A Critical Examination of Dying Declarations in Criminal Cases.

A Critical Examination of Dying Declarations in Criminal Cases

I. Introduction: The Enduring Legal Paradox of Dying Declarations

Dying declarations represent a unique and often contentious category of evidence within criminal jurisprudence. Fundamentally, a dying declaration is an out-of-court statement made by a declarant who is unable to testify in court, typically due to their death. The statement must be made under a belief of certain or impending death and must directly relate to the cause or circumstances of that perceived imminent demise.¹

This form of evidence stands as a crucial exception to the general rule against hearsay. Hearsay, which comprises out-of-court statements offered to prove the truth of the matter asserted, is ordinarily inadmissible to prevent reliance on second-hand information and to uphold the fundamental right to cross-examination.¹ In the United States, this exception is formally codified under Section 804(b)(2) of the Federal Rules of Evidence.¹ Notably, the scope of its admissibility varies significantly across jurisdictions, being applicable in both civil and criminal cases in the US and India, a broader application compared to its historical limitation primarily to homicide cases in the United Kingdom.¹

Historical Foundations and the "Nemo Moriturus" Maxim

The conceptual roots of dying declarations are deeply embedded in medieval English common law. An early documented instance of its admission as evidence can be traced back to the 1202 case of Geoffrey v Goddard.² The underlying rationale for its admissibility is encapsulated in the Latin maxim, "Nemo moriturus praesumitur mentiri"—meaning, "no-one on the point of death should be presumed to be lying".² This principle posits that an individual facing imminent death, and genuinely believing it to be so, would possess a diminished incentive to fabricate testimony. The solemnity of their final moments, often coupled with a belief in divine judgment, was thought to compel truthfulness, thereby lending a perceived inherent reliability to their last words.²

The Fundamental Tension: Necessity vs. Reliability in Criminal Justice

The admissibility of dying declarations is frequently justified by the principle of necessity. This is particularly salient in homicide cases where the victim may have been the sole eyewitness to the crime. In such scenarios, excluding their statement could lead to a complete failure of justice, as there might be no other direct evidence to identify the perpetrator.¹⁰

However, this compelling necessity is invariably balanced against significant concerns regarding the inherent reliability of such statements. Critics, dating back to the nineteenth century, have consistently questioned their credibility.² One prominent scholar has even derisively referred to it as "the laughing stock of hearsay exceptions".⁹ The judicial process, therefore, involves a delicate and often challenging balancing act: weighing the probative value of a dying declaration against its potential prejudicial impact on the accused.³

The historical foundation for accepting dying declarations is deeply rooted in a presumption of truthfulness tied to religious and moral beliefs. The maxim "Nemo moriturus praesumitur mentiri" suggests that a person on the brink of death, fearing divine judgment, would be compelled to speak truthfully.² This perspective essentially elevates a dying declaration to a status akin to sworn testimony. However, contemporary legal scholarship and judicial practice, particularly in increasingly secular societies, approach this religious justification with considerable skepticism.² This creates a fundamental tension: the legal system continues to admit this evidence based on an ancient, arguably outdated, philosophical premise, while simultaneously acknowledging its inherent unreliability. This unreliability stems from factors such as the declarant's compromised physical and mental state, the potential for leading questions, and, most critically, the absence of cross-examination.² This inherent conflict between historical justification and modern evidentiary standards means that while the dying declaration exception persists due to historical precedent and perceived practical necessity ¹⁰, its probative value is under constant and rigorous scrutiny. The legal system is thus engaged in a complex and ongoing effort to reconcile a traditional legal fiction with contemporary demands for robust and verifiable evidence.

II. Admissibility Frameworks: A Comparative Jurisprudence

The conditions under which a dying declaration is deemed admissible vary across common law jurisdictions, reflecting different legal philosophies and priorities. Despite these variations, several core requirements are generally consistent.

Core Conditions for Admissibility

Across common law systems, the admissibility of dying declarations typically hinges on the fulfillment of several key conditions:

Declarant Unavailability: The individual who made the statement must be unavailable to testify in court. This most commonly means the declarant has died, but in some frameworks, it can encompass other forms of unavailability as defined by rules of evidence.¹
Belief in Imminent Death: The declarant must have made the statement under a genuine and settled belief that their death was certain or impending.¹ While the declarant usually dies, some frameworks, like the US Federal Rules of Evidence, do not strictly require actual death for admissibility, only unavailability.²
Relation to Cause/Circumstances of Death: The content of the statement must directly pertain to what the declarant believed to be the cause or circumstances of their impending death.¹
Declarant's Actual Knowledge/Competency: The declaration must be based on the declarant's actual, first-hand knowledge of the events described. Furthermore, the declarant must have been mentally competent and in a fit state of mind to make the statement at the time it was uttered.¹
Voluntariness: The statement should be made freely and voluntarily, without any form of duress, tutelage, or undue influence from others.⁴
Clarity and Specificity: The declaration itself should be clear, coherent, and sufficiently unambiguous to be reliably understood and utilized in court proceedings.⁴

