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E,. DENcE--DYING DECLARATIONS-APPEAL AND ERROR-S.

was convicted of
murdering his wife by poisoning her with bichloride of mercury. Defendant appealed to
the United States Circuit Court of Appeals, contending that a statement of Mrs. S. to her
nurse had been erroneously admitted in evidence as a dying declaration. The statement
was, "Dr. Shepard has poisoned me." It was made two days after Mrs. S.'s illness had
begun, at a time when she was greatly improved and was not thought by her physicians
to be dangerously ill. At the trial, the declaration was offered and received as a dying
declaration. The defense had advanced the theory of suicide, and produced evidence
that indicated a suicidal intent on the part of Mrs. S. The United States Circuit Court of
Appeals held that the statement was not admissible as a dying declaration, but was
admissible for the purpose of rebutting the evidence of suicidal intent, and affirmed the
conviction. Defendant brought certiorari to the Supreme Court of the United States.
Held, judgment reversed. Testimony admitted at the trial for an illegitimate purpose
cannot be considered in the appellate court as if admitted for a different purpose
unavowed and unsus-

RECENT CASE NOTES pected, where the purpose in reserve would be unlikely to
occur to uninstructed jurors.' The holding that the declaration was not admissible as a
dying declaration, since the declarant, at the time of making it, was not shown to have
spoken without hope of recovery and in the shadow of impending death, is in accord
with the Indiana rule on dying declarations. 2 The great weight of authority in other
states also holds that a dying declaration is not admissible as such unless it be shown
that declarant was conscious of approaching death and had no hope of recovery. 3 The
unique feature of the principal case is its decision that evidence admitted for an express
purpose cannot be considered on appeal as if admitted for another purpose, even
though no instruction limiting its effect was asked for at the trial. It is generally held that
the trial court is not required to give instructions as to particular points, in a criminal
case, where no request therefor is made.4 In Indiana and a majority of the other states,
where evidence is admitted in a prosecution against two persons jointly, but is
admissible against only one of them, the other cannot complain that the court did not
limit the application of the evidence, where no such instruction was requested. 5
However, none of the cases establishing this rule presented the question of evidence
offered and received for an express purpose. Justice Cardozo, in the principal case,
conceded that if the purpose of the evidence had been left at large, the rule of the cases
cited above might apply, and defendant, not having asked for an explanatory instruction,
might not be allowed to complain on appeal as to the purpose for which it was used. But
where the testimony was offered for an illegitimate purpose, the court held that the trial
would become unfair if testimony thus accepted could be used in the appellate court as
if admitted for a different purpose, unavowed and unsuspected. In support of this
reasoning, the court cited a recent decision of the New York Court of Appeals, People v.
Zackowitz. 6 There it was held that where the state was erroneously allowed to
introduce evidence tending to show murderous propensities on the part of defendant,
the fact that defendant later took the stand, so that this same evidence would be
competent to impeach his credibility, did not cure the error of admitting it.7 The writer
was able to find only one other case propounding the doctrine of the principal case. In
that case, the state moved to strike out IShepard v. United States (Kan.) (1933), 54 Sup.
Ct. 22. 2Williams v. State (1907), 168 Ind. 87, 79 N. E. 1079; Watson v. State (1878), 63
Ind. 548; Morgan v. State (1869), 31 Ind. 193. 'Brennan v. People (1906), 37 Colo. 256,
86 P. 79; Fuqua v. Commonwealth (1903), 73 S. W. 782; Collins v. People (1902), 194
Ill. 506, 62 N. E. 902; Gardner v. State (1908), 55 Fla. 25, 45 So. 1028; People v. Brecht
(1907), 105 N. Y. S. 436, 120 App. Div. 769. 'Paulson v. State (1903), 118 Wis. 89, 94 N.
W. 771; People v. Willett (1895), 105 Mich. 110, 62 N. W. 1115; Mead v. State (1891), 53
N. J. Law 601, 23 A. 264; Zell v. Commonwealth (1880), 94 Pa. St. 258; Commonwealth
v. Selesnick (1930), 272 Mass. 354, 172 N. E. 343. 'Thompson v. State (1920), 189 Ind.
192, 125 N. E. 641; State v. Romeo (1912), 42 Utah 46, 128 P. 530; State v. Shout
(1915), 263 Mo. 360, 172 S. W. 607; Lytle v. United States, 5 Fed. (2nd) 622. a254 N. Y.
192, 172 N. E. 466. 7People v. Zackowitz (1930), 254 N. Y. 192, 172 N. E. 466.

certain evidence. Before granting the motion the court inquired of defendant's counsel
as to the purpose of the evidence. It was not admissible for the purpose named by
counsel, and was stricken out. On appeal, defendant's contention that the evidence was
offered for a different purpose was not allowed.8 In the instant case, the court went on
to say that aside from the fatal objection outlined above, this particular declaration
would not have been admissible as evidence of deceased's state of mind, even though
it had been so limited at the trial. This declaration was an accusation of defendant. It
was hearsay evidence of defendant's guilt. As Justice Cardozo put it, "Other tendency, if
it had any, was a filament too fine to be disentangled by a jury." The rule of the principal
case seems to be a reasonable restriction of the doctrine that it is never error for the
court to fail to limit the evidence to its legitimate purposes, where an instruction to this
effect is not asked. S. F. S. PERSONS-HusBAND AND WI--WiFE's RIGHT TO
EARNmNGs--Appellant, the administrator of the estate of Lydia Offenbacker,
prosecuted this appeal from a judgment in favor of appellee, who is the wife of Lydia
Offenbacker's son. For nineteen years prior to her death Mrs. Offenbacker, an invalid,
lived in the home of her son and appellee and was cared for by them. For about five
years of this period she was confined to her bed by illness so that she required the
exacting and constant attention of her son or appellee. Mrs. Offenbacker frequently told
appellee and her husband that she expected to compensate them for their services, and
after her death, both filed claims against the estate, which were allowed. Appellant
contends that such services as were rendered by appellee belong to her husband, and
that when his claim was allowed it necessarily included any sum earned by appellee.
Held, that such earnings were the separate property of the wife.1 The apparent conflict
of Indiana cases arising under the statute which provides that "the earnings and profits
of any married woman, accruing from her trade, business, services or labor, other than
labor for her husband or family, shall be her sole and separate property" 2 is due to the
failure of the court to analyze the fact situation of each individual case. It has repeatedly
been held in this state that services of the wife, unless performed in her separate
business, 3 or for third persons,4 belong to her husband as at common law.S It is also
settled that the husband may give 'Lindsay v. State (1898), 39 Tex. Cr. P. 468, 46 S. W.
1045. 1 Offenbacker v. Offenbacker (1933), 187 N. E. 903 (Ind.). 2 Section 8740, Burns'
Ann. St. 1926. 3Wilson v. Wilson (1887), 113 Ind. 415, 15 N. E. 513; Boots v. Griffith
(1883). 89 Ind. 246; Wetzel v. Kellar (1894), 12 Ind. App. 75, 39 N. B. 895. A Kennedy v.
Swisher (1905), 34 Ind. App. 676, 73 N. E. 724; Elliott v. Atkinson (1910), 45 Ind. App.
290, 90 N. E. 779; Kedey v. Petty (1899), 153 Ind. 179, 54 N. E. 798; Arnold v.
Buchanan (1915), 60 Ind. App. 626, 111 N. E. 204; City of Jacksonville v. Griggs (1924),
82 Ind. App. 104, 144 N. B. 560. 5Baxter v. Pricket's Administrator (1867), 27 Ind. 490;
Jenkins v. linn (1871), 37 Ind. 349; Yopst v. Yopst (1875), 51 Ind. 61; Knppenberg v.
Morris (1881), 80 Ind. 540; Board of Commissioners of Tipton County v. Brown (1891),
The Trouble with Dying
Declaration Affidavits in
Asbestos Litigation: a Case
Study
In asbestos litigation, often times a plaintiffs sole evidence of product
identification takes the form of an affidavit created shortly before the
claimant passes away. Typically called a dying-declaration affidavit,
the document preserves the plaintiffs written testimony for trial,
thereby preserving his cause of action against the individuals and
entities he believes were responsible for causing his illness.

Such affidavits are problematic for defendants for a variety of reasons,


principally because the affidavits are frequently created in the short
window between a litigants diagnosis and his death, which may pre-
date the filing of suit. Under these circumstances, there is patent
prejudice inflicted on defendants whose products are identified in the
affidavits. The defendants are denied the right to place the written
identification testimony through the crucible of cross-examination, a
fundamental right that is generally afforded to defendants in all
litigation.

