Exceptions to the Hearsay Rule

SECTION 37. Dying Declaration.  The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the object of inquiry, as evidence of the cause and surrounding circumstances of such death.

Another name for Dying Declaration is ANTE MORTEM STATEMENT.

ILLUSTRATION: Somebody was stabbed. As he lay dying, a policeman went over him and asked him, “Who stabbed you?” The victim answered,

“X stabbed me.” Afterwards, the victim expired. So, X is prosecuted for killing the victim. The policeman is a witness and testifies that he was present when there was a commotion and came across a dying man whom he identified as the victim. And then he was able to talk to the victim before the latter died:

COUNSEL:

What did you ask the dying victim?

POLICEMAN:

I asked him: “Do you know who stabbed you?” and he says yes. I asked him “Who stabbed you?” He said it was X, the accused, who stabbed him.

Actually, the policeman’s testimony is hearsay. The policeman did not actually see X stab the victim. And yet, according to Section 37, the testimony is admissible as an exception to prove the truth that, really, X is the killer.

Q: What are the reasons behind this exception?

A: There are two grounds or justification cited by Wigmore --(1) necessity; and

(2) trustworthiness.

NECESSITY. According to the Supreme Court: In crimes against persons, such as physical injuries, or homicide, the best person to identify the accused would be the victim himself. But in such crimes, it is impossible for the victim to testify if he has died. He cannot now be used on the witness stand because he is already dead. Necessarily, the prosecution has to present somebody to whom the victim mentioned the identity to the killer. This is the reason.

The declarant’s death makes it impossible to obtain his testimony in court, and usually in crimes against persons, the victim’s testimony is the best evidence of the crime. But out of necessity, since the prosecution can no longer present the victim in court, it presents somebody whom the victim was able to talk to before he died.

TRUSTWORTHINESS. Meaning, it can be relied upon and trusted. The statement is made at the point of death. It is a situation so solemn and awful as creating an obligation equal to that created by a positive oath, administered by a court of justice.

What is the guarantee that the statement is the truth? We cannot really be 100% sure that the witness will tell the truth. But when a witness takes the witness stand and takes an oath to tell the truth, he understands the consequences of giving a false testimony. That is why a statement not under oath is not admissible. But taking the oath does not necessarily mean that the witness will tell the truth.

However, according to the Supreme Court: when a person is dying, that is a very solemn and awful situation. That the solemnity is such that the statement of a dying person is almost the same if not higher than a person who is under oath.

When a person is dying and he is aware that he is dying, what is in his mind is probably the thought of heaven and hell -- that he must cleanse

himself immediately because he does not know what will happen to him when he finally dies. So, in this instance, he must be really be telling the truth, at least maybe for the first time in his life. According to the US Supreme Court, describing this reasoning: truth sits on the lips of a dying man. It is a situation so solemn and awful that the presumption is that the dying man will not tell a lie.

There is a possibility for the dying person to commit a mistake. But at least he thought that he was telling the truth. What is important is for the statement to be admissible in court.

Q: When will a statement qualify as a dying declaration?

A: The elements are based on Section 37.

(1) the declaration refers to the cause and surrounding circumstances of the declarant’s death.

EXAMPLE: As the father lay dying, he told his son: “Son, please come here because I will tell you something. My compadre, X, borrowed money from me three years ago. There was no promissory note. Until now, he has not yet settle his debt. So I am telling you now, X owes me something.” Then, the father expired. So, the son sues X. The son testifies, and to prove the obligation he presents in court what his father told him. “That is what my father said when he was at the point of death.

the truth sits on the lips of a dying man, so what he told me must be true.”

X denies the obligation.

Q: Is the statement of the witness’ dying father admissible in evidence as a dying declaration, an exception to the hearsay rule?

A: No, the son is not talking in court about the cause and surrounding circumstances of his father’s death. The statement made by the father pertained to a debt, an obligation -- about business. The statement is considered a DYING STATEMENT, but not a dying declaration. The statement of the declarant has nothing the do with his death.

(2) the declaration was made under the consciousness of impending death.

Meaning, the declarant must know that he would be dying soon when he made the

declaration. Another term for this: the statement is MADE IN EXTRIMIS --at the point when hope for recovery is faint or extinct.

EXAMPLE: A person was shot. when he could still walk, he met Y. Y asked him: “O, how are you now?” The victim answered, “I’m all right.

This is just a flesh wound.” He was not aware how serious his wound was.

So, he died. But before that, he was able to tell Y that it was X who shot him.

Q: Will the above statement of the victim qualify as a dying declaration?

A: No, because when the victim made the statement, he thought he would still live. In order to qualify as dying declaration, the declarant must first think he is dying. That is a requirement.

When veteran police investigators investigate a dying man who is a victim of murderous assault, he would usually ask so many questions.

“How do you feel?” “What do you think is your condition now?” Then the victim would say, “I am dying; I don’t think I would last one week.” So the victim knows. In other words, there is now a basis.

Q: Must the dying man really say, “I know I am going to die”?

