DYING TO SAY IT (Dying Declarations, Exception to the Hearsay Rule)

By Obiter07

In an old movie of Ms. Charito Solis, there is a dramatic scene where she says to someone that - those who are about to die do not lie, reveals all, then jumps off a high place. It’s a classic film and that heart-rending sight was really done quite well, with the actress’ face forcing a smile while in tears as she speaks and discloses a secret she has kept for so long. But the premise of this film is not something based on just the director’s imagination as it also has basis in law, particularly in the rules on evidence.

What is hearsay

Under the Rules on Evidence, a witness can only testify as to facts that he personally knows based on his own observation. Hence, hearsay is not allowed.

“5. TESTIMONIAL KNOWLEDGE
Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a)” (Rule 130)

What exactly is hearsay? Note that the rule does not define what it is but only what it is not: facts not perceived by the witness himself. Thus, rumours are a no-no. The rule is based on concerns about the trustworthiness and reliability of hearsay evidence, since this is not given under oath and not subject to cross-examination where opposing counsel can test a witness. This is because in a hearsay situation there are actually two witnesses - one who is testifying in court and one other person, whose utterances are the subject of the testimony.(Herrera, Remedial Law, Vol. V (1999), pp. 565-567)

Dying declarations as exception to hearsay rule

However, there are exceptions to the hearsay rule such as the dying declaration.

“6. EXCEPTIONS TO THE HEARSAY RULE
Sec. 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 subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a)”

It may seem archaic but the rules do presume that a dying man has the conscience, or enough of it, to tell the truth. However, his declaration can only cover cases wherein the “death of the declarant is the subject of inquiry.” To put in more literary terms, “truth sits in the lips of the dying man” (Ibid., p. 596) Woe to you if he does not have that much of a conscience and repeats a lie despite his impending exit from this world.

Even the Supreme Court has referred to this exception as the “most mystical in its theory.” It further stated that “a dying declaration or ante mortem statement is evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation. xxx [T]he declarant’s death renders it impossible his taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime; allowing it, therefore, prevents a failure of justice. xxx [The] declaration is made in extremity, when the party is at the point of death and when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court.” PEOPLE vs. CERILLA [G.R. No. 177147. November 28, 2007.]

There are 4 requisites in order for this exception to the hearsay rule to apply:

“xxx [F]irst, the declaration must concern the cause and surrounding circumstances of the declarant’s death. xxx Second, at the time the declaration was made, the declarant must be under the consciousness of an impending death. xxx Third, the declarant is competent as a witness. The rule is that where the declarant would not have been a competent witness had he survived, the proffered declarations will not be admissible. xxx Fourth, the declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim. xxx.” (Ibid.)

Examples of Dying Declarations

Just to show this exception in actual practice and to try and place you in such a tragic and extreme situation, below are excerpts from a case where a dying declaration formed part of the evidence to convict the accused.

In one case, the father was shot as he walked with his daughter who cradled him in her arms when he fell:

“The victim communicated his ante-mortem statement to three persons who testified with unanimity that they had been told by the victim himself that it was appellant who shot him. Michelle recounted:
Q: You said your father moved towards you, what happened next?
A: I approached my father and cuddled him.
Q: What happened next?
A: While I was cuddling my father he said, “Day, it was Joemarie who shot me.”
Q: How many times he said he was shot?
A: Not once but about 10 times.
xxx
SPO3 Dequito, who responded immediately to the crime scene, corroborated the testimonies of the Alexander’s children, to wit:
xxx
COURT:
Q: Meaning you loaded the victim into the ambulance?
A: Yes, Your Honor.
Q: And after he was loaded, what did you do?
A: Before the ambulance left the area, I questioned the victim who shot him and he answered Alias “Pato.” I am referring to Joemarie Cerilla, the accused.
Q: The accused Cerilla, Alias “Pato”?
A: Yes, Your Honor.
xxx
Likewise, Alexander’s wife, Sonia, testified:
xxx
Q: When you reached that hospital and your own mother led you to where Alexander was, in what part of the hospital did you first see him?
A: Outside the operating room.
Q: What was the situation of your husband when you first saw him?
A: He was leaning on his side and many nurses attending to him and saying “araguy.”
xxx
Q: Between you and your husband who spoke first?
A: My husband.
Q: What were the exact words stated by your husband?
A: He told me that it was Joemarie who shot him” (Ibid.)”

In another case, a policeman who was responding to the robbery of a grocery store was shot in the face by one of the perpetrators and literally identified his assailant by means of his own blood.

“More importantly, PO3 Erwil Pastor identified Galingan as the robber who shot him. In the emergency room of the Eastern Pangasinan District Hospital, at around 7:00 p.m. on September 2, 1995, Pastor moaned “I might die. I might die.” in the presence of SPO1 Conrado Hidalgo and SPO4 Emilio Nagui. Hence, PO3 Pastor’s statements were taken down by SPO1 Hidalgo who assisted PO3 Pastor in affixing his thumbmark with his own blood:
Q Who shot you?
A Bong Galingan, . . .”
PEOPLE vs. COMILING, et al. [G.R. No. 140405. March 4, 2004.]

You may try and impugn the witness’ credibility, catch him in an inconsistency, reveal his true motives, cast all kinds of doubt on his testimony, but in the end, it is hard to dodge a dead hand that points a finger at you.

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