The prejudice inflicted on the decedent-plaintiff, however, is equally


patent, if the affidavits are excluded from evidence. The plaintiff may
be the only source of product identification evidence available to his
estate, and to deny the admission of a dying declaration affidavit may
deny the plaintiff a viable cause of action.

Courts facing the dilemma posed by a dying declaration


affidavit recognize the competing rights and interests of the
litigants, and often look to the circumstances under which the
document was created. A recent decision in the Rhode Island
Superior Court, Pisano v. Alfa Laval, Inc., C.A. No. PC-13-5868
(November 2, 2016) (Gibney, J.), weighed the competing interests
with the language of the operative rule of evidence, and came down on
the side of the plaintiff, admitting three affidavits executed less than
two months prior to the plaintiffs death, and before he could be
deposed, for the purposes of defeating a defendants summary
judgment motion.
In Pisano, a defendant moved for summary judgment asserting,
among other things, insufficient product identification, where the
evidence was limited to the plaintiffs three affidavits. The plaintiff had
been diagnosed with mesothelioma on September 27, 2013, and
executed the three affidavits in two separate bunches, one on October
25, 2013, and the other two on November 1, 2013. The plaintiff
passed away on December 16, 2013, one month after suit had been
filed, and before he could be deposed by the defendants. In the first
October 25, 2013 affidavit, the plaintiff stated that he cut and installed
asbestos-containing flooring tiles with his neighbor in the basement of
his home in 1964; he described the tiles as being 10 x 10 and
speckled black and white. In the second affidavit, executed November
1, 2013, the plaintiff reiterated the events in the first affidavit, and
further stated that the tiles were in fact 9 x 9, black and white in
color, and of the type he had circled in defendants catalog, which was
attached as an exhibit to the affidavit. In the third affidavit, dated
November 1, 2013, the plaintiff stated that he installed ceiling tiles in
his home sold by the defendant, and again attached a section of the
defendants catalog in which he circled the alleged product. Both the
floor and ceiling tiles purportedly contained asbestos, to which the
plaintiff was exposed.
The defendant challenged the admissibility of the affidavits for the
purposes of product identification, arguing, in part, that the affidavits
did not satisfy the dying declaration exception to the rule against
hearsay because they were executed more than a month before the
plaintiff passed away and therefore were not made under the belief of
impending death. The trial court, Gibney, J., disagreed. Recognizing
that in order to be relied on at the summary judgment stage, affidavits
must contain information that would be deemed admissible at trial, the
court turned to Rhode Island Rules of Evidence 804(b) [1] to analyze
the affidavits.
Under Rule 804(b), an unavailable declarants statements are
admissible if made under belief of impending death, and relate to the
declarants perceived cause or circumstances of his death. The
declarants state of mind can be proven by direct or circumstantial
evidence, including through statements made to the declarant about
his medical condition. The dying declaration exception to hearsay is
justified by the belief that the declarants impending death likely
removes any motivation to make false claims. In analyzing
the Pisano affidavits, the court noted that, under existing case law, no
time limit applies to terminal illness cases when defining the phrase
impending death under 804. In fact, the court referred to a previous
decision in which it considered the fact that statements made by a
declarant after being told that his condition was incurable and
inoperable constituted a dying declaration for purposes of the rule.
The Pisano plaintiff represented, in his second affidavit, that he
provided his statements with the understanding that [he] may not be
well enough to survive through the time of a deposition or trial. The
court was therefore satisfied that the plaintiff sufficiently established
his belief of impending death through his express statements, and
deemed the affidavits admissible for product identification purposes
under Rule 804.
Pisano follows the universal policy courts favor throughout the nation
of resolving issues, evidentiary or otherwise, in a manner that permits
the plaintiff a decision on the merits of his case. Defendants must be
vigilant in exploring not only the content of dying declaration
affidavits, but the circumstances of their creation in order to posture
for their exclusion from evidence both at the summary judgment stage
and at trial.
[1] Rule 804 of the Rhode Island Rules of Evidence is functionally
identical to Rule 804 of the Federal Rules of Evidence; both address
the dying declaration exception to the rule against hearsay, among
others.

SOME FACTORS AFFECTING THE


ADMISSIBILITY OF DYING DECLARATIONS
mate objection can be taken to a measure which only places Cook County on a parity
with other counties having one eight-hundredth its population.89 Conclusion This brief
summary of the proposed statutes should indicate that all are necessary in order to
improve the administration of criminal justice in Illinois. Indeed, they are but a step
toward the complete revision or recodification of the criminal laws of Illinois, a desirable
but presently impractical goal. As has been noted above, all of these bills, in somewhat
different form, were introduced in the 1947 session of the legislature, but none reached
a final vote in both houses. It is to be hoped that the legislature will give more serious
attention to these bills when they are introduced in the 1949 session. The changes
which have been made in the bills since their original form in 1947 are mostly for the
better, -and should improve their chances for approval. WARREN P. HILL DANIEL
WALKER Some Factors Affecting the Admissibility of Dying Declarations Dying
declarations have long been recognized as an exception to the hearsay rule. There are
two chief reasons for allowing this exception: first, it is the only evidence available from
the deceased, who is often the best and sometimes the only eye witness to the
occurrence; secondly, it is thought that one who believes himself about to die has lost all
motive for falsehood and will tell the truth "lest he be punished in the Hereafter."' The
effect of the final words of the deceased as to his assailant is so persuasive to the
ordinary juror that courts have adopted numerous safeguards and rigid rules of
admissibility for the dying declaration. Unfortunately these rules have had the effect of
excluding many trustworthy declarations from the jury. It is very important therefore that
certain safeguards be taken when receiving a dying declaration. The first and most
stringent requirement of the courts when deciding the admissibility of dying declarations
is a showing that the declarant believed himself beyond recovery and that death was
inevitable. The strictness of this rule was illustrated in People v. Maria.2 A statement in
that case was dictated by police officers and signed by the declarant. Although it recited
that the declarant believed he was about to die and that he had no hope of recovery,
there was no evidence that a physician told him so. He asked for a physician prior to the
statement but did not request a priest until about an hour after the statement was made.
The Illinois Supreme Court held that the dying declaration should not have been
admitted, since there was not an adequate showing that the vened simultaneously only
in a district which has a city or borough of at least 300,000 inhabitants, and three grand
juries only in the Southern District of New York). This provision was superseded by the
Federal Rules of Criminal Procedure. 89 Cook, population 4,063,342; Putnam (whose
grand jury has a permissible life of six months), population 5,289. Figures from 16th
census of United States (1940). 1 People v. Borella, 312 Ill. 34, 143 N.E. 471 (1924);
State v. Debnam, 222 N.C. 266, 22 S.E. (2d) 562 (1942); State v. Jordan, 216 N.C. 356,
5 S.E. (2d) 156 (1940). 2 359 Ill. 231, 194 N.E. 510 (1935).