United States Law: Federal Rules of Evidence and State Variations

Under the Federal Rules of Evidence (FRE), specifically Rule 804(b)(2), a dying declaration is admissible in a criminal prosecution for homicide or in a civil action.¹ The proponent of the statement must establish that the declarant is unavailable (as per FRE 804(a)(4)), that the statement was made while under a genuine belief of imminent death, and that it relates to the cause or circumstances of that perceived impending death.² While the declarant typically dies, the FRE does not strictly mandate death for admissibility, only unavailability.² Some states have broadened the admissibility of dying declarations to encompass other types of cases beyond homicide.² In US courts, judges are responsible for determining the admissibility of the declaration, while the jury is tasked with assessing its weight and overall credibility.¹⁹

Notable US cases illustrate the application and interpretation of this exception. The Boston Massacre trial in 1770 serves as an early American example where a victim's dying statement, indicating provocation, played a role in the defense's argument.²

Shepard v. United States (1933) strictly construed the requirement of a "settled, hopeless expectation of death," emphasizing the necessity for the declarant to have abandoned all hope of recovery.¹⁵ Conversely, in

Carver v. United States (1897), the Supreme Court held that statements made by the deceased that contradicted her dying declaration were admissible for impeachment purposes, underscoring that dying declarations do not inherently possess "absolute verity".²⁰

United Kingdom Law: Evolution from Common Law to Statutory Provisions (Criminal Justice Act 2003)

Historically, under English common law, dying declarations were admissible only in trials for the murder or manslaughter of the declarant. A stringent requirement was that the declarant must have had a "settled hopeless expectation of death".²

The legal landscape in the UK underwent a significant transformation with the enactment of the Criminal Justice Act 2003 (CJA 2003). This Act largely abolished common law hearsay exceptions, including the specific dying declaration exception. Dying declarations are now admissible under statutory "unavailability" exceptions (sections 114 & 116), but this is subject to the court's judicial discretion (section 126) to exclude evidence deemed unreliable.² Despite this statutory shift, the death of the deceased must still be the subject of the charge for the declaration to be admissible.¹⁰

Indian Law: Broader Scope and Unique Interpretations (Indian Evidence Act, Section 32(1))

In India, Section 32(1) of the Indian Evidence Act governs the admissibility of dying declarations. It stipulates that statements are relevant if they concern the cause of the declarant's death or the circumstances of the transaction that resulted in their death, in cases where the cause of death is in question.⁴

A key distinction from English law lies in the Indian approach to the declarant's state of mind: the statement remains relevant "whether the person who made them was or was not, at the time when they were made, under expectation of death".⁵ This significantly broadens the scope of what qualifies as a dying declaration. Furthermore, in India, these declarations are admissible in all civil and criminal proceedings where the cause of death is in question, not just homicide cases.⁵ Indian law also holds that there is no absolute rule of law, nor a rule of prudence, that mandates corroboration for a dying declaration to form the sole basis of a conviction, provided it is found credible, voluntary, and consistent.¹⁰ Recent Supreme Court judgments, such as

Suresh @ Hanumant v. State (Govt. of NCT Delhi) (2025), have reaffirmed this principle, even allowing conviction based primarily on a dying declaration despite inconclusive forensic evidence.²³

Landmark Indian cases provide further clarity. Laxman v. State of Maharashtra (2002) reiterated that oral declarations are admissible and that there is no requirement for a dying declaration to be in writing or made in the presence of a magistrate.⁴

K. Ramaswamy v. State of Tamil Nadu (1976) held that a dying declaration could be accepted even if not made in the presence of a magistrate, emphasizing the belief of imminent death as a crucial criterion.⁴

Nisar Ali v. State of Uttar Pradesh (1981) emphasized the need for the statement to relate directly to the cause of death and for its credibility to be assessed based on the declarant's mental state and surrounding circumstances, with corroboration being desirable where possible.⁴

The core condition for admitting a dying declaration, the "belief in imminent death," is interpreted with varying degrees of strictness across these jurisdictions. In English common law, the requirement was a "settled hopeless expectation of death" ², indicating a very high threshold for the declarant's state of mind. US Federal Rules of Evidence require a "genuine belief that their death was imminent" ², but notably, the declarant does not actually have to die for the statement to be admissible, only be unavailable.² Indian law, under Section 32(1) of the Indian Evidence Act, takes the most expansive view, stating that the declaration is relevant "regardless of whether this person was anticipating death or not".⁵ This broad approach significantly expands the scope of what qualifies as a dying declaration, as it removes the traditional "deathbed solemnity" as a strict prerequisite for admissibility. This divergence suggests a fundamental disagreement among legal systems regarding the primary source of a dying declaration's perceived reliability. If the reliability is primarily derived from the "fear of meeting one's maker" or the solemnity of impending death, then a strict "imminent death" belief is crucial. However, if the admissibility is driven more by the "necessity" principle (victim as sole witness) and the "circumstances of the transaction which led to death," as is more prominent in the Indian context, then the imminence of death becomes less critical. India's broader approach, while pragmatic for securing justice in cases where the victim is the only witness, arguably dilutes the traditional reliability rationale and potentially increases the risk of admitting statements that lack the solemnity and presumed truthfulness of a true "dying" declaration. This also directly impacts the types of cases in which dying declarations are used, with India having the broadest application (civil and criminal, not just homicide).¹⁰

Table: Comparative Admissibility Requirements (US, UK, India)