A: There was a case before wherein a man was stabbed. He sustained so many wounds. He was asked by an investigator or other person: “Do you think you will die?” He answered in this manner: “I think so.” This was objected to and attacked in court on the ground that it is not a dying declaration.

PEOPLE vs. BAGUIO 196 SCRA 459

Facts: Alfredo and Lidovina Paulino were conversing with a certain Benny in front of their house at about 10:00 on the evening of March 31, 1981. Then a group of about nine to ten people passed by. Among them, Lidovina recognized Rodolfo Baguio (a.k.a. Bebot) with whom her husband, as Barangay Tanod, earlier had some unpleasant dealings. Lidovina went inside her house to get some money to buy cigarettes. While inside, she heard her husband cry out, “Aray ko po!” She rushed out and saw her husband sprawled on the ground while Bebot and his companions were stabbing him. she saw Bebot himself thrust his weapon at her husband twice. Then, the assailants fled.

Lidovina went to her husband. In a weak voice, he said,

“Kung ako ay bibigyan pa ng Diyos ng pangalawang buhay, hindi maaaring hindi mananagot si Bebot at si Frank.”

Issue: whether or not the utterances of the victim were made under the consciousness of impending death

Holding: Yes, the utterances were made under the consciousness of impending death.

The statement opens with the hope that God might somehow give him a second life. That wish for a second life cannot but indicate his awareness that his first life was draining away with the blood flowing from his many and grievous wounds. This being so, AND it appearing that the other

requisites of a dying declaration are present, the admission and appreciation thereof can hardly be faulted.

On Res Gestae: Even if the declaration in question be somehow still refused admission as a dying declaration, there can be no question about its admissibility AS PART OF THE RES GESTAE, a statement made while a startling occurrence is taking place; his statement being “the reflex of immediate sensual impressions, unaided by retrospective mental action x x x pure emanations of occurrence itself.

PEOPLE vs. PADRONES 189 SCRA 496

Facts: On August 3 1986, Lorenzo Sison, the victim was at the MGR Disco at Surallah, South Cotabato celebrating his birthday over beer and refreshments. whereupon, the two accused, Joseph Biare and Alex Padrones, arrived one after the other.

Later, the victim approached Padrones squeezed his mouth and uttered challenging words: “Are you afraid of the Sisons?” (in apparent reference to the Sisons of South Cotabato, a family with a long history of local and national political authority and clout) It was then a picture of pandemonium as men engaged in brawl, while bottles flew.

Sison suffered stab wounds. Padrones likewise suffered physical injuries. On August 12, 1986, Sison signed a handwritten statement in his hospital bed which he made to the Surallah Police accusing Padrones of having inflicted one stab wound on him, and another from Biare. Subsequently, Sison died. The lower court then convicted the two accused based on the alleged ante-mortem statement of the late Lorenzo Sison.

Issue: whether or not the alleged ante-mortem statement is admissible in evidence.

Holding: No, the statement is inadmissible.

The victim’s alleged ante-mortem statement is not, in fact, an ante-mortem statement. It was executed on August 13, 1986, when the deceased died on August 21, 1986. A dying declaration, to be one, must have been under the consciousness of an impending death. At the time Sison rendered it, he could not say that he was on the pangs of death, based on his actual condition at that time, and that he believed that death was soon at hand.

It bears stressing too that a mere statement of the three signatures appearing on the 3-page statement, in bold and clear strokes, with 2 of them occupying four inches of the page,

and in grand flourishes, pronounced and considered by the trial judge as a dying declaration, precludes any indication that the signer thereof was under an impending death. Further, if the deceased were truly at the point of death, he could not have had the strength to affix three signatures as above-described.

According to the Supreme Court: when a person sustained so many wound and is breathing, but he could hardly talk, he does not have to say it. He knows his condition. there are many cases decided by the Supreme Court wherein there is no evidence really that before the declarant died, he said: “I will tell you now because I think I will die.” This is unnecessary, considering that he could hardly talk. As a matter of fact, when a person makes a dying declaration, chances are, he could hardly write. And considering the nature of his many wounds, he must know that he will soon die. Therefore, this matter has to be taken on a case to case basis. The dying declaration does not really have to be an express statement. But if it is possible to make it expressly, it would be more preferable.

There are some people who cannot talk even though conscious:

INVESTIGATOR:

Do you understand me?

DECLARANT:

(nods his head) INVESTIGATOR:

I will ask you questions answerable by yes or no. If the answer is yes, press my hand once; if the answer is no, press my hand twice. Do you understand?

(Very weakly, the declarant answers the questions by pressing the investigator’s hand.)

INVESTIGATOR:

Do you know who stabbed you?

DECLARANT:

(presses once) INVESTIGATOR:

Is it X?

DECLARANT:

(presses twice)

The admissibility of the above as evidence is attacked when brought upon in the court. The defense claims that there is no showing that the statements were made by the deceased under the consciousness of impending death. The court will then analyze whether or not the second element is present.

