dying declaration

The Power of a Dying Declaration

Try not to scratch anyone’s car if driving on Uganda roads.

Recently one young man, Kenneth Akena Watmon apparently scratched Matthew Kanyamunyu’s car and was shot for it. He succumbed to his wounds a few hours later but not before he made a dying declaration that the good Samaritans were his attackers.

Now that Matthew Kanyamunyu, his girlfriend Cythia Munwangari and his brother Joseph Kanyamunyu have been formally charged with murder, the public is ready to fault any unanticipated outcome of the case.

Akena’s painful death revived the discussion on the public jury in light of dying declarations. How the public reacts to media coverage in convicting and sentencing accused persons usually persuades the outcome of a case.

What is a dying declaration?

A Dying Declaration is an exception to hearsay.

But before delving into what it is, it is notable to define ‘Hearsay’. Hearsay is another person’s account whose truth cannot be confirmed. It is a statement made outside of court trial, making its admissibility slim unless corroborated by another set of evidence or witness account.

For instance it is hearsay if one reports, ‘I heard that he was shot by the accused.’ Courts prefer, ‘I saw him shoot the young man.’

The latter is direct. It is a factual (or at least assumed) account of what one witnessed at the crime scene. It is made by a competent witness who actually observed the commission of the offence. It’s what ‘pins the accused’ to the crime.

Because evidence, witnesses and testimonies matter in every case, courts and the law developed a phenomenon where certain statements can be admissible in evaluating other facts or allegations. One of them is the Dying Declaration.

A Dying Declaration is therefore the last statement made by the deceased, identifying his assailant/murderer. Being the last communication the deceased makes, it helps the recipients gauge the cause, reason for the death and last account of the deceased’s life.

Characteristics of a Dying Declaration:

  • It is an exception to the ‘hearsay’ rule
  • It’s made by the deceased (a.k.a ‘Declarant’)
  • The Declarant believed his death was ‘near and certain’
  • Often admissible in homicides where the accused is charged with the declarant’s death and;
  • The statement alludes to the circumstances under which the deceased died.

Public prosecution in the face of a Dying Declaration

Public’ in this article is the general society, not the official capacity of the state to prosecute capital offences.

Unlike the public, courts apply a lot of caution because dying declarations hinge on an emotional source where the Declarant knows his end is near. Courts also cannot underestimate the power of a last account, especially from the deceased’s final moments before death.

However, because courts are not life savers, they restrict public influence so as to evaluate facts rather than emotions. It is logic.

That is why it is important to assess the Declarant’s and corroborator’s acts and intentions before and after the fact as seen in Uganda’s case of Tindigwihura Mbahe v. Uganda Cr. App. NO. 9 of 1987.

The intention is to establish ‘motive’. There must be motive to support the alleged attack on the deceased. There must be motive to tell the true account of how and why the deceased was harmed.

In Akena’s case, scratching an expensive car in today’s economy may be reason enough for a hardworking lad to react. As to whether the degree of anger should call for a golden gun (as reported), only the perpetrator knows. If an adult can admit a mistake and seek forgiveness, such rare manner must be applauded, not shot down.

That is why the public is inclined to decide before evaluating the facts at hand because they possess a limited edition of adduced evidence. In this case, it is the late Akena’s dying declaration.

Why Courts are hesitant to give much accord to a dying declaration

  • It may be false
  • It may be contradictory. Although it can be used to scrutinize the circumstances under which the deceased died, it also casts a shadow of doubt on the character and veracity of both the Declarant and corroborator/witness.

On one hand, it may surface for apportioning blame whilst on the other, closure for the victim’s family. Whichever, only the trial court has the final ruling.

  • It may be uncertain. The Declarant may have suffered memory lapse. Unless a medical practitioner can ascertain that the Declarant was in a sane mental state, that statement may be inadmissible.

If, like in William Shakespeare’s King Leah, Act V, Scene 4, a man about to meet his maker would be unwilling to die with a lie on his lips, then how about where the one who no longer believes in any maker makes a dying declaration? Such is the argument for the declarant’s unknown destination. And not many religious inclinations have much influence on that today. While acting as custodians of the law, courts are mandated to exhaust all options on evidence but weigh each option carefully to reach a legal decision, not a moral one. That is our system.

Admissibility of a dying declaration

In adducing evidence, the Law of Evidence provides which is and which is not admissible. Hearsay is not, but a dying declaration may be.

However, because the deceased/Declarant is not alive to testify or defend himself, the dying declaration is the next best thing given that it is from his own lips.  If it is corroborated, i.e supported by another set of evidence or furnished by an independent witness, it is admissible.

Normally, the trial judge examines the competency and admissibility of any evidence adduced. He also examines the value and credibility of the Declarant, his statement and witness/corroborator. Evidence given on oath tends to outweigh other evidence, although all evidence is important when evaluating which is necessary and admissible in the trial.

In the public’s eye, the deceased’s last word is conclusive evidence. Nevertheless, there are instances where the statements are not corresponding to the circumstances in which the deceased died. Without motive, corroboration, the public’s trial fails and is therefore incompetent.

The fate of Public judge and jury

Courts are tentative to disregard dying declarations in highly publicized trials. Although inexperienced in legal procedure and the law and often misled by biased reports in media, public trials elevate dying declarations.

In Akena’s case, his dying declaration will be considered, though with prudence. The character of the prime suspect will be questioned. So will his co-accuseds’. Their previous physical altercations with any person may be investigated. Similar incidents may be exposed, for instance if it is proved that the accused, Kanyamunyu had once brandished his golden pistol to sauna buddies.

The relentless media reports mean that the public has already accused, tried, convicted the accused and are only awaiting court to hand down a formal sentence. Remember, all this is done without due process of the law.

His defence team is therefore burdened to confine the prosecution team to only the facts. The defence may also try to limit its defence on ‘the good Samaritan’ card, which, safe to say does exhibit two sides of a man: one with remorse (guilty) or one with benevolence (innocent).

In a public trial, the public will accuse and convict the party that feeds their curiosity. It seldom considers the legal notion of ‘innocent until proven guilty’, especially where a dying declaration like Akena’s exists. The public may go haywire if Matthew Kanyamunyu (whom it strongly believes pulled the trigger) is acquitted but that is for court to finally decide.

Conclusion

There have been circumstances where the public has ‘crucified’ an accused only to find him innocent after revelation of other facts. Often, the revelation is too late and the extent of pardon not useful to the innocent man who suffers the wrath of his accusers.

Alternatively, the deceased’s dying declaration may be a true account of what transpired before his demise.

However, where judges, lawyers and the public are not witnesses to commission of crimes; and the presence of a trial means prosecution and defence teams must put up an enormous legal battle, the judge is only obligated to follow due process, not public sway.

In order to avoid the ‘Innocent Man’ syndrome, it is advisable to let court handle trials. Only it can handle the crucifixion for it’s errs in due process.

BY ATUHAIRWE AGRACE

This article appears in our weekly digital law magazine, The Deuteronomy Vol 8, Issue 4 of November 25th, 2016

To receive The Deuteronomy in real time, click HERE

 

 

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