Jurisdictional Aspect	United States (FRE 804(b)(2))	United Kingdom (Criminal Justice Act 2003)	India (Indian Evidence Act Section 32(1))
Governing Law/Rule	FRE 804(b)(2)	Criminal Justice Act 2003	Indian Evidence Act Section 32(1)
Declarant's belief in impending death	Genuine belief of imminent death	Historically "settled hopeless expectation of death," now part of general unavailability	Not strictly required for relevance, though often present
Declarant's death	Declarant must be unavailable, not necessarily dead (but typically is)	Declarant must be dead	Declarant must be dead
Scope of Application	Criminal homicide & Civil actions	Criminal proceedings for homicide/manslaughter (under unavailability exception)	All civil and criminal proceedings where cause of death is in question
Relation to cause/circumstances of death	Yes	Yes, must be subject of charge	Yes
Corroboration	Judicial prudence, not legally mandated	Judicial prudence, often needed for weight	Not legally mandated, but increases credibility; can be sole basis for conviction
Admissibility as sole basis for conviction	Generally not, strong judicial caution	Generally not, high scrutiny	Yes, if found credible and voluntary

This comparative table highlights the key legal distinctions across these three prominent common law jurisdictions. It distills complex legal provisions into easily digestible categories, allowing for quick comprehension of the varying approaches. By explicitly showcasing the significant differences in interpretation and application, such as the varying strictness regarding the "belief in impending death" and the scope of application (homicide-only vs. broader civil/criminal cases), it provides a solid foundation for deeper critical analysis. For instance, the fact that India allows conviction based solely on a dying declaration (a significant divergence) becomes more impactful when contrasted with the more cautious approaches in the US and UK. This comparison enables a more profound discussion on the implications for due process and the overall administration of justice.

III. Evidentiary Weight and Judicial Scrutiny in Criminal Trials

The evidentiary weight accorded to a dying declaration and the level of judicial scrutiny it receives are critical aspects that vary significantly across legal systems, particularly in the context of criminal trials.

The Debate: Can a Dying Declaration Alone Sustain a Conviction?

In India, jurisprudence explicitly permits a dying declaration to form the sole basis of a conviction, provided that the court finds it to be credible, voluntary, and consistent.¹⁰ This approach was recently reaffirmed by the Supreme Court of India in

Suresh @ Hanumant v. State (Govt. of NCT Delhi) (2025), a pivotal case where a credible dying declaration was prioritized even over inconclusive ballistic evidence.²³ This stance underscores the high intrinsic reliability Indian courts may attribute to such statements under strict scrutiny.

In contrast, courts in the United States and the United Kingdom generally treat dying declarations with considerably more caution. While admissible, they are typically not regarded as carrying the same weight or value as live testimony, primarily due to the inherent absence of cross-examination.² For example, New York courts explicitly state that a dying declaration "is not regarded as of the same value and weight as the evidence of a witness given in a court".¹²

The Role of Corroboration: Legal Mandate vs. Judicial Prudence

The requirement for corroboration of a dying declaration also differs. In India, corroborating evidence is not a legal prerequisite for either the admissibility of a dying declaration or for a conviction based solely upon it. However, the presence of corroborating evidence significantly enhances the declaration's credibility and evidentiary weight.⁴ Indian courts are nevertheless expected to scrutinize such declarations with extreme care.²¹

Conversely, in the US and UK, there is a strong judicial preference for corroboration, especially given the acknowledged inherent unreliability of such statements.² Courts in these jurisdictions are mandated to weigh the probative value of a dying declaration against its potential prejudicial impact, often leading to a more cautious approach when corroboration is absent.³

Illustrative Landmark Cases from Different Jurisdictions

India:

Laxman v. State of Maharashtra (2002): This case reiterated that oral declarations are admissible and that there is no requirement for a dying declaration to be in writing or made in the presence of a magistrate.⁴
Suresh @ Hanumant v. State (Govt. of NCT Delhi) (2025): A landmark decision reaffirming that a credible dying declaration can, by itself, form the basis of conviction, even when other forensic evidence, such as ballistic reports, is inconclusive. This highlights the substantial weight Indian courts can place on such statements after rigorous scrutiny.²³
K. Ramaswamy v. State of Tamil Nadu (1976): The Supreme Court held that a dying declaration could be accepted even if not made in the presence of a magistrate, emphasizing the belief of imminent death as the crucial criterion for admissibility.⁴
Nisar Ali v. State of Uttar Pradesh (1991): This case underscored that the statement must relate directly to the cause of death and that its credibility depends significantly on the declarant's mental state and the surrounding circumstances, with corroboration being desirable where possible.⁴

United States:

Shepard v. United States (1933): This landmark case strictly construed the requirement of a "settled, hopeless expectation of death," emphasizing that the declarant must have abandoned all hope of recovery for the statement to be admissible.¹⁵
Carver v. United States (1897): The Supreme Court ruled that statements made by the deceased that contradicted her dying declaration were admissible to impeach the declaration. This ruling acknowledged that dying declarations are not infallible and can be challenged for their veracity.²⁰
The Boston Massacre trial (1770) serves as an early American example where Patrick Carr's dying statement, indicating provocation, played a role in the defense's argument, demonstrating the historical impact of such declarations.²

United Kingdom:

Geoffrey v Goddard (1202): This case is an early historical reference to the admission of a dying declaration, illustrating its ancient roots in English common law.²
The Criminal Justice Act 2003 represents a significant statutory shift from the common law regime. It effectively replaced the specific dying declaration exception with a broader "unavailability" exception, subject to judicial discretion to exclude unreliable evidence. This legislative change reflects a move towards a more generalized approach to hearsay exceptions.²

