The dying declaration: can it be admissible as evidence in court?

by The FindLaw Team

This writer is an unavowed fan of television shows or movies that have a major criminal component to the storyline. If you are, an avid consumer of movies or television with a criminal element, you would have also probably witnessed one of those scenes where a person has been gunned down, and with their last breath, reveals the name of the brutal killer that has ended their life. Since the interest of FindLaw lies with the real world application of law, the question has to be asked: is a dying declaration admissible? Read on to find out.

The rule in regards to dying declarations

So let’s begin with the stereotypical hypothetical situation: the victim has just been shot and it is you who comes in to comfort the person, and with their dying breath, they utter the name of the alleged perpetrator.

What happens, next?

Well, this scenario is rather unique because potentially, the only witness to the crime has just passed away (the person that has just been shot) yet, they have given evidence to you as to the identity of the alleged shooter: so where is the problem? Outwardly, there may appear to be no issues in regards to the situation, however, evidence that is given outside of court, generally won’t be considered as evidence of truth, or in other words, this type of evidence is seen as hearsay.

However, there are exceptions to the rule of hearsay, and you guessed it – the dying declaration is one of them. 

The conditions in which a dying declaration will be admissible

Although, the dying declaration can be considered as admissible evidence, there are certain conditions that must be met before the declaration can be tendered in court.

Owen J, in R v Golightly had to deal with the question of the admissibility of a dying declaration, and his Honour set out the following obligations that need to be met for a dying declaration to be considered as evidence in a trial:

• the person must be dead
• the trial must be for the person’s murder or manslaughter
• the statement must relate to the cause of death
• the person must be considered as a competent witness
• the declaration must be made “under a settled hopelessness of death”.

The heart of allowing the dying declaration to be admissible, really boils down to the questions of the competence of the witness before the death, and the surrounding facts of the case in order for the courts to make their decision.

Oh, and of course the person making the declaration must also be dead. That’s perhaps the most important part of the rule.

 



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