Consentia on Multidisciplinary Research

Dying Declaration: Tryst between Honesty and Death

As a general rule of law, hearsay evidence[1] isn’t admissible as evidence sue to its unreliable nature. There are few exceptions to the rule, one of them being that of dying declarations.  In India, the rule is contained in sub-section (1) of section 32 of the India Evidence Act, 1872. Though it doesn’t expressly state ‘dying declaration’, it is generally called so.[2] Simply put, it is a statement by a person under the expectation of death about the cause of his death.

 Justice Eyre observed “[T]he general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; the situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”[3]

The origin of the rule can be traced back to the 12th century medieval England when Christianity a major force in society.[4] The maxim was propounded: nemo moriturus praesumitur mentire, i.e., a man will not meet his maker with a lie  in his mouth. It is said that Saint Peter shoos away liars from the gates of heaven, perhaps strengthening our conviction that a dying person just wouldn’t fib. In R v. Osman[5], it was held that the exception‘s trustworthiness requirement was satisfied because no person “who is immediately going into the presence of his Maker will do so with a lie upon his lips”.

In India

Sub-section (1) of section 32 states that the statement of a person who is dead is relevant when it relates to the cause of the death or circumstances of the transactions which resulted in his death, in cases in which the cause of that person’s death comes into question.

The essential ingredients are

  • The maker of the statement must be dead
  • The statement should relate to the cause of death or the circumstances of the transaction which resulted in the death
  • The statement may or may not be made in the expectation of death.
  • Proximity between death and the statement

Other Common Law Countries:

Australia

The Federal Evidence Act, 1995, Part 3.2 deals with hearsay evidence, but is silent upon dying declaration and only excludes hearsay evidence. 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”.

Canada

In Schwartzenhauer v. The King,[6] it was held that:

“Dying declarations are competent only in homicidal cases, and then only in so far as the statements therein could have been given in evidence by the deceased had she lived.”

Pakistan

Section 46(1) of Qanun-e-Shahadat Order,1984 (which repealed Evidence Act, 1872) is same as S.32(1) of Indian Evidence Act, 1872. Though it was held in various judgments that “great caution is to be taken before placing reliance on a dying declaration because it is a weak piece of evidence as its maker is not subjected to cross-examination”. Essential conditions are:

To admit dying declaration in evidence, the following necessary conditions must be proved:

  • When statement made by a person as to the cause of his death or to any of the circumstances of the transaction which resulted in his death.
  • When statement made by a person in cases in which the cause of that person’s death comes into question and not of another person.
  • Statement made by a person must be competent to testify as a witness under article 3 of qanoon-e-shahadat order
  • A dying declaration is only admissible in evidence when it is proved that the death of the declarant was caused or accelerated by the wounds inflicted by the accused.
  • Before a statement is admitted as dying declaration, it must be proved that the person who made he is dead.
  • Dying declaration must be complete.

United Kingdom

In Common Law, a dying declaration was admissible at a trial for the murder or manslaughter of the declarant as an exception to the rule against hearsay evidence, provided that he would have been a competant witness had he survived.

Expectation of death was necessary as evident from the expression “every hope of this world gone”[7]; another “settled hopeless expectation of death”[8]; another “any hope of recovery, however slight, renders the evidence of such declarations inadmissible.”[9] The result of these decisions is that there must be an unqualified belief in the nearness of death, every hope of this world must be gone.[10]

In civil cases the hearsay rule was abolished by the Civil Evidence Act of 1995. In criminal cases, although the hearsay rule remains, it has been modified by the Criminal Justice Act 2003. Sub-section (2) of Section 118 provides that with the exception of the preserved common law rules, all other common law rules of admissibility are abrogated. The Criminal Justice Act did away with the common law hearsay exception of dying declarations. Now hearsay evidence is allowed when parties allow it or when court is satisfied in the interest of justice.[11]

United States

Rule 804 of Federal Rules of Evidence, 1973 makes the ‘Dying Declaration’ an exception to the Rule against Hearsay Evidence. Rule 802  reads as:

“Hearsay is not admissible unless any of the following provides otherwise:

  • a federal statute;
  • these rules; or
  • other rules prescribed by the Supreme Court.”

Rule 804(b)(2) gives exceptions to the rule against hearsay. It reads as:

“(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.” The essentials are:

  • Unavailability of the declarant[under Rule 804(a)];
  • The declarant’s statement is being offered in a criminal prosecution for homicide, or in a civil action;
  • The declarant’s statement was made while under the belief that his death was imminent; and
  • The declarant’s statement must relate to the cause or circumstances of what he believed to be his impending death.

The declarant does not actually have to die for the statement to be admissible, but there must be a genuine belief that death was imminent and the declarant must be unavailable to testify in court. If the stipulations cannot be met, it would then constitute hearsay and not fall into the exception.

Garza v. Delta Tau Delta Fraternity National[12] illustrates the limits of the rule, even as extended. In Garza the Supreme Court of Louisiana held that a suicide note did not fall within the statement under belief of impending death exception.

The future of the exceptions is doubtful after the confrontation clause cases.[13]

Analysis

Dying declarations haven’t attracted much attention of jurists. The exception to heasay has many pernicious affect. I will deal with them under three different heads:

Knowledge of Impending Death

In India, there is no need for “settled hopeless expectation of death” i.e- the maker of the statement need not be aware about his impending death. In most countries it is essential that the maker should be apprehending death at the time of making the statement.