Indian jurisprudence stands out by explicitly allowing a dying declaration to be the sole basis for conviction if it is found credible.¹⁰ This represents a significant departure from the general common law skepticism towards uncorroborated hearsay, particularly in criminal matters where the standard of proof is "beyond reasonable doubt." The recent

Suresh @ Hanumant case ²³ further solidifies this stance, even de-emphasizing inconclusive forensic evidence when a credible dying declaration exists. This implies a higher intrinsic trust placed on the dying declaration in India, possibly stemming from the broader interpretation of Section 32(1) ¹⁰, which does not strictly require an "expectation of death" for the statement to be relevant. This broader relevance allows for more statements to qualify as dying declarations, increasing their potential frequency and impact in trials. This approach, while potentially efficient in securing justice in cases where the victim is the sole witness ¹⁰, carries a heightened and inherent risk of wrongful conviction if the credibility assessment is flawed or if the inherent unreliability factors are not fully appreciated. The absence of cross-examination ⁵ and the potential for compromised mental states ² are particularly concerning when a dying declaration is the only evidence. This highlights a critical tension between the practical necessity of utilizing such evidence to prevent impunity and the fundamental due process right of the accused to confront their accuser, a right that is often central to US jurisprudence.²⁶ The Indian approach, while rooted in its own legal context, raises questions about the balance between expediency and the rigorous standards required for criminal convictions.

IV. The Critical Lens: Challenges to Reliability and Fairness

Despite their historical acceptance and continued utility, dying declarations face profound challenges to their reliability and the fairness of criminal proceedings. These challenges stem from the very circumstances of their making and the inherent limitations of their evidentiary nature.

The Absence of Cross-Examination: A Due Process Conundrum

The most fundamental challenge to the reliability of dying declarations arises from the fact that the declarant is unavailable for cross-examination.⁴ Cross-examination is a cornerstone of adversarial legal systems, widely considered crucial for testing the veracity of statements, exposing inconsistencies, and assessing witness credibility.⁷ Its absence in the context of dying declarations represents a "great hardship to the defendant," who is deprived of the opportunity to directly challenge the accuser's statements.²⁰ This raises significant due process concerns, as the accused cannot fully probe the declarant's perception, memory, or potential biases.

Factors Affecting Declarant's Credibility: Physical/Mental State, Pain, Suggestion

The very circumstances that lead to a "dying declaration" can paradoxically undermine its reliability. The declarant's physical or mental weakness, often exacerbated by severe pain, shock, or the effects of medication, can profoundly impair their perception, memory, and ability to articulate accurately.² There is also a significant risk of misinterpretation or misapplication of the declarant's words, particularly if their communication is limited to signs or gestures.³

Furthermore, statements may be influenced by a desire for self-vindication or a disposition to falsely impute responsibility to another, thereby introducing a powerful element of bias.² Critically, dying declarations are frequently made in the absence of the accused and can be elicited in response to leading questions or direct suggestions from those present, further compromising their spontaneity and truthfulness.² Historical accounts confirm that dying declarations are "not always true" and can be "contradictory".¹⁸ The

Carver v. United States case (1897) explicitly noted that "the history of criminal trials is replete with instances where witnesses, even in the agonies of death, have, through malice, misapprehension, or weakness of mind, made declarations that were inconsistent with the actual facts".²⁰ The overall context—including the declarant's medical condition, emotional state, and the presence of others—can significantly influence the statement's meaning and reliability.³

Potential for Bias and Self-Serving Statements

Beyond general factors, specific biases can affect a dying declaration. Professor Wigmore, for instance, observed that the historical restriction of dying declarations to homicides stemmed from concerns about a declarant's temptation to falsify statements in civil cases for pecuniary gain.¹⁸ This observation implies a broader concern about self-serving motives influencing the content of such declarations. The "desire of self-vindication" or "disposition to impute the responsibility for a wrong to another" ² directly points to the potential for a declarant to make a statement that serves their own interests or biases, rather than being a purely objective account of events.

The Fading Religious Rationale in Modern Legal Systems

The original religious justification for the dying declaration exception—the belief that a dying person would not lie for fear of meeting their Maker with a falsehood on their lips—has significantly lost its conviction in modern, increasingly secular legal systems.⁹ Few contemporary evidence scholars are convinced by even "modernized, cautious justification[s]" for the exception.⁹ The sentiment that it is "the laughing stock of hearsay exceptions" ⁹ reflects a widespread skepticism regarding its inherent reliability in the absence of empirical support.

The fundamental problem with dying declarations is the inherent lack of cross-examination ⁵, which is universally recognized as the most effective mechanism for truth-finding in adversarial legal systems. Compounding this, the very circumstances that give rise to a dying declaration—severe injury, impending death, and intense pain—are precisely those that can compromise a declarant's mental and physical state, leading to misperception, confusion, or even a desire for revenge or self-vindication.² The fact that these statements are often made in the absence of the accused, and potentially in response to leading questions or suggestions from those present, further exacerbates reliability concerns, as external influences cannot be fully assessed or challenged.² The historical record itself acknowledges instances of "malice, misapprehension, or weakness of mind" in dying declarants.²⁰ This confluence of factors creates a significant and largely unmitigated risk of wrongful convictions. While courts acknowledge these issues and call for careful scrutiny ³, the absence of direct challenge through cross-examination means that these inherent flaws cannot be fully exposed, tested, or mitigated in the same way as live testimony. The continued reliance on the "dying man won't lie" maxim ² appears increasingly tenuous in the face of psychological and physiological realities, making the exception a potential Achilles' heel for due process and the integrity of criminal justice outcomes. The system, by admitting such evidence, implicitly accepts a degree of unreliability that would be unacceptable for other forms of evidence.

