Two of the most important exceptions to the hearsay rule, often decisive in criminal cases, are the dying declaration and res gestae. A dying declaration (or ante-mortem statement) is the declaration of a dying person, made under the consciousness of an impending death, concerning the cause and surrounding circumstances of their death, and it is admissible in any case where the declarant's death is the subject of inquiry. Its requisites are: the declaration concerns the cause and surrounding circumstances of the declarant's death; it was made when death appeared imminent and the declarant was under a consciousness of impending death; the declarant would have been competent to testify had they survived; and the declaration is offered in a case where the declarant's death is the subject of inquiry. Its trustworthiness rests on the belief that a person facing imminent death is unlikely to lie, having no motive to falsify and every reason to speak truthfully. Res gestae (things done) covers statements made under the stress of a startling occurrence. A statement is part of the res gestae when made by a person while a startling occurrence is taking place, or immediately prior or subsequent thereto, with respect to the circumstances thereof, and the statement was made spontaneously, before the declarant had time and opportunity to contrive or devise a falsehood. Its requisites are: there is a startling occurrence; the statement was made before the declarant had time to contrive; and the statement concerns the occurrence and its immediately attending circumstances. Statements accompanying an equivocal act material to the issue and giving it a legal significance (verbal acts) are also part of the res gestae. The two exceptions may overlap: a victim's statement identifying an assailant may qualify as a dying declaration and, independently, as part of the res gestae, so that even if the dying-declaration requisites fail (for example, the victim survived, or was not conscious of impending death), the statement may still be admitted as res gestae. So dying declarations and res gestae admit otherwise-hearsay statements because the circumstances of their making guarantee their trustworthiness.
Two Powerful Hearsay Exceptions
The dying declaration and res gestae admit otherwise-hearsay statements because the circumstances of their making guarantee trustworthiness.
Dying Declaration
- Concerns the cause and circumstances of the declarant's death;
- Made under a consciousness of impending death;
- The declarant would have been competent to testify; and
- Offered where the declarant's death is the subject of inquiry.
Res Gestae
A statement made while a startling occurrence is taking place, or immediately before/after, about its circumstances, made spontaneously before the declarant had time to contrive. The two may overlap: a statement failing as a dying declaration (e.g., the victim survived) may still be admitted as res gestae.
Practical Takeaways
- A dying declaration needs a consciousness of impending death;
- Res gestae needs spontaneity under a startling occurrence;
- A statement may qualify as either or both.
Frequently Asked Questions
What is a dying declaration? The declaration of a dying person, made under the consciousness of an impending death, concerning the cause and surrounding circumstances of their death, admissible where the declarant's death is the subject of inquiry.
Why is a dying declaration considered trustworthy? Because a person facing imminent death is believed unlikely to lie, having no motive to falsify and every reason to speak truthfully, which substitutes for the oath and cross-examination.
What is res gestae? Statements made while a startling occurrence is taking place, or immediately before or after, concerning its circumstances, made spontaneously before the declarant had time and opportunity to contrive a falsehood.
Can a statement be both a dying declaration and res gestae? Yes. The two exceptions may overlap, so a statement that fails the dying-declaration requisites, such as when the victim survives, may still be admitted as part of the res gestae.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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