declarant had lost hope of recovery. The fact that others around the wounded man did
not believe he could survive was irrelevant. In contrast to this situation, if the declarant
has given up all hope of recovery, the fact that he actually does live for considerable
time after the statement is made will not invalidate an otherwise admissible statement,3
although the length of time between the statement and death is often used as further
evidence of the declarant's expectation of death.4 In a prosecution for murder by
abortion in People v. Kreutzer5 the declaration was admitted where the decedent stated
that it was "what may be my last declaration in life" and witnesses testified to her fixed
conviction that death was inevitable, even though she did not believe death was
immediate and where she in fact lived some time thereafter. The rule that the declarant
must believe that death is impending or that he cannot recover is the one requisite
almost universally accepted by courts and text-book writers. 6 There is, however, some
divergence of opinion as to what proof of this belief is necessary.7 An oral declaration to
the effect that all hope of recovery is gone will usually suffice.8 A doctor's statement to
the declarant that he will die is strong evidence. A decedent's request for the last rites of
his church is also a strong indication not only that he expects to die but also that he is in
a solemn religious state of mind. The nature of the injury itself is important if the
declarant knows of it and its usual effect. It is probable that some courts stress too
strongly the significance of requesting a physician, for often a dying man may ask for a
doctor without necessarily changing his belief that death is imminent. The rule which
probably causes the greatest amount of confusion in determining the admissibility of
dying declarations is the one excluding opinion evidence. According to this rule the
statement of the declarant is treated like the testimony of a witness on the stand in
determining admissibility. If an inference can be drawn from the facts stated, the jury
can just as well draw this inference, and the conclusion of the declarant is superfluous
and inadmissible. If a conclusion is stated which is not inferrable from the facts or the
facts on which it is presumably based are not stated, then it is incompetent. Thus under
a strict interpretation of this rule, no conclusion or opinion is admissible. Professor
Wigmore advocates abolishing this opinion rule restriction altogether.9 Since the
declarant is dead, no further facts can be obtained from him, and his testimony is not
superfluous but indispensable. Most courts do apply the opinion rule to dying
declarations, but their degree of application differs widely
.10 3 People v. Denton, 312 Mich. 32, 19 N.W. (2d) 476 (1945) (11 days); People v.
Kreutzer, 354 Ill. 430, 188 N.E. 422 (1933) (9 days) ; People v. Corder, 306 fli. 264, 137
N.E. 845 (1922) (4 days). 4 Cotney v. State, 32 Ala. App. 46, 26 So. (2d) 598 (1945)
aff'd 248 Ala. 1, 26 So. (2d) 603 (1945). 5 354 Ill. 430, 188 N.E. 422 (1933). 6 5
Wigmore, Evidence (3d ed. 1940) 1438. 7 State v. Brown, 209 Minn. 478, 296 N.W.
582 (1941). For collected cases, see 5 Wigmore, Evidence (3d ed. 1940) 1442 note 3.
8 State v. Brown, 209 Minn. 478, 296 N.W. 582 (1941). See Arseneau v. State, (Tex.
Civ. App. 1943) 171 S.W. (2d) 132; 'but see People v. Holmes, 369 fI1. 624, 17 N.E. 2d
562 (1938). 9 5 Wigmore, Evidence (3d ed. 1940) 1447. 10 For collected cases, see 5
Wigmore, Evidence (3d ed. 1940) 1447 note 1.
Many courts have limited the applicability of the opinion rule in cases concerning dying
declarations to exclude only statements of conclusion or opinion of which the declarant
cannot know and does not state the facts upon which the conclusion or opinion is
based. An example of this would be the following statement in State v. Wilks:"l "You go
away from me; Virgil (the defendant) killed me; you and he made it up this afternoon to
kill me tonight." At the time of the shooting the deceased was in a lighted room, and the
shot was fired from the darkness outside through a wire screen, a glass window, and a
lace curtain. The deceased could not have seen his assailant, and no facts are stated
showing why the defendant was picked as the murderer. The whole statement was held
inadmissible. Another example where the exclusion of a statement might be justified on
the grounds that it was an opinion only is a case where the deceased tells which of
different drinks poisoned him and does not tell on what basis his decision lies.' 2
Following this same line of reasoning, if what is really meant to be a statement of fact is
stated in the form of an opinion, it should not be excluded. In Owens v. State'3 the
deceased said a named person "assassinated" him. The court, in admitting the
statement, said that although in a legal sense the word "assassinate" might in some
cases be a conclusion, in the light of circumstances surrounding this case it was clear
that the decedent merely was stating the fact that the defendant shot him without
apparent cause. Similarly the statements that the defendant "was trying to get out his
gun" and "was reaching in his pocket for his revolver" have been held statements of fact
and not opinion.14 In contrast to these cases are many in which courts make fine
distinctions between fact and opinion in a field where such distinctions serve no useful
purpose. In cases only three years apart the Alabama Appellate Court admitted a
statement by the deceased that the defendant "killed" him but excluded one that the
defendant "murdered" him.15 The word "murder" was said to be a conclusion whereas
"kill" was a statement of fact. Technically this is correct, but it has little relevancy as
regards the admissibility of a dying declaration. The opinion rule has also led many
courts to exclude otherwise admissible statements where the deceased indicated a
motive or an absence of motive. Certain courts have time and again excluded the
statement that the defendant "shot me for nothing" although they would have admitted
the statement if the words "for nothing" had not been added. 16 Fortunately most courts
now either allow such a

12 278 Mo. 481, 213 S.W. 118 (1919). 12 People v. Raber, 223 N.Y.S. 133 (1927). For a
collection of cases in which the admissibility of dying declarations of one poisoned is
discussed, see 25 ALE 1370, 1391 (1923). 13 11 Ga. App. 419, 75 S.E. 519 (1912). 14
Gaines v. State, (Tex. Crim. Rep. 1910) 127 S.W. 181; State v. Brown, 188 Mo. 451, 87
S.W. 519 (1905). See also State v. Strawther, 342 Mo. 618, 116 S.W. (2d) 133 (1938).
15 Pilcher v. State, 16 Ala. App. 237, 77 So. 75 (1917) ("murdered"); Parker v. State, 10
Ala. App. 53, 65 So. 90 (1914) ("killed"). 16 Nolan v. Coin., 261 Ky. 384. 87 S.W. (2d)
946 (1935) ; Reno v. Com., 258 Ky. 166, 79 S.W. (2d) 692 (1935); Philpot v. Com., 205
Ky. 636, 266 S.W. 348 (1924); Gardner v. State, 55 Fla. 25, 45 So. 1028 (1908).

statement or merely exclude the words "for nothing." Yet such statements as "he shot
me in cold blood" are still excluded in some jurisdictions. 17 Closely akin to this rule is
the requirement that only facts leading up to or causing the fatal injury are admissible. A
full narration of the occurrence causing death is usually allowed, however. In the
prosecution of a defendant for manslaughter where death was caused by an illegal
abortion, the Illinois Supreme Court held a written 'dying declaration admissible which
contained the decedent's version of occurrences commencing with her first visit to the
defendant's office and terminating with a description of her physical condition after the
criminal act.' 8 All of this was held a material and competent part of the proof of matters
connected with the alleged abortion and death. Even the deceased's conclusions
regarding her operation did not render the dying declaration inadmissible, since they
were based on antecedent facts stated in the declaration.19 Where the decedent tells of
past acts which would serve as the motive or show bad feelings between defendant and
deceased, these are excluded.20 If the deceased did not know as a fact who killed him,
then, since his conclusion as to his assailant would be excluded, there might be
justification for also excluding statements of past acts, since a court will not predicate a
present assault on the fact of prior assaults; but when the deceased positively identifies
the accused as his assailant, the jury should be given the benefit of any declaration of
prior acts to show motive or bad feeling. In such a case the accused is not identified as
the assailant because of his past acts, and thus the most valid objection to the
admissibility of such statements is not present. Narrations of occurrences not connected
with the fatal act are excluded by most courts, however. Occasions have arisen where
the declarant has died before he could complete his dying statement. Some courts have
excluded the portions of the statements made on the ground that the declarant, had he
been able to complete the statement, might have qualified what he said.2 1 It is
immaterial in such a case how much of the affair is told as long as the declarant told all
he intended.2 2 Mlany courts severely limit this rule by applying it only to matters of
substance, however.2 3 The question of what form is preferable often arises in respect
to dying declarations. The fact that a declaration is written or sworn to neither adds to
nor detracts from its admissibility. Where there is a written d&claration, it will not
preclude testimony of additional oral

17 Skeggs v. State, 24 Ala. App. 307, 135 So. 431 (1931) cert. denied 223 Ala. 221, 135
So. 433 (1931) ; White v. State, 24 Ala. App. 442, 136 So. 420 (1931). 18 People v.
Kreutzer. 354 Ill. 430. 188 N.E. 422 (1933). 19 Accord: Com. v. Smith, 213 Mass. 563,
100 N.E. 1010 (1913). For a resum6 of cases discussing the opinion rule in regard to
declarations concerning abortions, see 25 ALR 1370, 1380 (1923). 20 Webb v. State,
(Tex. Crim. Rep. 1937) 106 S.W. (2d) 683; State v. Shelton, 116 W. Va. 75, 178 S.E. 633
(1935); Freihage v. United States (C.C.A. Alaska, 1932) 56 F. (2d) 127; Wolfe v. State,
200 Ind. 557. 159 N.E. 545 (1928). 21 Daughters v. Com., 255 Ky. 172, 73 S.W. (2d) 10.
94 ALR 673 (1934). 22 State v. Tubbs, 101 Vt. 5, 139 Atl. 769 (1928) ; Kalb v. State, 195
Ga. 544, 25 S.E. (2d) 24 (1943). 23 Ward v. State. 3 Blackford (Indiana) 101 (1846); of.
Kalb v. State, 195 Ga. 544, 25 S.E. (2d) 24 (1943). But of. State v. Brinkdey, 183 N. C.
720, 110 S.E. 783
declarations. The fact that the declaration, if written, is not in the declarant's words or is
not written by him will not render it inadmissible.2 4 Nor will the fact that leading
questions are asked him invalidate the declaration. Even though the victim can answer
only yes or no to questions, such is admissible to the jury for their consideration if other
qualifications for admission are met.2 5 Should it appear that the statement was really
not that of the accused, however, or that he was led to assent to the opinion of another,
the court may reject the statement.2 6 If an oral statement is copied down, such copy
has no greater validity than the account of anyone who witnessed the declaration, but
the witness who copied the declaration should be allowed to use it to refresh his
recollection. If the written account is signed, however, most courts apply the parol
evidence rule to preclude oral testimony. Others admit both the written and the oral
testimony.2 7 The admissibility of dying declarations is severely restricted by many
rules, some of which are purely arbitrary and some of which are based on reason but
which have been carried past the point of value. The legislatures of some states have
set about to abolish these restrictions.2 8 Progressive courts in other states have
themselves done much to alleviate the situation. But until these effects have materially
multiplied, it is of the utmost importance that those who receive dying declarations guide
the efforts of the declarant to cover those questions requisite to admitting the
declaration and to avoid the pitfalls of opinions and conclusions.