Table: Key Factors Undermining Dying Declaration Reliability

Factor	Description of Impact	Legal/Judicial Acknowledgment
Absence of Cross-Examination	Prevents testing of veracity, exposure of inconsistencies, and assessment of declarant's credibility; significant due process hardship for the accused.	FRE 802 reflects favoring cross-examination ⁹; NY courts note lack of "same value" as sworn testimony ¹²;	Carver v. United States highlights "great hardship".²⁰
Compromised Physical/Mental State	Pain, weakness, shock, or medication can impair perception, memory, and coherent communication, leading to inaccurate or confused statements.	Wisconsin Supreme Court criticism ²; Acknowledged by courts considering "totality of circumstances" ³; Indian courts emphasize "mental capacity" and "fit state of mind".⁴
Potential for Suggestion/Leading Questions	Statements made in response to direct or leading questions, especially in the absence of the accused, can be influenced or fabricated by others present.	Criticism notes declarations "often in response to leading questions and direct suggestions" ²; Magistrates instructed to avoid leading questions.²¹
Bias/Self-Vindication	Declarant may have a motive to falsely implicate someone, exaggerate, or seek revenge, rather than provide a purely factual account.	Criticism notes "desire of self-vindication, or a disposition to impute the responsibility for a wrong to another" ²; Wigmore's criticism regarding civil cases.¹⁸
Misinterpretation/Lack of Clarity	Words, gestures, or incomplete statements may be misinterpreted by those recording or hearing them, leading to an inaccurate representation of the declarant's true intent.	Courts consider "clarity and specificity" ⁴; "Misinterpretation or misapplication of the declarant's words".³
Fading Religious Rationale	The traditional justification for reliability (fear of divine judgment) is less persuasive in modern, secular contexts, eroding the theoretical basis for the exception.	"Original religious justification... may have lost its conviction" ⁹; "Laughing stock of hearsay exceptions".⁹

This table systematically dissects and presents the multifaceted reasons why dying declarations are inherently unreliable. It moves beyond general statements of unreliability by categorizing and detailing specific undermining factors, making the critique comprehensive and organized. For each factor, it explicitly links back to the research, providing direct legal and academic acknowledgment of these concerns. By clearly articulating the weaknesses, this analysis directly informs the subsequent discussion on proposed reforms. Understanding what makes dying declarations unreliable is essential for formulating effective solutions to enhance their credibility and ensure fairness. It allows for a comprehensive grasp of the depth of the challenge facing legal systems in balancing necessity with due process.

V. Constitutional Confrontation: The US Perspective

In the United States, the admissibility of dying declarations is further complicated by the Sixth Amendment to the Constitution, which guarantees a criminal defendant the right "to be confronted with the witnesses against him".²⁶ This Confrontation Clause is a fundamental protection designed to ensure a fair trial.

The Impact of Crawford v. Washington and Testimonial Hearsay

The landmark Supreme Court decision in Crawford v. Washington (2004) profoundly reshaped US hearsay law. This ruling held that "testimonial" out-of-court statements—those made with the expectation that they would be used in a future prosecution—are admissible against a defendant only if the declarant is unavailable and the defendant had a prior opportunity for cross-examination.² This decision significantly tightened the admissibility of many forms of hearsay that had previously been admitted under various reliability exceptions.

Dying Declarations as a Historical Exception to the Confrontation Clause

Despite the strictures imposed by Crawford, the Supreme Court has indicated in dicta that dying declarations may constitute a unique and historical exception to the new confrontation jurisprudence.² This potential exception is rooted in the understanding that dying declarations were recognized exceptions to the right of confrontation "at the time of the founding" of the US Constitution.²⁶ However, the Court has not definitively addressed whether the dying declaration exception remains valid after the

Crawford line of Confrontation Clause cases, leaving a critical legal question unresolved.²

Unresolved Questions and Judicial Divergence

The inherent tension lies in the "testimonial" nature of many dying declarations. For instance, a victim identifying an attacker to the police would typically be considered a testimonial statement, which, under Crawford, would ordinarily be prohibited without prior cross-examination.¹⁷ Some appellate courts have held that the Confrontation Clause likely incorporates an exception for testimonial dying declarations, as seen in

People v. Clay in New York.¹² This area of law remains "murky" ¹⁷, leaving open critical questions about the balance between historical exceptions and contemporary constitutional rights.

