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Dying Declaration: People are Dying to Tell

Dying Declaration: When A Person's Dying Words are Admissible in Trial

Letter D

Hearsay evidence is based on what others have said to the witness who is testifying, or what the witness overheard someone else say. Can you see why, admitting such evidence at trial would be problematic?

Hearsay evidence is inadmissible. As with just about every rule of law, there are exceptions. In fact, hearsay is an island, surrounded by a sea of exception. One of those exceptions is the dying declaration.   A dying declaration is when a person identifies their killer, while under the belief that their death is imminent.

The reasoning is that a person is more likely to be truthful when they think they are about to die- about to meet their maker.

Makes sense, right? But, what about the people who have no religious beliefs? Or, what if the person truly believes he is telling the truth and he identifies Cameron Potter as his killer, but the person dying has lost so much blood and is in shock and he is mistaken about the identity of his killer? It can happen.

A person accused of a crime has a constitutional right to confront his accusers. Well, that flies out the window, when the person who accused the defendant is dead, hence, unavailable to testify at trial. What about the rights of the accused? The problem with the dying declaration exception to the hearsay rule is the inability of the jury to access the credibility of the person who made the statement. The declarant is not called to the stand. He or she is not subjected to rigorous cross examination by the defense attorney. His ability to perceive and recall the events are not questioned. The jury does not have the opportunity to view this person as he testifies. They are stripped of the ability to judge for themselves whether or not this person appears to be a truthful and credible witness.

Anyone can make up a story. I can tell my parents that my brother told me that he stole their car and wrecked it twenty-five years ago.  Should my brother be punished because of what I said he told me that he did?

Here's another kicker. Whether or not the declarant actual dies is immaterial. Whether or not his death is truly imminent, is immaterial, as well. All that matters, is whether the person who made the statement (accusation) subjectively believed that he/she was dying. What's to prevent a person from lying and accusing someone of a crime and then lying again and saying that they truly believed that they were dying?

The rule is this: A statement made by a person, who is conscious and competent and subjectively believes that he is dying, that death is imminent, concerning what he or she believes to be the cause or circumstance of the injury that they believe will lead to their death, can be introduced at trial, against the accused.  The dying declaration is considered credible and trustworthy evidence based on the belief that a reasonable, normal person who believes he or she is about to die--will not lie. (say what?)

What are your thoughts on this exception to the hearsay rule. You might think twice about it if you read  this cold case. Former cop, Jack McCullugh, was convicted for murdering a seven year old, Maria Ridulph, fifty-five years after the killing. This case was not solved by D.NA.,or any other forensic evidence. The accused's mother made a death-bead confession, fifty-five years after the fact. She stated that her son committed the murder and he told her that he did it. She lied to police fifty-five years ago. The woman said she knew what her son did and did not want to die with it on her conscious. 

Now, I'm all for a sicko-pervert getting what's coming to him, but, based solely on what his mother said on her death bead. She is an admitted liar. She lied to police for fifty-five years. Without the ability to cross-examine her and judge her credibility on the witness stand, how can we be certain she was not lying when she made the death-bed confession. What if her son pissed her off and she did it to get even, revenge or for whatever reason. It probably didn't happen that way, but absent corroborating evidence, a death-bed statement made fifty-five years after the fact, in my opinion, is questionable at best and is not sufficient to convict a man of murder.

Congratulations to Tangent Shell and Melissa Bradley, both are winners of a $25 Amazon Gift Card, for playing along and winning my crime games/quizzes that I am offering twice weekly during the A to Z challenge.

Don't forget to check out the other 2013 A to Z Participants..

My A to Z Bonus Bucket List- Letter "D"

Learn to Draw
Go to the Kentucky Derby
Donate a million dollars


Melissa Sugar said...

That's a lot to think about, and I suppose it would depend on the individual situation.

Melissa Sugar said...

Makes sense - if the person dies, you can't ask any more questions or get more facts.

Melissa Sugar said...

Another thought- I worked at hospice for years and lets just say that dying people aren't that lucid. Sometimes they talk to dead people, sometimes they just utter nonsensical stuff. It doesn't make sense that you'd automatically believe someone who may or may not be hallucinating

Melissa Sugar said...

What I understand even less are the people who confess on their death-bed to something they did, and then don't die. I believe in God, but I still think my last thought would be 'yes, I got away with it'. Please tell me I'm not the only one!

Melissa Sugar said...

I'm still laughing at Annalisa's comment. It's tv and movies that makes us think dying people can make a lucid speech when they've just been shot in the neck. I wonder how often it happens in real life. Great post!

Melissa Sugar said...

That's a lot to think about. I do wonder how many people these days confess something as they're dying.

Melissa Sugar said...

Melissa, this is such a great theme for your A to Z. I already follow, and will be reading closely as the month goes past.

I always think, thanks to television, that people die instantly when mortally wounded. They all seem to collapse immediately, not saying much. Here in Australia there's a new crime drama show based on forensic cleaners - on that show, the victim always dies really really slowly, walking across miles (but never encountering somebody to talk to), trailing blood, so that the cleaners have an excuse to be on the elongated crime scene for a long time (and thus investigate, never mind the police).

Melissa Sugar said...

Interesting information. I often wonder if some of the stuff you see on TV or in books would hold up in a real world court.

Melissa Sugar said...

Great theme and a very interesting post. I'll be keeping some of this in mind for the murder/mystery story I've been working on.

Looking forward to more!

Melissa Sugar said...

I have to say the "dying declaration" has always been a tough one for me outside the bounds of a movie or TV show where you kind of know a bunch of other stuff. I think what most people would believe is varied depending on whether the declaration is working for or against you. I guess unless they mention something that only the killer would know any definite reaction to it would be concerning.

Melissa Sugar said...

Hmmmm, I can see why deathbead confessions could be useful, but I have to agree that I'm skeptical about them always being credible. I would think that most people would tell the truth, but there's always the if factor.

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