ROBERT H. KiUGMAN 24 Piercy v. State, 138 Neb. 301, 293 N.W. 99 (1940). 25
People v. Madas, 201 N.Y. 349, 94 N.E. 857 (1911) ; Simpkins v. Com., 229 Ky. 348, 17
S.W. (2d) 245 (1929); State v. Tubbs, 101 Vt. 5, 139 Atl. 76. (1928). 26 For collected
cases, see 5 Wigmore, Evidence (3d ed. 1940) 1445 note 7. 27 Compare State v.
Elias, 205 Minn. 156, 285 N.W. 475 (1939) with Huff v. Com., 270 Ky. 36, 108 S.W. (2d)
1044 (1937). See Gray v. State, 181 Md. 439, 30 A. (2d) 744 (1943). 28 Colo. Stat.
Anno. (1935) Cur. Supp. (1947) tit. 3, ch. 63, 21; North Carolina Gen. Stat. (1943) ch.
28, art. 19, 28-173; Arkansas Statutes, Acts 1935, p. 90 (followed in Missouri Pacific R.
Co. v. Hampton, 195 Ark. 335, 112 S.W. (2d) 428 (1938). For collected cases based on
state statutes, see 5 Wigmore, Evidence (3d ed. 1940) 1432 notes 4, 5, 6, and 7.

THE ADIISSIBILITY OF DYING DECLARATIONS

I. INTRODUCTION It has been said that of all the exceptions to the hearsay rule,
the dying declaration is the "most mystical in its theory and the most
arbitrary in its limitations."' In recent years the dying declaration exception
has been attacked by several writers. 2 It has been suggested that dying
declarations should not be admitted in either civil or criminal cases.3 In 1968
the Supreme Court, in Bruton v. United States,4 held that the admission of an
out-of-court inculpatory statement of one co-defendant, in a joint trial,
violated the confrontation clause of the sixth amendments because it
deprived the other co-defendant of his right of cross-examination. The Court
reasoned that, despite instructions to the contrary, there was a substantial
risk that the jury would look to the extrajudicial incriminatory statements of
one co-defendant to determine the guilt of the other co-defendant. Bruton
and other recent Supreme Court decisions, together with the general
infirmities of the doctrine itself, cast doubt on the reliability and
constitutionality of the dying declaration. II. APPLICATION OF THE DYING
DECLARATION Dying declarations are admitted as an exception to the
hearsay rule when they are made by declarants who are dead at the time of
trial7 and who, at the time they made the declaration, believed that their
death was near and certain.8 It must also appear that the declarant, if living,
would have been competent to testify.9 Moreover, dying declarations are
admissible only in trials for homicide, where the accused is charged with the
death of the declarant.' 0 This last restriction has been criticized by many
writers." Professor Wigmore points out that the restriction of dying
declarations to homicides developed because the "misconstrued words of a
treatise-writer, followed by a 'nisi prius' decision or two, started a heresy
which ... limits the [dying declaration's] use to criminal cases of 'homicide."'2
The text writer to whom Wigmore was referring was Serjeant East who, in
Pleas of the Crown'3 said: Besides the usual evidence of guilt in general
cases of felony .... there is one kind ol evidence more peculiar to the case of
homicide, which is the declaration of the deceased after the mortal blow, as
to the fact itself, and the party by whom it was committed. Evidence of this
sort is admissible in this case on the fullest necessity; for it often happens
that there is no third person present to be an eye-witness to the fact; and the
usual witness on occasion of other felonies, namely, the party injured
himself, is gotten rid of.14 At early common law, the English courts made no
distinction between receiving dying declarations in criminal or civil cases. 1 A
good example of the early view is the case of Wright v. Littler,16 in which
Lord Mansfield admitted a dying declaration in an action of ejectment.Y7
Although no authority was cited by Serjeant East' 8 for his assertion that
dying declarations were peculiar to homicide cases,19 and even though the
early common law view was to the contrary, his position has become the
majority view in the United States. One of the reasons why the majority of
American courts have been reluctant to extend the dying declaration to
cases other than homicide appears to be a reluctance to approve departures
from the general rule excluding hearsay.21 Logically, it would seem that the
admissibility of a dying declaration should not hinge upon the type of case in
which it is offered in evidence. But it may be that the common law "heretical"
limitation has operated as a salutory check upon the "dying declarations"
exception itself-an exception reluctantly made by the courts . .. and an
exception which most courts apply with great caution. Perhaps the limitation
was but a refusal (albeit an illogical refusal) to extend what might be said to
be an unsound exception to the hearsay rule. In other words, it may be that
the illogical insistence of courts that the use of dying declarations be limited
to homicide cases results from their natural disinclination to approve
departures from the basic general rule excluding hearsay testimony.22
Another reason advanced for refusing to admit dying declarations other than
in homicide cases is that a dying declarant who has a family would be
tempted to falsify his statement in a civil case where a pecuniary recovery is
the measure of damagesPm Although the restrictive view of the dying
declaration is still the majority view, there has been a gradual extension of
the dying declaration exception by legislative enactment and decisional law.
In Thurston v. Fritz24 the Kansas Supreme Court held that the dying
declaration of a grantor concerning the circumstances of the sale of his farm
was admissible in an action on the contract for the sale of the land.25 Since
the decision in Thurston only one other court has, without the aid of a
statute, expressly adopted the Thurston doctrine.20

Dying declarations have also been admitted in wrongful death actions,2 7


negligence actions, 28 and in actions to revoke the license of a physician who
performed a criminal abortion resulting in death.20 While state legislatures have
been almost as reluctant as the courts to extend dying declarations to cases other
than homicide, there are several states that have liberal statutes. Only two states,
Colorado" and Oregon,8 1 have statutes which provide that a dying declaration may
be admitted in all civil or criminal cases. However, other states have enacted
legislation allowing dying declarations in wrongful death actions, where the
declaration is used at the trial of the person who is alleged to have been responsible
for the declarant's death.8 2 Other jurisdictions have passed statutes allowing dying
declarations in quasi-criminal bastardy proceedings, 3 and some allow the dying
declaration of the deceased woman in prosecutions for abortion.34 Rule 63(5) of the
Uniform Rules of Evidence88 makes certain changes in the common law relating to
dying declarations in civil cases as well as criminal prosecutions. The content of the
dying declaration is not restricted to an exposition of the circumstances attending
the death of the declarant.80 Rule 63(5) also omits any requirement that the
deceased declarant be the victim of defendant's crime in a criminal prosecution, or
that he be a party who is represented in a civil action. The liberality of the Rule has
been criticized.8 7

While it has been recognized that dying declarations are not always true3s and in
many cases are contradictory, 9 they have been admitted as an exception to the
hearsay rule because of an historical belief in their reliability, and because of
necessity. It had long been believed that a man about to die and meet his maker
would be unwilling to die with a lie on his lips.40 As Dean Wigmore stated, "[a]l
Courts have agreed, with more or less difference of language, that the approach of
death produces a state of mind in which the utterances of the dying person are to
be taken as free from all ordinary motives to mis-state."4 1 Nineteenth century
courts in both the United States and England, reflecting that century's "practically
universal belief in a system of rewards and punishments to follow moral
dissolution," 42 accepted this circumstantial guarantee of reliability as the
equivalent of an oath and cross-examination. 43 The "divine retribution" rationale
underlying the acceptance of the reliability of dying declarations has been severely
criticized 44 and is looked upon with suspicion by some courts.4 5 They question
whether a rule based on nineteenth century religious beliefs has relevance in
today's society: 46

wherein Judge Vann said "[elxperence shows that dying declarations are not always
true.... Men sometimes lie even when facing death, as has frequently been known of
convicts about to be executed, and the motive of selfexoneration which induced
them to lay the crime on someone else might move a declarant to say that the
accused was the aggressor by committing the first assault. Experience shows that
dying persons have made self-serving declarations, such as false accusations, in
order to destroy their enemies, and false excuses in order to save their friends." See
also White v. State, 30 Tex. App. 652, 18 S.W. 462 (1892) where the decedent first
stated that a Mr. Mason, along with two other persons that the decedent named,
shot him. Shortly thereafter, the decedent said that only Mr. Mason knew of the plan
to murder him. Both accusations as to the complicity of Mr. Mason in the murder
were totally false.

where the court, in speaking of dying declarations, said: "If we look for the basis
upon which rests this exception, we find it in the assumption, born of experience,
that 'the approach of death produces a state of mind in which the utterances of the
dying person are to be taken as free of ordinary motives to mis-state....' The fact
that the exception has as its basis only the assumption mentioned above . . .
[means] that extreme caution is required of the trial court before a dying
declaration is received in evidence .

