Dying Declaration Hearsay Exception

A dying declaration is a statement that is made by an individual who is at the point of death but who is conscious. The dying individual’s statement makes some connection between the individual who may have harmed them and the injuries they suffered.

For example, a dying declaration may be evidence if the dying victim told someone, such as law enforcement, who stabbed them. This exception is an exception to the hearsay rule.

What Is Hearsay?

Hearsay is information that was gathered by one individual from another individual who had first hand knowledge of that information. The information may involve an object, condition, or event of which the individual who gathered the information did not have any first hand knowledge.

In other words, the individual who got the information did not have any personal or direct experience with the item or issue and would not be able to testify in court about it. Second hand information is typically not admissible in court unless it falls under a specific legal exception.

When Is Hearsay Evidence Admissible?

In general, hearsay evidence is not considered admissible in criminal court cases because it is evidence that is heard second-hand, and, therefore, is considered less reliable. There are, however, exceptions to the rule that prohibit hearsay evidence from being admitted.

These exceptions allow for certain types of hearsay, or second hand testimony, to be admitted into evidence in a criminal trial. The specific hearsay exceptions that are available may vary by jurisdiction, but typically include:

• A statement that was made under stress, which is also referred to as an excited utterance;
• A statement made present sense impressions;
• A statement made to obtain medical treatment;
• Public and business records;
• Any admission of liability or guilt;
• Prior statements made that are inconsistent; and
• Dying declarations.

Can Anyone’s Dying Declaration Be Used in Any Criminal Trial?

No, not any individual’s dying declaration may be used in any criminal trial. This is a very narrow exception.

This means the statement has to meet several requirements before it will be admitted into court, including:

• The victim must have made the statement;
• The victim must make the statement at the time that they believe death is imminent;
• The victim must be at least unavailable by the time the evidence is offered at trial, although some states require the victim to be dead by the time of the trial;
• The statement can only be introduced in a homicide case;
• The statement must focus on the circumstances of the victim’s death; and
• The statement must have named the defendant or must be used against the defendant.

What Is a Homicide?

Homicide is the killing of one human being by another human being. This offense includes both intentional deaths, such as murder, and unintentional deaths, such as manslaughter.

Is an Admission of Guilt or Liability an Exception?

Yes, admission of guilt or liability is an exception to the hearsay rule. If a defendant admits guilt, it may be included at trial, even if it is hearsay.

This is due to the fact that it can be assumed that an individual would not admit to being guilty unless they actually were.

Is a Dying Declaration Considered Expert Eyewitness Testimony?

No, a dying declaration is not considered eyewitness testimony. An expert witness is an individual who is qualified to speak regarding specific circumstances or ideas, for example, accident reconstruction or medical issues.

An individual who makes a dying declaration is not an expert, although they are most likely the best individual to have information regarding their own death.

Can Hearsay Evidence Be Admitted through Another Person’s Testimony?

Yes, in certain circumstances, hearsay evidence may be admitted through another individual’s testimony. Even if the individual who has first hand knowledge can testify, second hand evidence may be admitted under certain specific circumstances, including:

• Statements Made to Get Medical Treatment: The assumption that makes this statement admissible is that individuals will tell the truth about their symptoms to obtain proper medical treatment;
• Statements Said under Stress: This type of statement is also referred to as an excited utterance. The statement made under stress is viewed as admissible if it was offered by an individual who heard the words spoken;
• Present Sense Hearsay: This is a statement made about what an individual experienced in a particular moment; and
• Public Records: Records that are made in the course of business are admissible. For example, a police report is not admissible in a criminal trial, but is allowed in a civil trial to prove a defendant’s liability.

What If the Statement Was Spoken by Someone Who Is Not Available to Testify?

Whether or not a statement that was made by an individual who cannot testify will be admissible will depend on the statement. Hearsay may be admissible when an individual is not available to testify if:

• The statement was a dying declaration;
• The statement was a declaration against the speaker’s own interest;
• The person was intimidated by the defendant into not testifying; or
• The statement was prior testimony.

What Evidence Is Admissible in Court?

In order for evidence to be admissible in court, it must be:

• Relevant;
• Material; and
• Competent.

Relevant evidence is evidence that has a reasonable tendency to prove a fact or or disprove a fact. It does not mean that the evidence proves a fact conclusively but, instead, makes the fact more or less probable than it would be without the introduction of that evidence.

Even when evidence is deemed relevant, it must be legally relevant. This means that the probative value of the evidence has to substantially outweigh:

• Any danger of unfair prejudice;
• Confusion of the jury;
• Waste of time; and
• The possibility of misleading the jury.

What Evidence Is Not Admissible in Court?

Although numerous different types of evidence may be admissible during a trial, there are rules that prohibit specific types of evidence from being admitted. One of the main rules is the hearsay evidence rule.

These rules are stronger in criminal cases because of the constitutional guarantees of specific rights to every defendant. Most of the rules, however, also have exceptions.

It is important to be aware that these rules may also vary by state. Because of this, it is important to consult with an attorney prior to going to court.

Examples of evidence that cannot be used against a criminal defendant include:

• Out of court testimony: Pursuant to the Sixth Amendment to the United States Constitution, a criminal defendant has the right to confront their accuser;
• Character evidence: Prosecutors are not permitted to use evidence of a defendant’s personality to prove that the defendant committed the crime unless the defendant raises the issue first;
• Plea bargaining: Statements that are made during plea bargain negotiations cannot be used against a defendant during a trial; and
• Self-incrimination: Pursuant to the Fifth Amendment to the United States Constitution, a defendant has the right not to take the stand during trial because the prosecutor’s cross-examination may lead the defendant to incriminate themselves.

Should I Contact an Attorney about a Dying Declaration in My Case?

If you have any questions about a dying declaration in your case, it is important to consult with a criminal lawyer. Dying declarations are often considered to be strong evidence, especially when they identify a defendant as the perpetrator of a criminal offense.

You should consult with your attorney to learn more about how a dying declaration may affect your case as well as what defenses may be used against the statement.