When a violent crime is committed by one or more persons against another, the case can be complicated and difficult to prove without any eye witnesses to establish what occurred. Sometimes law enforcement arrives on the scene while a victim is still alive yet not expected to survive. If the victim is conscious and able to communicate with police officers it is imperative law enforcement officers obtain a dying declaration. A dying declaration is essentially the person’s last words and may be the only chance police have to hear what the victim can tell them about the crime.
Obtaining a Dying Declaration
Often a dying declaration transpires in the moments before the ambulance arrives to provide medical care and transport the person to the nearest hospital. When obtaining what one believes to be an end of life statement from the victim, the officer should record or video the actual statement whenever possible. Recording a victim’s dying statement allows for accuracy in translation and provides a record for reference. The questions police ask may determine the focus of the investigation, and this is done by establishing the basic facts. Who did this to you? What happened? How did this happen?
If police determine a crime transpired, and the perpetrator is caught and put on trial for murder, the dying declaration is admissible as evidence. There are few things more powerful than the victim’s voice describing what happened at the scene of the crime. A dying declaration is an eye witness account of the event. A dying declaration is not considered hearsay. Hearsay is defined by the United States Courts as “evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else.” Hearsay is rarely admissible as evidence.
The Federal Rules of Evidence
One reason a declaration made prior to death is admissible as evidence is due to the well-defined legal maxim known as nemo moriturus praesumitur mentire. Nemo moriturus praesumitur mentire is the belief that a person who is cognizant of their looming death will not tell a lie for fear of the eternal consequences after dying. Although, the dying statement of a murder victim is usually allowed as evidence in a criminal court case, the same statement is almost never allowed in civil court cases or wrongful death cases. There are federal rules of evidence which determines what is and is not admissible as evidence in the criminal and civil court cases.
The federal rules of evidence allow a victim’s dying declaration as evidence at trial if it is determined the dying person was of sound mind when he or she made the statement. Often the defense will present an expert witness in the medical field, such as a physician who will testify he or she believes the deceased was not of sound mind in an attempt to have the dying declaration dismissed. However, to counteract the testimony of the expert witness the prosecuting attorney will call to the stand the law enforcement and EMS personnel who were at the scene that heard the dying declaration. Those who actually interacted with the victim at the scene are often considered the more reliable source in determining if the person was of sound mind.
Sources:
- United States Courts “Federal Rules of Criminal Procedure” (accessed March 24, 2011).
- Cornell University Law School “Federal Rules of Evidence (2010)” (accessed March 24, 2011).
Erika Lyn Smith - Erika Lyn Smith - is a Psych RN, who has completed the UMSL Medicolegal Death Investigator Training Course, and is finishing a BS in ...