Belief in the imminence of death .. is considered an effective deterrent to conscious


or unconscious falsification, and when supernaturalism had a more zealous
following, this may have acted as a substantial barrier to falsification. It is dubious,
however, whether under modem conditions, with the breakdown of unquestioning
belief in, and concern with, religious doctrines on the part of many, the inference is
a valid one. Even in deeply religious communities it is very doubtful that the
inference could be properly drawn.47 It has also been pointed out that no empirical
studies are available as to the psychological effect that the knowledge of imminent,
certain death has on a human being.48 There are several other factors which tend
to weaken the argument that dying declarations are inherently trustworthy. First,
the declarant, being in pain and agony as a result of the wounds that he received,
may have a defective memory. Second, the declarant, surrounded by his family and
friends, is apt to state only his side of the affair. Third, the dying declaration is apt
to be distracting and confusing to the witness to whom it is related. Fourth, those
about the declarant do not usually seek to elicit qualifying facts unfavorable to the
declarant. 49 Dying declarations are also admitted because they are necessary. The
necessity principle has been given two interpretations. The first interpretation
argues that since the declarant is unavailable the court will be deprived of his
evidence unless it is allowed to use his extra-judicial statements.5 This broad view
of necessity appears tenuous, since in every hearsay situation, unless an exception
is made, the court is being deprived of the declarant's statement; nevertheless, the
evidence is excluded. The narrower and more widely accepted view is that dying
declarations are necessary in order to bring murderers to justice.5 ' Those who
agree with the second interpretation believe that since homicide is often a secret
crime the dying declarant is often the only witness, and the guilty person may
escape punishment if the declaration is not admitted into evidence. However, dying
declarations have been admitted in cases where the killing was not secret, where

there was other adequate testimony, 52 and even where the murder was
conceded.53 Some writers feel that this illustrates the self-contradictory aspects of
this rationale, in that if public necessity was logically construed, a dying declaration
would be used only where it was the only evidence that the prosecution had against
the accused.54 There could be situations where the only evidence possessed by the
prosecution in a homicide case is the dying declaration of the victim, and in such a
case the narrower view would make more sense. However, the denial of the
accused's right to confront the witnesses against him, and the possible prejudicial
effect of the dying declaration being admitted into evidence in the vast majority of
cases where it is not the only evidence possessed by the prosecution,5 5 greatly
outweighs upholding the dying declaration because it might be necessary for
conviction in a few cases. Even in those cases where the dying declaration is the
only evidence against the accused, the absence of other evidence and the dramatic
effect of the dying declaration, which might cause a jury to give it greater weight
than it actually merits, would appear to militate against its admission.50 However, it
appears at present that an accused may properly be found guilty solely on an
uncorroborated dying declaration.57 The "public necessity" rationale has been
criticized as "obviously a makeshift reason"58 and since practically every murder
conviction is obtained without the aid of dying declarations,"0 it would appear that
dying declarations are not indispensable to the prosecution of homicides. The
"public
necessity" doctrine developed at a time when police detection was not nearly as
scientific and efficient as it is today. As one writer has stated, "it seems that the
science of criminology has largely obviated this necessity [of dying declarations] by
development of new techniques such as fingerprinting, ballistics and the like. True,
evidence by these means is largely circumstantial, but it cannot be seriously
doubted that it is ordinarily more reliable than statements of a man whose faculties
may be greatly impaired by a mortal wound and thoughts of approaching death."16
0 In no class of cases should doubtful evidence be more severely restricted or
excluded than in cases that may result in incarceration for life or a sentence of
death. It would appear that the "public necessity" rationale is self-contradictory and
is not supported by empirical evidence.61 IV. WEIGHT TO BE GIVEN DYING
DECLARATIONS AND JURY INSTRUCTIONS A. Evidentiary Weight "As a general rule, it
is the function of the trial judge to determine the competency and admissibility of
evidence and the function of the jury to weigh its probative value and credibility."02
However, there is disagreement among courts as to the proper weight to be given
dying declarations and as to the instructions, if any, that are to be given by the
court to the jury regarding such declarations.63 Some courts have held that the
evidentiary value or weight of dying declarations is equal to that of the evidence
presented under oath and before the jury.64 However, many courts have stated that
dying declarations are of less evidentiary value and weight than evidence given
under oath which is subject to cross-examination. 5 The courts which hold that
dying declarations are of less evidentiary value than statements made under oath
do so because of a suspicion that dying declarations are not inherently
trustworthy.06 B. Instructions to the Jury There is also a disagreement among
American jurisdictions as to what a judge may or should tell the jury about the
weight to be given dying declarations.0 7 The answer to this question depends in
part on whether, in a particular juris-

diction, the judge has a right to comment on the evidence.u If the judge has this
right then he may instruct the jury on the evidentiary weight of the dying
declaration. 69 Where the judge is not allowed to comment, because it is felt that
his remarks would be an invasion of the jury function, then he would of course be
prohibited from instructing on the weight to be given the dying declaration.70
However, even though they disagree as to what a judge may or should say, the
courts of this country are in general agreement with the proposition that dying
declarations should be weighed by the jury with great caution.-- There is a
difference between instructing the jury to receive and weigh dying declarations with
caution, and instructing the jury as to the amount of evidentiary weight to be given
such declarations. 72 The former is held not to be a comment on the evidence,
while the latter is held to be a comment on the evidence. 73 As a result, some
states require 74 or permitT5 the judge to instruct the jury that dying declarations
are to be weighed with great caution, while some do not permit instructions to this
effect. 76 The courts which require or permit cautionary instructions do so because
they recognize that a dying declaration is a dramatic piece of evidence, which might
impress the jury far beyond its probative value.77 While this inherent weakness of
dying declarations has not received the attention from the courts that it deserves,7
8 it has been seriously considered by some courts and writers. 70 Professor
Wharton has said: Dying declarations have every element of dramatic evidence. As
the last utterance of a sentient, conscious being, standing on the threshold of
eternity, they possess an impressiveness out of all proportion to their evidentiary
value. In all homicide cases, the elemental passions are at any moment apt to
override the judgment. A court may be judicial and impartial, and a jury
dispassionate, up to the point where the dying declaration is admitted, and then
find its impartiality and self-restraint seriously tried over the recital of the dying
declaration.80 In Commonwealth v. Muljerno,81 the court, although affirming the
defendant'sconviction of murder, said, "[w] e realize the force of the suggestion,
that dying declarations possess an impressiveness, which is sometimes out of all
proportion to their evidentiary value, and the court and jury may sometimes have
their better judgment overridden by the admission of such statements, having the
effect of sweeping away their impartial attitude, and substituting for it the
emotional element, as presented by the picture depicted by the dying man .... "82
There have been cases where the court has reversed a conviction for homicide, in
part because they recognized the dramatic effect that a dying declaration may have
had on a jury. 3 The dramatic and emotional impact of a dying declaration, when
considered with the doubtful reasons for allowing their admission, is of great
importance in considering the possible unconstitutionality of dying declarations. V.
RECENT CASES In Bruton v. United States,8 4 the petitioner and his co-defendant
Evans were charged with armed postal robbery85 and were convicted in a joint
federal trial, largely on the basis of a postal inspector's testimony that Evans had
made an oral confession which inculpated petitioner. Petitioner contended on appeal
that the admission of the confession was prejudicial because he had been denied
his constitutional right to cross-examine the witness against him. The Court of
Appeals 6 found that Evans' confession was coerced, and set aside his conviction,8
7 but affirmed the finding of the petitioner's guilt. The Court of Appeals relied on the
Supreme Court's holding in Delli Paoli v. United States,88 that the limiting
instructions employed by the trial judge were sufficient, under the circumstances of
the case, to enable the jury to determine the defendant's guilt without considering
the inadmissible hearsay. 9 The Supreme Court, rely

