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Will a Dying Declaration Come into Evidence in my Massachusetts Personal Injury Case?

There simply tends to be something more reliable about a statement made on one's death bed than one made in ordinary life. Regardless of the reliability of any one statement, as a whole we feel, as a society, that death bed statements are reliable. Maybe it's because there seems to be nothing to lose or maybe it's because people tend to want to clear their consience before death, we feel so strongly about this phenomina that we have carved out a hearsay exception . . . . well, at least sometimes.

Okay, Massachusetts personal injury law is our thing, so whenever reviewing law, particularly evidentiary thresholds, we are naturally going to relate them back to our practice personal injury law. Logically, the dying declaration could be relevant to a personal injury case. After all, wrongful death actions are in fact personal injury cases. The wrongful death action arises when there is a negligent party, just as with personal injury cases. The only difference is that in wrongful death actions, someone dies. There may be additional liability, notably punitive damages available, but the rules of evidence tend to apply equally across the board.

An interesting difference when it comes to the dying declaration hearsay exception is that under the Massachusetts rules of evidence is only available in homicide cases. That is, the dying declaration exception is only available under Massachusetts law when it pertains to criminal cases. This could clearly be discouraging to the family trying to recover in a personal injury action and having a difficult time proving the at fault party when there was a lack of witnesses. One could easily create a hypothetical situation in which the main piece of evidence establishing fault is a dying declaration. In Massachusetts, that personal injury case would be problematic if it was in state court. But what about federal court?

Under the federal rules the dying declarations may be used in both criminal and civil cases, including personal injury cases. That means that dying declarations can be introduced into evidence as exceptions to the hearsay rule when the thresholds of the rule are established. The basics of the dying declarations exception are as follows.

Under the Federal Rule of Evidence 804, a dying declaration may be admitted as an exception to the hearsay rule in both criminal and civil cases. Under the rule, statements made under the belief of imminent death about the cause or circumstance of the imminent death may be admitted.

You can kind of see the problem here. Inconsistencies in the law provide for different results in different jurisdictions. Remember that not all cases are appropriate for federal court. The federal court may have jurisdiction over a case and therefore, the case may be brought there. Likewise is the same for state court. But, many cases they be brought in either court, federal or state. In such cases, plaintiff's lawyer would need to consider the importance of getting a dying declaration into evidence. In any case in which a comment made by the party dying when death was imminent about its cause or circumstances is relevant to the case, the attorney bringing the action should consider bringing the action in federal court if there is jurisdiction. If you have a personal injury case in Massachusetts, particularly a wrongful death case, and in any event in which a relevant individual has died, be sure to consult with a personal injury lawyer who understands this portion of the evidence law.

Categories: Personal Injury, evidence

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