I often see on such programs as Law and Order, etc a couple of cops gathered round a hospital bed, listening to and taking down the statement of a dying man. They then usually make a comment to the effect that the statement of a dying man has far more weight in court than other statements.
Is this true, and if so why should that be? I understand that it used to be believed that deathbed statements were particularly creditworthy because the person concerned was about to face his maker and thus would not be likely to heap more damnation on himself. But surely in the US, where religion is kept at arm’s-length from the organs of state, such a consideration could not apply in a court of justice?
From a secular standpoint perhaps it could be argued that people aren’t likely to tell lies in their last moments. Well, that’s probably true of many people, but certainly not of all. I suspect a significant proportion would remain as vindictive and untrustworthy at the point of death as they were in life.
In other words the same considerations would apply in weighing the credibility of such a statement as in any other, ie is the person that made the statement of good character and trustworthy.
Again, the right of the accused to confront their accuser is pretty basic in Anglo-American jurisprudence. What happens to that right in a deathbed statement? Couldn’t it be argued that such evidence should be inadmissible on those grounds?
Right, I’ve made a fool of myself for long enough, setting up straw men and knocking them down. It’s obvious I know nothing about the law, but I know my cop shows! Is this deathbed statement stuff cut from whole cloth or not?
As far as the Confrontation Clause of the 6th Amendment goes, the advisory committee notes go a little bit into that:
As far as the right to confront witnesses against you, the idea here is that the testimony can be examined as it is and neither side can develop it. The confrontation clause is also quite limited and not the catchall protection we think it is.
So if I die, and I finger you as the murderer on my deathbed, that will be accepted by the court, even though, under the normal rules of hearsay, an out of court statement made in order to prove the truth of the matter asserted is not admissible.
Thank you for that excellent answer, Happy Scrappy Hero Pup!
It is troubling, though, to think one could be convicted for murder on the sole testimony of someone who intensely dislikes you, say, or wants to get even with you. The real killer could well be a family member whom he’s happy to forgive, thus giving him the chance to stick one to you after his death.
The short and altogether unsatisfying answer is that we don’t think this will happen enough, and when it does happen, there will be enough extrinsic evidence that the case won’t live or die by your dying declaration.
However, if I am not mistaken, your view holds in India, where dying declarations are out because their social convention is that there’s no reason to tell the truth when dying.
It’s an imperfect system, dude. Screws fall out all the time.
That’s pretty much correct, as stated in the FRE advisory committee notes provided by the Happy Scrappy one. The dying declaration exception codified in the FRE comes from the English common law, and the original rule is centuries old. The rationale lies in the belief that a declaration made by a man who believes that he is about to die is more likely to be true than ordinary declarations, because no man would want to die with a lie on his lips.
This is assuming though isn’t it that the deathbed confession was made by someone in perfect command of their faculties? Wouldn’t a dying person often, maybe by the very definition of dying, be losing their ability to be lucid, to remember with great clarity, to understand the implications of everything they’re saying? I’m thinking I remember references to people near death speaking cryptically, since it may be an atypical collection of dying synapses firing that’s propelling their speech.
I’m assuming that renders such statements in the “admissable but not proof” category again?
Even aside from what might or might not happen in the next life, dying removes the constraints of this life. A person might, for instance, refrain from fingering someone for fear of retribution. But if you’re dying anyway, that might not matter, so you can afford to be candid.
Does this hold for letters and such written by someone who’s going off on some venture from which they do not expect to return? And do not return, obviously.
Now you’re thinking like a defense attorney. If, say, the person was dying because of massive blunt force head trauma, you could argue that even if the statement were admissable the declarant was in no position to make sense of the situation.
Probably not. The exception applies when the speaker believes that death is imminent, and the statement is about what caused that death. A expectation that someone expects to die from something at some point in the future is probably too remote.
First off, the statements do NOT per se have “far more weight” than other statements. The statements of the dying person as to the identity of his killer or cause of his death are hearsay (assuming the statements are made out of court and are being offered in court for the truth of the matter being asserted) that are nonetheless admissible by virute of a hearsay exception (there are on the order of 30 such exceptions, including the “catch-all”). The statements are admissible evidence. Any weight the statements might have will be determined by context.
Second, the above analysis is done under the Federal Rules of Evidence. Hearsay is not defined the same state to state. It’s possible (and even likely) that each state has a “dying declaration” exception (I haven’t looked), but they are not all “exactly” the exceptions conatined in the Federal Rules of Evidence.
Right, the statement only fits the “dying declaration” exception if it goes to what the declarent believes to be the cause of the death.
If a cop wants to testify that old man Brown said on his deathbed that he saw his wife lift money from the corner store registe on Novemebr 20, 2004, that testimony doesn’t come in under the dying declaration exception to prove that the wife liftyed the money, though it might come in to prove the man’s incapacity if the wife died in 1984.
I doubt a fear of retribution would hold up to a jury. All one has to do is point out people like the kid at Virginia Tech that in his death saw an opportunity to take dozens with him. He had no fear of retribution, so why should anyone else. See how EASY it would be to refute a deathbed confession.
And then let’s consider the mounds and mounds of other evidence we now have about the ability to plant memories in people’s minds and how easily it’s done.
I’m not sure it would persuade an “average” jury with Americans who are typically uneducated but it shouldn’t be hard for someone mildly intelligent.
I think the idea is more like someone leaving a note “I’m going to go confront Guido about that money he owes me. If I don’t come back, it means he probably killed me”. In a statement like that, the author is expecting at least the possibility of imminent death, and his statement is about the cause of that death.
Interesting question, but I think the result would still be the same. There’s a distinction between the possibility of imminent death and imminent death. In a dying declaration, the declarent believes imminent death is a certainty, and believes he knows the cause. In the hypo the declarant believes imminent death is a possibility, and suspects what the cause might be. He may think he’s going to die, but he’s not dying.
This note can be used to prove that you were going to see Guido.
Depending on the judge, it might be admissible to prove that Guido met YOU, regardless of Guido’s intent (see US v. Pheaster), depending on how the judge feels about “confront;” the word “meet” might make the letter more easily admissible.
I still don’t think you’d get it in as a dying declaration, though- “imminent” is a pretty big word, and if I were counsel for Guido, I’d argue that you had no idea when writing it that you ever thought you’d meet Guido; alternatively, if you did meet Guido, there’s no way for you to divine his state of mind or motive to kill you.
On edit, Chronos’s explanation regarding imminence is a bit clearer than mine.
I used to work with a cop who filed our traffic reports.
When the AP reported that a pair of police detectives were visiting the porn star John Holmes, Harry said “He’s about to die.”
I asked him where his inside info came from. He pointed out the two detectives who were calling on Holmes. He said the reason they’d be dispatched would be to record a dying statement. In this case they’d be looking for any kind of explaination or clue about the Wonderland murders.
In this instance they weren’t really looking to find a bad guy. They were looking for some kind of back-story and reasons why the murders happened.
BTW, Harry was right, Holmes died of complications from AIDS that night, but didn’t have anything to say to the detectives.
If, say, the person was dying because of massive blunt force head trauma, you could argue that even if the statement were admissable the declarant was in no position to make sense of the situation.