ing on Jackson v. Denno,90 Pointer v. Texas,9' and Douglas v. Alabama,2 held that
petitioner's right to confront the witnesses against him had been violated and
reversed his conviction, thereby overturning Delli Paoli.03 The Supreme Court in
Bruton applied the rationale of Jackson by agreeing with the suggestion made in
People v. Aranda, 4 that " [i] f it is a denial of due process to rely on a jury's
presumed ability to disregard an involuntary confession, it may also be a denial of
due process to rely on a jury's presumed ability to disregard a co-defendant's
confession implicating another defendant when it is determining that defendant's
guilt or innocence." 95 However, in Bruton, Mr. Justice Brennan refused to accept
Jackson as meaning that a jury can never follow instructions to disregard
inadmissible evidence. 0 The Court in Bruton appeared to establish a balancing test
to determine whether a limiting instruction is proper. The test would weigh the
probability that the jury would not be able to follow the court's instructions against
the amount of harm which would be done to the defendant if the jury failed to follow
the instructions.97 Several courts have regarded limiting instructions with suspicion.
In Nash v. United States,98 Judge Learned Hand said that the limiting instruction is a
"recommendation to the jury of a mental gymnastic which is beyond, not only their
powers, but anybody's else [sic].*"09 Moreover, a well known study of jury behavior
concluded that limiting instructions, rather than furthering the
search for truth, probably confuses the jurors and increases the possibility of
injustice. 100 In Bruton, Mr. Justice Brennan, agreeing that jury instructions can be
confusing and prejudicial said, "[d]espite the concededly clear instructions to the
jury to disregard Evans' inadmissible hearsay evidence inculpating petitioner, in the
context of a joint trial we cannot accept limiting instructions as an adequate
substitute for petitioner's constitutional right of cross-examination. The effect is the
same as if there had been no instruction at all." 10' In recent years, the Supreme
Court has decided several important cases involving the confrontation clause. In
Pointer v. Texas, the Supreme Court held that the constitutional right of an accused
to confront witnesses against him is made obligatory on the states by the
fourteenth amendment. 10 2 The Court felt that the right of confrontation
necessarily included the right of crossexamination. Mr. Justice Black, writing for the
majority in Pointer stated: It cannot seriously be doubted at this late date that the
right of cross-examination is included in the right of ,an accused in a criminal case
to confront the witnesses against him. And probably no one, certainly no one
experienced in the trial of lawsuits, would deny the value of cross-examination in
exposing falsehood and bringing out the truth in the trial of a criminal case .... The
fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the
belief of the Framers of those liberties and safeguards that confrontation was a
fundamental right essential to a fair trial in a criminal prosecution.' 0 3 In Douglas v.
Alabama, 04 which applied Pointer, and was relied upon in Bruton, the prosecution
read statements from the out-of-court confession of one co-defendant under the
guise of refreshing his memory. These statements inculpated petitioner. The
codefendant, relying on his privilege against selfincrimination, neither denied nor
affirmed that he had made the confession. The

Supreme Court held that petitioner was denied his right to cross-examine the
witnesses against him. 0 5 It has been noted that the decision in Bruton did not
have to have constitutional implications.' 0 6 The question concerning the Court in
Bruton was whether, and if so, why, the inculpatory parts of Evans' confession had
to be excluded from evidence. Under the federal evidentiary rules, the statement
"was inadmissible hearsay, a presumptively unreliable out-of-court statement of a
nonparty who was not a witness subject to cross-examination."'10 7 Thus, the Court
could have held that limiting instructions would no longer be acceptable to remove
the type of prejudicial inadmissible hearsay evidence that was used in the case at
bar from the consideration of the jury. 08 The Court specifically refused to answer
the question as to the possible effects that the decision would have on the
established exceptions to the hearsay rule. 0 9 The hearsay rule and the
confrontation clause have been thought to be generally coextensive insofar as their
protection for criminal defendants extends," 0 because at the very core of both is
the right of cross-examination."' The Supreme Court has never suggested that the
overlap is definitely coextensive."12 However, the Court, in deciding cases which
involved an interpretation of the sixth amendment, has had to consider whether the
hearsay exceptions recognized by the common law are permitted under the sixth
amendment." 3 In general the Court has answered in the affirmative. 114 This static
view of the sixth amendment as sanctioning the exceptions which existed at the
time of the sixth amendment's adoption has been criticized as violative of the
principle that the Constitution has to be constantly reevaluated in light of society's
changing needs and attitudes.15 As

stated by Chief Justice Marshall, "we must never forget, that it is a constitution we
are expounding,""" and that it is "intended to endure for ages to come, and,
consequently, to be adapted to the various crises of human affairs."' 1 7 VI. THE
CONSTITUTIONALITY OF THE DYING DECLARATION The United States Supreme Court
has never decided whether the dying declaration violates the confrontation
clause.118 However, there are statements in several decisions which indicate that
dying declarations are thought to be constitutional." 9 The cases in which the
Supreme Court has viewed the dying declaration as not being violative of the
confrontation clause involved exceptions to the hearsay rule other than the dying
declaration. 120 The Supreme Court has justified the constitutionality of the dying
declaration on the basis that the Court is bound "to interpret the Constitution in the
light of the law as it existed at the time it was adopted, not as reaching out for new
guaranties of the rights of the citizen, but as securing to every individual such as he
already possessed as a British subject .... ,121 and therefore recognized that
exceptions to the rights guaranteed by the Bill of Rights, such as dying declarations,
were to be respected. This is clearly not consonant with Chief Justice Marshall's view
of constitutional interpretation. 122 The dying declaration is no longer relevant to
the needs or beliefs of the nation. In sustaining the constitutionality of the dying
declaration, some courts have taken the position that the dying declarant is not to
be regarded as the witness whom the accused is constitutionally entitled to confront
or to meet face to face.' 23 This reasoning has not received unanimous acceptance.
In State v. Houser,"24 the court, in commenting upon the reasoning that the witness
who relates the dying declaration to the court is the real witness, said, "[i]t is the
dying man who is speaking through him, whose evidence is to have weight and
efficacy sufficient. . . to take away the prisoner's life. The living witness is but a
conduit pipe-a mere organ, through whom this evidence is conveyed to the court
and jury."'125 This seems the better view, since in the jury's mind a dying
declaration may well be the equivalent of testimony from the grave, thereby giving
it undue weight and probative force, greatly prejudicing the defendant. In Douglas,
Mr. Justice Brennan found that the reading by the prosecuting attorney of the co-
defendants' confession was prejudicial to petitioner in that "[ajlthough the Solicitor's
reading of Loyd's alleged statement ... [was] not technically testimony, the
Solicitor's reading may well have been the equivalent in the jury's mind of
testimony that Loyd in fact made the statement . *... ,126 Similarly, in a trial
involving a dying declaration, the dying declarant is the real witness whose words
are given probative value. The theories justifying admission of the dying declaration
as an exception to the hearsay rule are therefore, at their best, most questionable.
The basis for admitting such statements as an exception to the hearsay rule,
coupled with the possible dramatic effect of dying declarations upon a jury,127 and
the inability of the defendant to cross-examine the "real" witness, the dying
declarant, arguably makes the dying declaration violative of the confrontation
clause of the sixth amendment.'2 8 "A basic premise of the Confrontation Clause . ..
is that certain kinds of hearsay ... are at once so damaging, so suspect, and yet so
difficult to discount, that jurors cannot be trusted to give such evidence the minimal
weight it logically deserves, whatever instructions the trial judge might give."'1-9
The dying declaration falls into this category of hearsay and should be declared
inadmissible, at least in criminal cases.

EXCITED UTTERANCE AND DYING DECLARATION: TWO


EXCEPTIONS TO THE HEARSAY RULE - BY GABRIEL CHRISTIAN,
ESQ.
Hearsay is usually not allowed in court, but there are many exceptions. This
article discusses two of those exceptions: "excited utterances" and "dying
declarations."
Definition of "Hearsay"
The legal definition of hearsay is simple. It's an out-of-court statement,
made by someone not a party, used, or tried to be used, in court to prove
the truth of what was said. A simple example of that might be: Jane
remarks to a friend one day that, "that guy must be over six feet tall!" Bob
heard her comment and later, while attempting to prove that Joe is over six
feet tall, testifies that "Jane said he must be over six feet tall." That will be
hearsay and normally not permitted into evidence.
Exceptions to the Hearsay Rule
There are many exceptions to the hearsay rule. As a general rule of thumb,
because what makes hearsay objectionable is that you lose the right to
"face your accuser" and test the accuracy of the comments, the exceptions
tend to be situations that negate the (absent) witness's opportunity or
reason for lying.
Excited Utterances
An excited utterance is just what you might think: a statement (an
exclamation!) made is some sort of surprise or excitement. Consider the
example above, where Jane is commenting on Joe's height. If Joe is only
five years old, there are situations where Jane's comment could be very
excited and might be allowed as an exception to the hearsay rule
Dying Declaration
Under the Federal Rules of Evidence, a dying declaration is admissible,
when the declarer is unavailable to testify, 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 his actual knowledge, that
relates in some way to the cause or circumstances of his or her death.
For example, suppose Alice stabs Bob and then runs away, and a police
officer happens upon Bob as he lies in the gutter, bleeding to death. If Bob
manages to sputter out with his last words, "I'm dying - Alice stabbed me"
(or even just "Alice 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 Bob 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 Bob's last words are "Alice killed Carol", that
statement will not fall within the exception, and will be inadmissible (unless
Alice killed Bob and Carol 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, Bob 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 Bob 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.