The Supreme Court's decision in Crawford v. Washington (2004) fundamentally re-centered US hearsay law around the Sixth Amendment's Confrontation Clause, emphasizing the right to cross-examination for "testimonial" statements.¹⁷ This was a dramatic shift intended to bolster defendants' rights. However, the Court has, in

dicta, suggested that dying declarations might be a historical exception to this rule, even if they are "testimonial".² This creates a significant anomaly: a core constitutional right (confrontation) is seemingly set aside for a type of evidence that

Crawford itself sought to restrict, based on a historical justification that is increasingly questioned for its empirical validity.⁹ This highlights a tension within the Court's originalist approach to constitutional interpretation, where historical exceptions are preserved even when they appear to contradict the underlying rationale of a broader constitutional principle. This unresolved legal question leaves a significant vulnerability in US criminal proceedings. If a testimonial dying declaration is admitted without the opportunity for cross-examination, it directly impinges on the defendant's Sixth Amendment rights, yet it is currently tolerated due to historical precedent. This situation is ripe for further Supreme Court clarification and potentially legislative reform to reconcile historical practice with modern constitutional mandates, especially given the inherent unreliability factors previously discussed.³ The continued ambiguity undermines the clarity and consistency of confrontation jurisprudence and could lead to inconsistent application across jurisdictions.

VI. Procedural Safeguards and Best Practices for Recording

The credibility and evidentiary weight of a dying declaration are heavily contingent upon the declarant's mental state and the precise circumstances surrounding its making.⁴ Consequently, meticulous recording procedures are paramount to ensuring the statement's voluntariness, truthfulness, and accuracy.⁴ Courts are expressly mandated to carefully scrutinize the conditions under which such declarations are obtained.²¹

Guidelines for Recording (e.g., Magistrate Presence, Medical Certification, Q&A Format)

Several guidelines and best practices have evolved to enhance the reliability of dying declarations:

Preferred Recorder: While statements made to doctors or police officers can be admissible if deemed credible, recording by a magistrate is generally preferred. This preference stems from a magistrate's neutrality, legal training, and ability to ensure proper procedure.⁵
Identity and Mental Capacity: The individual recording the declaration, particularly a magistrate, should first disclose their identity to the declarant. Crucially, they must ascertain the declarant's mental capacity by asking simple, eliciting questions to gauge their state of mind and confirm their ability to make a coherent statement.¹⁴
Medical Certification: Whenever practically possible, a certificate from a medical officer confirming the declarant's mental and physical condition should be obtained. This provides objective, independent evidence of the declarant's fitness to make a statement, bolstering its credibility.¹⁴
Verbatim Recording: To preserve authenticity, the declaration should be transcribed as far as possible in the exact words used by the declarant.¹⁴
Question-Answer Format: Recording the declaration in a question-and-answer format is often preferred, especially by magistrates. This method helps to ensure clarity, elicit maximum relevant information, and minimize ambiguity. Every question posed to the declarant, along with every answer, sign, or gesture made in reply, should be meticulously recorded.⁵
Avoid Leading Questions: It is critically important to avoid leading questions or direct suggestions, as these can unduly influence the declarant and compromise the authenticity and voluntariness of the statement.²
Review and Signature: After the statement has been recorded, it should be read back to the declarant to confirm its accuracy. The declarant's signature or thumbprint should then be obtained if possible, with a clear explanation documented if it cannot be secured.¹⁴
Indian Specifics: In India, no particular form is prescribed for a dying declaration; it can be oral, written, or even conveyed through gestures and signs, depending on the declarant's condition.⁵
US Police Guidelines: US police guidelines emphasize the importance of reducing the statement to writing, obtaining a signature, ensuring witnesses are present, and explicitly asking the injured person if they believe they are about to die.²⁸

In Bangladeshi law, a "dying declaration" is a crucial piece of evidence, primarily governed by Section 32(1) of the Evidence Act, 1872. It is an exception to the general rule against hearsay evidence, meaning it can be admitted in court even though the person who made the statement (the declarant) is not available to testify.

Here's a breakdown of the key aspects of dying declarations in Bangladeshi law:

1. Definition and Basis:

A dying declaration refers to statements made by a person about the cause of their death or the circumstances leading to their death.
The legal principle behind its admissibility is the Latin maxim "Nemo moriturus praesumitur mentiri," which translates to "a man will not meet his maker with a lie in his mouth." It's believed that a person facing imminent death is unlikely to fabricate a statement.

2. Admissibility and Relevance:

Section 32(1) of the Evidence Act, 1872 specifically states that such statements are relevant when made by a person as to the cause of their death, or as to any of the circumstances of the transaction that resulted in their death, in cases where the cause of that person's death comes into question.
Crucially, unlike English law, it is not necessary in Bangladeshi law that the deceased, at the time of making the declaration, was under the expectation of death. The statement is relevant whether or not the person who made it was aware of their impending death.
Dying declarations are admissible in both civil and criminal proceedings.

3. Key Requirements for Admissibility: While the expectation of death isn't a strict requirement, courts generally look for the following to ensure the reliability of a dying declaration:

Competency of the declarant: The person making the statement must have been in a fit mental state to understand the nature and consequences of their statement and communicate clearly.
Voluntariness: The statement must be made freely and voluntarily, without any coercion, undue influence, threats, or promises.
Relation to cause of death: The statement must directly relate to the cause of the declarant's death or the circumstances of the transaction that led to their death. General expressions of fear or suspicion not directly related to the death are not admissible.
Consistency: If there are multiple dying declarations, they should ideally be consistent. Significant inconsistencies can raise doubts about their reliability.
Death of the declarant: The person who made the declaration must have died for it to be admitted as a dying declaration. If they survive, the statement may still be used for other purposes, like corroborating their testimony (Section 157) or contradicting them (Section 145), but not as a dying declaration under Section 32(1).