In Pakala Narayan Swami v. Emperor,[14] the statement which was admitted as dying declaration was made 3 days ago without any impending sense of death.[15] Most other countries keep the impending sense of death as an absolute pre-comdition. In India, it isn’t necessary that the person be under a impending sense of death.

Whatever the reasons behind keeping such a distinction may be, it is violative of the basic principle upon which the rule is founded. A person cannot be expected to be overcome by some supernatural force to speak the truth, without any impending sense of death.

It tentamounts to presuming that a person speaks the truth for some time before his death. The time may be a day or two or even few months.

It amounts to stretching the rule to such extents as not even perceivable in medievial England where the maxim originated.

Scope

In India, the rule is applicable in both civil as well as criminal cases. I most countries dying declarations are admissible only in cases where the proceedings relate to murder or manslaughter of the maker.

Dying Declarations deny the accused the right to cross-examin the maker of the statement. To balance this, such statements are only admissible in manslaughter and murder cases in most countries, as in such crimes there rarely are any other witnesses to the crime and holding dying declarations non-admissible may lead to grave miscarriage of justice. The right of the accused is also affected when he is unable to cross-examin the maker of the statement. The purpose of cross-examination is frustrated i.e., to test the veracity of the statement.

The present rule gives no weight to the right of the accused which is affected. Generally in case of comepting values, a balance must be struck.

A dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. Such a necessity does not prevail in all varieties of proceedings. It is better to limit the scope of such declarations to few classes of cases as done by other countries.

Relation between Death and Honesty

Dying Declarations have been criticized as being as archaic as the medieval English courts where the principle of Nemo moriturus praesumitur mentiri—a dying person is not presumed to lie—originated. During the 12th-century reign of Richard the Lionhearted, when Christianity infused daily life, courts may have been justified in assuming that murder victims would be afraid to risk God’s wrath by uttering false last words. The maxim was introduced in India by the British.

Even at their inception, the tenacity of an idea having Christian orgins in a country predominatly non-christian is questionable. But I am not going to go into its veracity at its introduction. It is more relevant to check it in present time.

In UK (prior to Criminal Justice Act, 2003), dying declarations were admitted in only those cases where there is a hopeless expectation of death. Where the mind is induced by the most powerful considerations to speak the truth; the situation so solemn and so awful, that the maker is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.

In a secularized World, as Charles W. Quick noted in a classic article on dying declarations, “Anger, wish for revenge, and plain ‘cussedness’ persists in many individuals until their last breath…. The desire to justify one’s own actions, to have the approbation of one’s friends, moreover, may lead to conscious or unconscious falsification even in extremis.”[16]

There have been instances when the courts have shouwn their frustration when dying declarations have been held to be unreliable.[17] [18]

Thus the law of dying declarations is based on the view that the imminence of death is a substitute for the oath. In the early 21st century, this religious foundation may have lost some of its influence. The premise that psychological pressure might keep a declarant from lying is also debatable.

Conclusion

The position of dying declarations in India, hasn’t been given enough attention by jurist and the Parliament alike. The extent of application in India is very wide. It extends the to rule to such extents as not even conceivable in Medieval England where the doctrine originated.

Other common law nations have limited the scope to certain variety of cases like manslaughter and some have even dispensed with exception. It is better to dispense with the exception and allow exception to hearsay in the interest of justice.

There is a need to reform the law relating to the subject, but unfortunately until the topic grasps the attention of jurists in India, it is not possible anytime soon.

[1] Hearsay evidence is an out-of-court statement introduced to prove the truth of the matter asserted therein.

[2] Ravi Kumar v. State of Tamil Nadu, (2006) 9 SCC 240 (243)

[3] R. v. Woodcock, (1789) 1 Leach 500

[4] Brendan I. Koerner, Last Words, Legal Affairs (November/December 2002), available at http://www.legalaffairs.org/issues/November-December-2002/review_koerner_novdec2002.msp

[5] (1881) 15 Cox CC 1

[6] [1935] S.C.R. 367

[7] Supra n. 3 at p. 502

[8] Justice Willes, Reg. v. Peel, 2 F. and F. at p.22

[9] Chief Justice Tindal, Rex v. Hayward, 6 C. and P. at p.160

[10] R. v. Jenkins 1869 L.R. 1 C.C.R. 178

[11] Under S. 104

[12] So. 2d 1019

[13] Justice Ginsberg, Michigan v. Bryant, 562 U.S. ___(Docket No. 09-150)

[14] AIR 1939 PC 47, (1939) 9 AWR (PC) 35

[15] See Sharad Birdhichand Sharda v. State of Maharashtra, AIR 1984 SC 1622

[16] Charles W. Quick, Some Reflections on Dying Declarations, 6 Howard L.J. 109 (1960)

[17] A Subramani, Dying declaration unreliable, HC sets murder convict free, Times of India (May 14, 2014)

[18] See Sheikh Mehboob v. State of Maharastra, AIR 2005 SC 1595; J. Ramulu v. State of Andhra Pradesh, AIR 2008 SC 1505

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