Dying declaration cannot


form basis of conviction if it
is not trustworthy'
Court: if it is suspicious, it should not be acted upon without
corroborative evidence

A dying declaration made by a victim, accusing a person


of having been responsible for his/her death, cannot
form the basis of conviction if it suffers from infirmity,
the Supreme Court has held.

A Bench of Justices P. Sathasivam and B.S. Chauhan


said, Where a dying declaration is suspicious, it should
not be acted upon without corroborative evidence.
Likewise, where the deceased is unconscious and could
never make any declaration, the evidence with regard to
it is to be rejected.

Writing the judgment, Justice Sathasivam said: Though


there is neither a rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration,
the court must be satisfied that it is true and voluntary
and in that event, there is no impediment in basing
conviction on it without corroboration. It is the duty of
the court to scrutinise the dying declaration carefully
and ensure that it is not the result of tutoring, prompting
or imagination.

In the instant case, appellant Surinder Kumar was


convicted by the Punjab and Haryana High Court to
undergo life imprisonment for causing the death of his
friend's wife by pouring kerosene on her and setting her
ablaze. The prosecution alleged that he was visiting his
friend Inder Pal's house and developed an illicit
relationship with his wife and killed her after the matter
came to light. The trial court found her dying
declaration untrustworthy and acquitted the appellant.
However, the High Court reversed the acquittal and
convicted him and awarded life sentence.

The present appeal is directed against this judgment.

Allowing the appeal, the Bench said: Inasmuch as the


dying declaration is the only piece of evidence put
forward against the accused, in the light of our
discussion and reasoning, the appellant/accused is
entitled to the benefit of doubt. We are satisfied that the
dying declaration was totally in conflict with the version
of the prosecution as to the time of her burning, relation
of the appellant with the deceased, except for the
implication part, which was clarified in favour of the
appellant by prosecution witness Surinder Singh in his
cross-examination. In such circumstances, the dying
declaration was totally unacceptable, could not be
believed as trustworthy, which was rightly not believed
so by the trial Court.
The Bench pointed out that all the principles laid down
by this court were fully adhered to by the trial court and
rightly acquitted the accused, but on wrong assumption
the High Court interfered with the order of acquittal. It
said, Consequently, the conviction and sentence
ordered by the High Court is set aside and the order of
acquittal passed by the trial court is restored. Since the
appellant is on bail, his bail bonds shall stand
discharged.

Sec. 37. Dying declaration. The declaration of a dying person,


made under the consciousness of an impending death, may be
received in any case wherein his death is the subject of inquiry,
as evidence of the cause and surrounding circumstances of such
death.

NOTES:

What are dying declarations?

Dying declarations are the statements made by a person


after the mortal wounds have been inflicted, under the
belief that death is certain, stating the facts concerning
the cause of, and the circumstances surrounding the
homicide. (Wharton's Criminal Evidence)

Requisites for admissibility

1. That death is imminent and the declarant is conscious


of that fact

Considerations for the consciousness of imminent


death:
a. Words or statements of the declarant
b. His conduct at the time the declaration was made
c. Serious nature of his wounds as to engender a belief
on his part that he would not survive therefrom

2. That the declaration refers to the cause and the


surrounding circumstances of such death

3. That the declaration relates to facts which the victim is


competent to testify to

4. That the declaration is offered in a case wherein the


declarants death is the subject of the inquiry.

This is the most significant exception to the hearsay


evidence rule. If before he died, X told a police officer
that it was Y who shot him, it would be the officer who
would be testifying in court. The officer has no personal
knowledge of the event. If the dying declaration of X is
offered to prove the guilt of Y, the testimony of the officer
in court is definitely hearsay. The dying declaration of X is
however, an exception to the inadmissibility of hearsay
evidence. There has been a traditional acceptance of
dying declarations because of the presumption that a
dying person will tell the truth before he meets his
Creator. While there is no guarantee that a person in the
throes of death will tell the truth, this assumption has
been traditionally accepted for almost two hundred years,
an assumption which has trickled down to modern times.

The most significant element therefore, of a dying


declaration is that the declaration must have been
conscious of his impending death. It is this consciousness
which is assumed to be the compelling motive to tell the
truth.
To be admissible as a dying declaration, the declaration
must relate to the cause and circumstances of the
declarant. Any statement he makes not related to the
circumstances of his death is inadmissible as a dying
declaration.

The dying declaration is admissible in any case


provided the subject of inquiry in that case is the death
of the declarant. The old rule that it is admissible only in
a criminal case no longer holds true because of the
phraseology of Sec. 37 of Rule 130.

It is required that the declarant should die. If he lives,


there is no need for the dying declaration because the
declarant may testify personally based on his own
personal knowledge. Suppose by chance he survives but
is unable to testify due to severe physical and emotional
infirmity, may his declaration be admitted in evidence?
Yes but not as a dying declaration. It could be admitted
as a statement made by a person immediately
subsequent to a startling occurrence. The shooting of the
declarant is the startling occurrence. The statement
made as to the circumstances of the shooting, while not
a dying declaration because he survived, could be
considered as part of the res gestae under Sec. 42 of
Rule 130.

Intervening time from the making of the declaration up


to the actual death is immaterial as long as the
declaration was made under the consciousness of
impending death and as long as no retraction was made
by the declarant before his death

CASES:

People v. Devaras, 37 SCRA 697 (1971)


Facts: The next morning after being stabbed or 11 hours
later, as the victim was about to be taken to the hospital,
a patrolman was able to get his statement as to the
identity of the perpetrators. The victim was unable to
sign the statement and he died the next day.

Held: The statement was not part of the res gestae


because of the lapse of considerable time between the
commission of the offense and the taking of the
statement. However, the statement amounts to a dying
declaration, as it is a statement coming from a seriously
wounded person even if death occurs hours or days after
it was inflicted if there be showing that it was due to the
wound whose gravity did not diminish from the time he
made his declaration until the end came. There is no
need for proof that the declarant state "that he has given
up the hope of life. It is enough if. from the
circumstances, it can be inferred with certainty that such
must have been his state of mind. It is sufficient that the
circumstances are such as to lead inevitably to the
conclusion that the time [of such statement] the
declarant did not expect to survive the injury from which
he actually died. Its admissibility is not affected by death
occurring hours or days afterwards.

People v. Laquinon, 135 SCRA 91 (1985)

Facts: Pablo Remonde was shot. The barrio captain found


him lying on the sand at the bank of a river. Pablos
hands were tied on his back and he was lying face down.
The barrio captain took Pablos ante-mortem statement
and learned that he was Pablo Remonde, he was shot by
Gregorio Laquinon, and that Pablo was not sure if he
would survive the gunshot wounds he suffered. Pablo
died in the hospital 3 days later. Laquinon was charged
and convicted of Murder. Laquinon argues that the
statement is not a dying declaration because it was not
made under the consciousness of an impending death.
Held: The statement of the deceased Pablo Remonde is
not admissible as a dying declaration since the deceased
was in doubt as to whether he would die or not. The
declaration fails to show that the deceased believed
himself in extremis, at the point of death when every
hope of recovery is extinct, which is the sole basis for
admitting this kind of declarations as an exception to the
hearsay rule. It may be admitted, however, as part of the
res gestae since the statement was made immediately
after the incident and the deceased Pablo Remonde had
no sufficient time to concoct a charge against the
accused.

de Leon: In Devaras, consciousness of impending death


was inferred from the extent of the injuries. In Laquinon,
the declarant expressly said that he was not sure that we
was going to die. The moral of the story is, in taking a
dying declaration, dont ask if the declarant thinks he will
die.

