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Evidence
Part of the common law series
Types of evidence
Testimony · Documentary evidence
Physical evidence · Digital evidence
Exculpatory evidence · Scientific evidence
Demonstrative evidence · Real evidence
Eyewitness identification · DNA · Lies
Relevance
Burden of proof · Laying a foundation
Subsequent remedial measure
Character evidence · Habit evidence
Similar fact evidence
Authentication
Chain of custody
Judicial notice · Best evidence rule
Self-authenticating document
Ancient document
Witnesses
Competence · Privilege
Direct examination · Cross-examination
Impeachment · Recorded recollection
Expert witness · Dead man statute
Hearsay (and its exceptions)
Hearsay: in U.K. law · in U.S. law
Confessions
Excited utterance · Dying declaration
Party admission · Ancient document
Declarations against interest
Present sense impression · Res gestae
Learned treatise  · Implied assertion
Other areas of the common law
Contract law · Tort law · Property law
Wills and Trusts · Criminal law

In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person.

Under the Federal Rules of Evidence, a dying declaration is admissible if:

1. it constituted the last words of a person who was dying or thought he was dying, and
2. that person was aware or believed that he or she was dying, and
3. that person made a statement, based on their actual knowledge, that relates in some way to the cause or circumstances of his or her death.

For example, suppose Rachel stabs Ross and then runs away, and a police officer happens upon Ross as he lies in the gutter, bleeding to death. If Ross manages to sputter out with his last words, "I'm dying - Rachel stabbed me" (or even just "Rachel did it"), the officer can testify to that in court.

The declarant does not actually have to die for the statement to be admissible, but they need to have had a genuine belief that they were going to die, and they must be unavailable to testify in court. In the above scenario, if Ross were to recover instead of dying, and were able to testify in court, the officer would no longer be able to testify to the statement. It would then constitute hearsay, and not fall into the exception. Furthermore, the statement must relate to the circumstances or the cause of the declarant's own death. If Ross' last words are "Rachel killed Monica", that statement will not fall within the exception, and will be inadmissible (unless Rachel killed Ross and Monica in the same act).

Furthermore, as with all testimony, the dying declaration will be inadmissible unless it is based on the declarant's actual knowledge. Suppose, for example, Ross bought a cup of coffee at the airport, and was stricken with food poisoning. If his dying last words were that "the people who sold them the coffee mix must have used a defective packing machine", that statement would be inadmissible despite the hearsay exception because Ross had no way of knowing anything about the conditions in which the coffee was packed.

In U.S. federal courts, the dying declaration exception is limited to civil cases and homicide prosecutions. It cannot be used in any other kind of criminal proceeding. Although many U.S. States 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. 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.

Reproduced with the author's permission.

A dying declaration is a statement, verbal or written, made by a person since deceased, relating to the cause of his or her death or any of the transaction resulting in death. S.32 (1)* Of the Indian Evidence Act (A subset of the British Act) describes statements made by persons who cannot be called as witnesses to prove the same.

The reason this kind of evidence has been admitted as put by Lord Baron Eyre is that “ they are declarations made in extremity, when the party is at the point of death, and when every [hope] of the world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath in the court of justice.” **

References

* S.32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant—statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:--

(1) When it relates to cause of Death—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction, which resulted in his death, in cases in which the cause of that persons death comes into the question. Such statements are relevant whether the person who made them was or not, at the time when they were made, under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into the question.

** R v. Woodstock, (1789) 1 Leach. 504 (Eyre, C.B.)

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DYING DECLARATION MADE IN A STATE OF SHOCK

shock n.(i)

1. A violent collision or [impact]; heavy blow.

2. Pathology: A generally temporary state of massive physiological reaction to bodily trauma, usually characterized by marked loss of blood pressure and the depression of vital processes.

As Modi’s medical Jurisprudence and Toxicology(ii) describes “Shock” as a result of considerable loss of blood or obstruction to respiration or circulation, lack of oxygen develops, which also causes endothelial damage and increased capillary permeability resulting in changes in fluid balance. Shock usually appears immediately after receiving the injuries, but it may supervene after some time, if the individual at the time of receiving injuries was in a state of great excitement and [mental] preoccupation. Shock may be produced from exhaustion resulting from several injuries combined though each one of them separately may be very slight.

After receiving mortal injuries involving a vital organ, a very guarded reply is required to be given by a medical witness to state whether a person is capable of speaking, walking or performing any other volitional act which would involve a bodily or mental power for some time after receiving the fatal injury. Injuries cause variable reactions in individuals, also some cases have been recorded where some acts requiring some exertion have been recorded, where the victims have survived some hours after receiving some grave injuries, which ordinarily would be rapidly fatal.

In the case of K.E v. Kalla Khan(iii) , a male was stabbed in the stomach with a knife and was able to walk two furlongs (402 m) to a police station to make a police report and he was also able to make a dying declaration in a complete mental state before dying.

The statement made by the deceased must be straightforward, rational, consistent and absolutely coherent and it should also have a ring of truth to it. A dying declaration is admissible if it is made in full possession of senses. If the certificate given by the doctor mentions that the patient became semi-conscious, this however is not a conclusive proof that the deceased became confused or there was any wandering or want of clearness in the mind. Wounds may cause depressions of the vital functions as a result of shock due to trauma with visible injury. Primary or neurogenic shock may cause short of breath and solar plexus (reaction caused by a blow on the pit of the stomach), which in turn may lead to a semi conscious stage, which is an indication of weakness and not mental impairment.(iv)

More so if the certificate given by the doctor mentions that the patient became semi-unconscious towards the end of the [dying declaration] that clearly shows that the deceased was fully conscious when he started making the dying declaration before the doctor.

References

(i) The American Heritage Dictionary of the English Language - New College Edition

(ii) N.J.Modi, Modi’s textbook of Medical Jurisprdence and Toxicology, 244, (M.Tripathi (P) Ltd., Mumbai, 1977)

(iii) (All.), High Court Criminal Appeal No. 757 of 1923

(iv) Refer to note (ii) on p.245

In the movie The Fugitive, Harrison Ford's character's wife calls out his name, leading to his false conviction.