4. Form of Dying Declaration:

There is no specific prescribed form for a dying declaration. It can be:

Oral: Spoken words.
Written: Recorded in writing.
By gestures or signs: If the declarant is unable to speak.
In the form of questions and answers.

5. Evidentiary Value and Corroboration:

A truthful, coherent, and consistent dying declaration can, by itself, form the sole basis for a conviction, even without further corroboration.
However, corroboration is a rule of prudence, not a strict rule of law. Courts will carefully scrutinize dying declarations, especially if there are any suspicious circumstances.
Factors that might lead a court to seek corroboration include:

If the declarant was not in a fit state of mind.
If there are inconsistencies with other evidence.
If there is a delay in recording the declaration.

6. Who can record a dying declaration?

While it's ideal for a dying declaration to be recorded by a magistrate, particularly after taking proper precautions (like ensuring the declarant's fitness of mind), it can also be made to and recorded by:

Police officers.
Doctors and nurses.
Any private person or ordinary citizen present at the time, provided they can attest to the voluntariness and authenticity of the declaration.

Important Note: The burden of proving a dying declaration always lies on the prosecution. The court must be satisfied that the declaration is true and voluntary before relying on it.

Challenges in Emergency Situations and Practical Limitations

Despite these best practices, emergency situations frequently present significant practical limitations that hinder strict adherence to all procedural safeguards. There may be "neither time nor opportunity to reduce the statement to writing," in which case oral declarations are admissible.²⁸ The declarant's severe medical condition, emotional state, or the urgent circumstances of the scene can make it exceedingly difficult to adhere to all procedural safeguards, such as obtaining a medical certificate or ensuring a magistrate's presence.³ When multiple dying declarations are made, their consistency becomes crucial, and any discrepancies necessitate careful examination by the court.⁵

There is a significant and persistent gap between the theoretical procedural safeguards designed to ensure reliability and the practical realities of obtaining such statements from critically injured or dying individuals. While comprehensive best practices for recording dying declarations exist, advocating for magistrate presence, medical certification of mental fitness, and a meticulous question-and-answer format ¹⁴, the circumstances of their making often preclude these ideal conditions. Oral declarations are admissible ⁴, and courts have accepted declarations even without a doctor's presence to ratify the victim's mental condition.¹¹ This creates a situation where the legal system, by allowing less-than-ideal recordings, implicitly prioritizes the "necessity" of obtaining any evidence from a dying victim over its "reliability," potentially leading to miscarriages of justice. When statements are not meticulously recorded, when mental fitness is not objectively certified, or when they are influenced by leading questions due to the exigencies of the situation ², their evidentiary value is severely compromised.

The Role of Video Recording in Enhancing Authenticity

Video recording is increasingly recognized as a vital tool for enhancing the authenticity and reliability of dying declarations.²⁴ It captures not only the declarant's spoken words but also crucial non-verbal cues: their physical and mental state, emotional condition, the presence of others, and the precise nature of the questions asked. This provides invaluable context and can significantly mitigate concerns about misinterpretation, coercion, or leading questions.³ Video recordings can ensure evidence integrity and maintain a clear chain of custody, offering an objective record that allows for independent verification and rigorous judicial scrutiny of the circumstances.²⁹ Such recordings can also be admissible if relevant and if they do not breach exclusionary rules, potentially qualifying under exceptions like excited utterance if made under extreme stress.²⁹

VII. Towards Reform: Enhancing Credibility and Balancing Rights

The inherent paradox of dying declarations—the tension between their perceived necessity (often the victim is the sole witness to a grave crime) and their inherent unreliability (due to the absence of cross-examination and the declarant's compromised state)—has long plagued legal systems. Legal scholars and practitioners have consistently called for reforms to improve the admissibility and dependability of dying declarations.³² Such reforms aim to strike a better balance between the imperative of seeking justice and upholding the fundamental rights of the accused and victims ³², particularly the right to a fair trial and the presumption of innocence.

Proposals for Stricter Admissibility Standards

Reform proposals often advocate for stricter admissibility standards that go beyond the traditional "imminent death" belief, potentially requiring more objective indicators of reliability. This would involve a more rigorous assessment of the circumstances surrounding the declaration, ensuring that the foundational elements of voluntariness, mental capacity, and freedom from undue influence are demonstrably met.

Mandatory Video Recording and Independent Verification

A key reform proposal, and one with transformative potential, is the mandatory video recording of dying declarations wherever feasible.²⁴ Video captures not just the words spoken, but also crucial non-verbal cues: the declarant's physical and mental state, their demeanor, the presence and influence of others, and whether leading questions were asked. This shifts the assessment of reliability from a subjective, post-hoc inference based on witness testimony to an objective, verifiable, and reviewable record. This would provide a significantly more robust and transparent basis for judicial scrutiny of voluntariness, mental capacity, and the absence of coercion, thereby substantially enhancing the credibility of the evidence while still preserving its vital utility in cases where it is otherwise crucial for justice. This technological solution offers a concrete pathway to reconcile the historical necessity of the exception with modern demands for due process, reliable evidence, and transparency, potentially transforming what has been called the "laughing stock" of hearsay exceptions into a more respected and defensible evidentiary tool. It moves the legal system closer to a "best evidence" standard even for these unique circumstances.