People v. Sabio, 102 SCRA 218 (1981)

Facts: Catralino Espina was found by his grandnephew in


his house lying and wounded. Espina asked for the police.
When police officers arrived, they asked Espina who
slashed and robbed him. Espina answered that it was
Sabio. His declaration was taken down and thumbmarked
by him. Sabio was charged and convicted of robbery with
homicide. Sabio questions the admissibility of the
declaration on the ground that it was not made under the
consciousness of an impending death because the victim
had hopes of recovery for his first word to his
grandnephew was for the latter to fetch the police.

Held: Statement is admissible. The seriousness of the


injury on the victim's forehead which had affected the
brain and was profusely bleeding; the victim's inability to
speak unless his head was raised; the spontaneous
answer of the victim that "only Papu Sabio is responsible
for my death"; and his subsequent demise from the
direct effects of the wound on his forehead, strengthen
the conclusion that the victim must have known that his
end was inevitable. That death did not ensue till 3 days
after the declaration was made will not alter its probative
force since it is not indispensable that a declarant expires
immediately thereafter. It is the belief in impending death
and not the rapid succession of death, that renders the
dying declaration admissible. The fact that the victim told
his grandnephew to fetch the police, does not negative
the victim's feeling of hopelessness of recovery but rather
emphasizes the realization that he had so little time to
disclose his assailant to the authorities.

However, only homicide was proved. The evidence


supportive of the charge of robbery is at best
circumstantial and does not establish beyond reasonable
doubt that the accused had carried away personality
belonging to the offended party. There was no eyewitness
to the alleged robbery, nor was any part of the alleged
missing objects recovered. The consummation of the
robbery cannot he inferred nor presumed from the
circumstance that the accused was seen running "with his
hands inside his shirt", or that the "barro", alleged to
have contained cash amounting to about P8, was seen on
the floor, open and empty, or that the things and
merchandise inside the house were in disarray. Nor can
the dying declaration of the victim be admitted to
establish the fact of robbery. The admission of dying
declarations has always been strictly limited to criminal
prosecutions for homicide or murder as evidence of the
cause and surrounding circumstances of death.

Interval of time may be taken into account where the


declaration was ambiguous as to whether the declarant
believed that his death was imminent when he made the
declaration.
de Leon: Could not have the statement been admissible
as proof of Sabios guilt of robbery as a part of the res
gestae?

People v. de Joya, 203 SCRA 343 (1991)

Facts: Eulalia Deamse was fatally wounded. Her


grandson, Alvin Valencia, came home and found her
wounded. He asked his grandmother "Apo, Apo, what
happened?" The deceased victim said: "Si Paqui". After
uttering those two words, she expired. It is not disputed
that "Paqui" is the nickname of Pioquinto de Joya. De
Joya was charged and convicted of robbery with
homicide.

Held: A dying declaration to be admissible must be


complete in itself. To be complete in itself does not mean
that the declarant must recite everything that constituted
the res gestae of the subject of his statement, but that
his statement of any given fact should be a full
expression of all that he intended to say as conveying his
meaning in respect of such fact. The statement as offered
must not be merely a part of the whole as it was
expressed by the declarant; it must be complete as far it
goes. It is immaterial how much of the whole affair of the
death is related, provided the statement includes all that
the declarant wished or intended to include in it. Thus, if
an interruption cuts short a statement which thus
remains clearly less than that which the dying person
wished to make, the fragmentary statement is not
receivable, because the intended whole is not there, and
the whole might be of a very different effect from that of
the fragment; yet if the dying person finishes the
statement he wishes to make, it is no objection that he
has told only a portion of what he might have been able
to tell. Since the declarant was prevented from saying all
that he wished to say, what he did say might have been
qualified by the statements which he was prevented from
making. That incomplete declaration is not therefore
entitled to the presumption of truthfulness which
constitutes the basis upon which dying declarations are
received.

In this case, the dying declaration of the deceased victim


here was incomplete. The words "Si Paqui" do not
constitute by themselves a sensible sentence. The phrase
"Si Paqui" must, moreover, be related to the question
asked by Alvin: "Apo, Apo, what happened?" Alvin's
question was not: "Apo, Apo, who did this to you?" The
deceased was cut off by death before she could convey a
complete or sensible communication to Alvin. The trial
court simply assumed that by uttering the words "Si
Paqui", the deceased had intended to name her killer. But
Eulalia herself did not say so and we cannot speculate
what the rest of her communication might have been had
death not interrupted her. We are unable to regard the
dying statement as a dying declaration naming the
appellant as the doer of the bloody deed.

Escolin: Justices Relova and Francisco and I disagree with


this decision. Under the context, what else could have Si
Paqui meant other than that he was responsible for the
crime?

People vs. Antonio (1970)

Where the declarant stated that he would not die if


treated, such statement indicates an awareness of death
and the nature of his wound and his death an hour later
qualifies such statement into a dying declaration, or at
least, as part of res gestae.

People vs. Gueron (1983)

Where, shortly after he was wounded, the victim was


asked as to whether he believed he would die and to
which he replied, I cannot ascertain, and he died the
following day, his statement is admissible both as part of
res gestae and as a dying declaration.

People vs. Laquinon (1985)

Where the victim, when asked as to whether he thought


he would die, replied, I dont know, his declaration was
not made under the consciousness of his imminent death
and does not qualify as an antemortem statement,
although the same may be admitted as part of the res
gestae since it was made immediately after the incident

The credibility and weight of the admitted dying


declaration should be determined under the same rules
used in other testimonial evidence

A dying declaration is admissible only to insofar as it


refers to facts regarding the cause and surrounding
circumstances of the declarants death

A dying declaration is admissible in any case as long as


the requisite concur

A dying declaration may be oral or written or made by


signs which could be testified to by a witness thereto

People vs. Odencio (1979)

If the antemortem statement was made orally, the


witness who heard it may testify thereto, without
necessarily reproducing the exact words as long as he
can give the substance thereof, and if the deceased had
an unsigned dying declaration, the same may be used as
a memorandum by the witness who took it down

May be attacked on the absence of any of the requisites


and may be impeached in the same manner as the
testimony of any other witness on the stand
American jurisprudence: dying declarations are on the
same footing as testimony of a witness on a stand and
whatever would disqualify the witness would also make
such declaration incompetent evidence

People vs. Molas (1993)

Facts: Bernardo Resonable went home after working in


his farm. There he found his son Abelardo (8) bleeding at
the doorway of their house. Bernardo carried Abelardo
inside the house. Abelardo informed his father that Josue
Molas was the person who not only inflicted his injuries
but also stabbed his sister Dulcesima and mother
Soledad. Molas and Dulcesima were sweethearts and
engaged to be married. While Bernardo looked for the
bodies of his wife and daughter, Abelardo was brought to
the hospital by his brother Nicholas. Abelardo died the
next day.

Issue: WON the statement of Abelardo is admissible

Held: Yes

Ratio: Abelardos statement was given to his father while


he lay at deaths door, bleeding from stab wounds, as a
result of which he died the next day.

It was indubitably a dying declaration. To be admissible,


a dying declaration must:

1. Concern the cause and surrounding circumstances of


the declarants death
2. That the time it was made, the declarant was under a
consciousness of impending death
3. That he was a competent witness
4. That his declaration was offered in evidence in a
criminal case for homicide, murder or parricide in which
the declarant is the victim
All these circumstances were present when Abelardo
made his declaration

People vs. Molo (1979)

Facts: Not long after the couple Venacio Gapisa and


Simeona Rapa-Gapisa had retired for the night, Simeona
heard and indistinct sound of murmur and gnashing
teeth. Venacio was asleep by then. Although seized by
fear, Simeona managed to peep through the dilapidated
buri wall and saw Dominador Molo attired only in short
pants, alone. She tried to awaken Venacio but he did not
respond. Molo had already climbed up the stairs and
barged into the house. When he found Venacio asleep
near the door, he immediately grabbed the latters left
wrist and started hacking the old man. Venacio woke up
and tried to fight back but he was unable to retaliate
because Molo started hacking him again. Simeona rushed
out of the house and called for help. Her son Alejandro
and Roman Mangaring ran towards the house and there
they found Venacio bleeding profusely. When Alejandro
took his father in his arms, Venacio told him that he was
boloed by Boslo, the name by which Molo was known in
their locality. Roman also asked Venacio who his assailant
was and the latter answered Boslo. Venacio was rushed
to the hospital where he died a few minutes after arrival.

Issue: WON the statements made by Venacio to


Alejandro and Roman are admissible

Held: Yes

Ratio: The statements of Venacio identifying Molo as his


assailant to Alejandro and Roman are dying declarations.
Considering the nature of the wounds, 8 in all, Venacio
must have the seriousness of his condition and that it can
therefore be inferred that he made the incrimination
under the consciousness of an impending death.
People v. Salison, G.R. No. L-115690, Feb. 20, 1996