based on the declarant's actual knowledge.

Furthermore, the statement must relate to the circumstances or the cause of the declarant's own death. A counterexample is the dying declaration of Clifton Chambers in 1988, in which Chambers confessed that ten years earlier, he had helped his son bury a man named Russell Bean, whom the son had killed by accident. The statement was sufficient cause to justify a warrant

Search warrant

A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....

 for a search on the son's property; Bean's body was indeed found, but there was no physical evidence of a crime after ten years, and since Chambers was not the victim, his dying declaration was not admissible as evidence, and the son was never brought to trial.

In U.S. federal courts, the dying declaration exception is limited to civil cases and criminal homicide prosecutions. Although many U.S. state

U.S. state

A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

s copy the Federal Rules of Evidence in their statutes, some permit the admission of dying declarations in all cases.

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

Boston Massacre

The Boston Massacre, called the Boston Riot by the British, was an incident on March 5, 1770, in which British Army soldiers killed five civilian men. British troops had been stationed in Boston, capital of the Province of Massachusetts Bay, since 1768 in order to protect and support...

. One of the victims, Patrick Carr

Patrick Carr

Patrick Francis Carr was an early Irish immigrant to the United States as well as the fifth and final victim of the Boston Massacre. He was buried on March 17, 1770, two weeks after the aforementioned event occurred, in the Granary Burying Ground, one of Boston's oldest burial grounds. Carr's...

, told his doctor before he died that the soldiers had been provoked. The doctor's testimony helped defense attorney John Adams

John Adams

John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...

 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

Crawford v. Washington

Crawford v. Washington, 541 U.S. 36 , is a United States Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment...

(2004) is unclear (Crawford was decided under the constitution's Confrontation Clause

Confrontation Clause

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are...

, not the common law). Opinions such as Giles v. California

Giles v. California

Giles v. California, 554 U.S. 353 , was a case decided by the Supreme Court of the United States that held that for testimonial statements to be admissible under the forfeiture exception to hearsay, the defendant must have intended to make the witness unavailable for trial.-Factual background:The...

(2008) discuss the matter (although the statements in Giles were not a dying declaration), but Justice Ginsberg notes in her dissent to Michigan v. Bryant

Michigan v. Bryant

Michigan v. Bryant, 131 S. Ct. 1143 , is a case decided by the United States Supreme Court on February 28, 2011. The case concerns a criminal defendant's Confrontation Clause right regarding statements made by a deceased declarant....

(2011) that the court has not addressed whether the dying declaration exception is valid after the confrontation clause cases.

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.