Revisiting the Scope and Application in Light of Modern Evidentiary Principles

There is an ongoing debate about the continued viability of the dying declaration exception, particularly its relationship with modern constitutional rights like the Sixth Amendment's Confrontation Clause in the US.¹⁷ Legal discourse questions whether the exception should be expanded to new contexts or, conversely, abolished altogether, given its inherent flaws.³⁴ The "necessity" argument for its admission should be re-evaluated in an era of advanced forensic science, improved investigative techniques, and the availability of other forms of evidence that were not present when the exception originated. This re-evaluation could lead to a more nuanced application, perhaps reserving its use for truly exceptional circumstances where no other evidence is available.

Ethical Considerations in Admitting "Last Words"

The admission of dying declarations raises significant ethical dilemmas, requiring legal practitioners to balance the pursuit of justice with the protection of the rights of both the accused and the victim.³² The traditional, religiously-based justification for their trustworthiness is increasingly seen as "outdated and parochial" ³², prompting a re-evaluation of the ethical underpinnings of admitting such evidence. While civil law systems often operate on a principle of "free evaluation of evidence" where a judge's personal conviction plays a significant role ³⁵, criminal matters typically demand a higher standard of proof ("beyond reasonable doubt"). This contrast highlights the ethical tension in relying heavily on a potentially unreliable form of evidence in criminal cases, especially when the accused is deprived of the fundamental right to confront their accuser.

VIII. Conclusion: Navigating the Future of Dying Declarations

This report has critically examined the concept of dying declarations, highlighting the inherent tension between their historical justification—rooted in the "Nemo moriturus praesumitur mentiri" maxim and perceived necessity—and persistent concerns about their reliability in modern criminal justice systems. Significant jurisdictional differences exist in their admissibility criteria and evidentiary weight, with India's broader scope and willingness to convict solely on a dying declaration contrasting sharply with the more cautious approaches in the US and UK. The absence of cross-examination, coupled with factors such as the declarant's compromised physical and mental state, the potential for suggestion, and inherent biases, poses fundamental challenges to fairness and due process. In the US, the unresolved constitutional implications stemming from Crawford v. Washington and the Confrontation Clause create a complex and uncertain legal landscape.

Recommendations for a More Robust and Equitable Application

To address the identified challenges and ensure a more robust and equitable application of dying declarations in criminal cases, the following recommendations are proposed:

Mandatory Video Recording: It is imperative to advocate for mandatory video recording of dying declarations as a universal best practice, transitioning it from a desirable option to a legal requirement wherever feasible. This would significantly enhance transparency, reliability, and the ability of courts to objectively assess credibility by capturing not only the words but also the context, demeanor, and potential influences.
Stricter Judicial Scrutiny: Courts should implement stricter and more explicit judicial scrutiny of all factors influencing reliability, particularly for uncorroborated declarations. This includes a rigorous assessment of the declarant's mental and physical fitness at the time of the statement, the meticulousness of the recording process, and a careful evaluation of the potential for external influence or leading questions.
Legislative Clarification: Legislative action is recommended in jurisdictions where the scope of application or constitutional implications, such as in the US regarding the Confrontation Clause, remain ambiguous. Clear statutory guidance would provide consistency and predictability in the law, reducing judicial divergence and ensuring constitutional compliance.
Tiered Evidentiary Weight: A tiered approach to evidentiary weight should be considered, where declarations recorded under ideal conditions (e.g., video-recorded, medically certified, magistrate-present, unprompted) receive higher probative value. Conversely, declarations with significant procedural deficiencies or those made under highly compromised circumstances should be treated with extreme caution or, if their unreliability is substantial, excluded from evidence entirely.

Final Thoughts on the Enduring Relevance and Necessary Evolution of this Unique Evidence

Despite the pervasive criticisms and inherent challenges, dying declarations continue to hold a vital, albeit controversial, place in criminal justice systems globally. They often serve as the only direct evidence in grave crimes, making their complete abandonment impractical in many contexts. However, their continued utility necessitates a proactive and progressive approach to reform. The evolution of evidence law and advancements in technology demand that even ancient exceptions adapt to modern standards of reliability, due process, and fairness. The future of dying declarations lies in embracing procedural enhancements and rigorous judicial oversight to ensure that these "last words" serve as a true instrument of justice, rather than a potential pathway to injustice.

IX. References

https://ijnrd.org/viewpaperforall.php?paper=IJNRD2502131

https://en.wikipedia.org/wiki/Dying_declaration

https://www.numberanalytics.com/blog/ultimate-guide-dying-declarations-evidence-law

https://www.ilms.academy/blog/dying-declaration-legal-concept-key-ingredients-landmark-cases-and-implications-in-the-atul-subash-case

https://blog.ipleaders.in/dying-declaration-2/

https://www.law.cornell.edu/wex/dying_declaration

https://blog.criminaldefencesolicitors.co.uk/exceptions-to-the-hearsay-rule/

https://www.uscourts.gov/file/3482/download

https://www.law.georgetown.edu/american-criminal-law-review/in-print/volume-55-number-2-spring-2018/reliability-of-dying-declaration-hearsay-evidence/

http://student.manupatra.com/Academic/Abk/Law-of-Evidence/Chapter4.htm

https://ijalr.in/admissibility-and-evidentiary-value-of-dying-declaration-in-india/