Q: What if the declarant survived?

A: Then the declaration is inadmissible.

(3) the declaration is offered in a case wherein the subject of inquiry is the declarant’s death.

Q: What about those cases of clinically-dead persons?

A: The person must die. In dying declaration, the declarant must die because the said evidence is offered only in case where his death is the subject of inquiry. So, if the declarant lives, then there is no evidence.

Therefore, there is no dying declaration in the following crimes:

1. attempted homicide, murder or parricide;

2. frustrated homicide, murder or parricide.

Dying declaration is applicable only in cases of CONSUMMATED homicide, murder or parricide. It is applicable also in civil cases or in civil actions for damages arising from a crime where the family of the deceased has reserved the right to file a separate civil action against the accused. In the latter case, the issue is: whether or not the defendant (accused) was responsible for the death of a plaintiff’s relative.

Q: What if the victim lapses into coma? The victim said: “I think I am going to die.” And then he goes into a coma.

A: It is clear that the dying man must die before his statement may be offered in court as a dying declaration.

TAKE NOTE: The statement of a person who did not die, although he believed at that moment that he would die, is NOT ADMISSIBLE AS A DYING DECLARATION.

PEOPLE vs. DE JOYA 203 SCRA 343

Facts: In the afternoon of January 31, 1978, the 88-year old victim, Eulalia Diamse, was alone in her house watching television when Alvin, grandson of Diamse (victim) went home.

He found his grandmother drenched in her own blood. He then held her hands and asked her: “Apo, apo, what happened?”

Diamse answered: “Si Paqui...”, let go of Alvin’s hands and passed away.

The trial court relied heavily upon such dying declaration and made it the basis in convicting the accused, de Joya, with the penalty of life imprisonment. De Joya appealed the decision of the RTC.

Issue: whether or not the last statement of Diamse can be considered a complete and proper dying declaration.

Holding: The dying declaration of Diamse was incomplete and, as such, cannot be considered as a dying declaration.

It has been held that a dying declaration, in order to be admissible, must be complete in itself. to be complete in itself does not mean that the declarant must recite everything that

constituted the res gestae of the subject of his statement, but that his statement of any given fact should be full expression of all that he intended to say as conveying his meaning in respect of such fact.

It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In other words, the deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The trial court simply answered that by uttering the words, “Si Paqui...”, the deceased had intended to name the person who had thrust some sharp instrument through-and-through her neck just below her ears. But Diamse herself did not say so and the Court cannot speculate on what the rest of her communication might have been, had death not interrupted her.

Justice Feliciano’s concurring opinion Diamse’s dying statement does not qualify as a dying declaration because the two words: “Si Paqui...” do not by themselves constitute a sensible sentence. Those two words may be intended to designate either: (1) a subject of a sentence; or (2) the object of a verb. If they have intended to designate a subject of a sentence, it must be noted that no predicate was uttered by the deceased. It would be different if the deceased uttered, “Si Paqui ang sumaksak sa akin.” On the other hand, if the words were designed to be the object of a verb, it must be noted that no verb was used. The phrase “Si Paqui...” should have been completed and must be related to the question asked by Alvin:

Lola, what happened to you? -- not Lola, who did this to you?

Although the statement must not recite everything, it must be a full expression of all that he intended to say as conveying its meaning with respect to such fact. Wigmore calls this the DOCTRINE OF COMPLETENESS.

In other words, the Supreme Court says that the statement (dying declaration) need not be long or short, but it must be sensible and complete. Again, any statement made by a dying person is a dying statement but is not necessarily a dying declaration. For the statement to be a dying declaration, the requisites must be complied with.

What the law guarantees is merely the admissibility of a dying declaration as an exception to the hearsay rule. The law does not guarantee that the court will believe it because, once again, admissibility is different from credibility.

In one case, the Supreme Court discussed the topic of weight in determining whether or not a dying declaration should be believed.

QUESTION: What are the factors to be considered in determining the credibility of a dying declaration?

(1) trustworthiness of the reporter or witness, or person to whom the declarant was talking (for all you know, what the reporter said in court may be different from what the declarant really said);

(2) the capacity of the declarant at that time to actually remember the past;

(3) his disposition to remember what he remembers;

(4) such attendant circumstances as that the declaration was a result of questions propounded to him in the presence of the police or his friends (who were present when the declaration was made by the victim; what were the questions asked of him; is it possible that the victim did not even understand the questions);

(5) the lack of belief of the declarant in a future life, rewards or punishment (a dying declaration is admissible on the presumption that no man will lie because he believes in the after life).

Q: Suppose the defense prove the declarant was an atheist, does not believe in a second life, God, soul, future reward or punishment, etc., would this affect the weight of his declaration?

A: The credibility of the declarant might be affected. The presumption that he will not lie will be weakened because the above circumstances show his background. The fact of the dying declaration is contrary to the facts

A: The credibility of the declarant might be affected. The presumption that he will not lie will be weakened because the above circumstances show his background. The fact of the dying declaration is contrary to the facts

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