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What is a Dying Declaration?

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  • Written By: Tricia Ellis-Christensen
  • Edited By: O. Wallace
  • Last Modified Date: 25 November 2016
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A dying declaration is a type of legal testimony delivered when people think they are dying. It is unusual because while many conversations overheard, called hearsay, are not admissible in court, sometimes the dying declaration is allowed to be part of testimony. The degree and circumstances which these declarations are allowed very much depends on the particular court. Oftentimes such declarations only get admitted if they have to do with a murder or homicide and even then, degree of admissibility might depend on type of trial like civil, as opposed to, criminal trial.

There can be different rules in place for when a dying declaration is considered good. If a person doesn’t actually die, but only thinks he was going to, what is said at the time may not be admissible by either prosecutor or defense. For example, if a person admits culpability to a crime with other people like friends in the room, this doesn’t count as a dying declaration and a prosecutor might not be able to use it in court. Another way this declaration can get thrown out is if the person doesn’t die and is actually around at the time a trial takes place; instead his or her testimony at trial would be used.

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Often the dying declaration must be about a murder having taken place in a way the person dying can only know. This requirement best fits when the person declaring is the victim of a homicide, who is dying presently from the murderer’s actions. A person who has just been shot by someone else could accuse him, and this may be evidence, but the person must know the murderer’s identity. A declaration won’t be admitted if someone was simply speculating about who might have been the murderer.

Another way in which a dying declaration can’t be admitted is when a dying person accuses someone of the murder of someone else. There may be exceptions to this if the dying person also took part in the murder and is providing evidence. Usually such testimony can’t be admitted because the person accused has no chance to rebut or question the testimony.

In general, the biggest problem with a dying declaration is there is no opportunity to cross-examine. The witness, having died, is clearly unavailable, and his or her degree of credibility cannot be called into question. This goes against the general rules for witness testimony and protections built into the system for those accused of a crime. On the other hand, these declarations sometimes make good sense, particularly when they are very clear, such as an accounting of a murderer’s actions before his or her victim expires.

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Vincenzo
Post 2

@Terrificli -- I disagree. Let's use the example where they dying declaration is made by a man who was shot. That guy is the only witness to the crime. If the guy dies, should the murderer be allowed to get way with a felony when a dying declaration exists that could prevent him from escaping justice?

Of course not.

The reason the dying declaration exists is because of the assumption that people who are dying will be truthful. That notion has been proven right much more than it has been proven wrong.

Terrificli
Post 1

I have always hated this hearsay exception for the reasons mentioned in the last paragraph. One of the hallmarks of a trial is that the defendant is given the opportunity to cross examine witnesses that testify against their interests (the plaintiff can do the same thing, but let's keep this simple).

How can that rule be observed in the case of a dying declaration? The exception is unfair, particularly because the dying declaration might be made by someone who was a notorious liar.

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