EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, February 4, 2008

As I Lay Dying: Maryland Judge Finds That Deathbed Communications Don't Constitute Dying Declarations

The civil lawsuit against a former Prince George's County police corporal and the county was struck a blow when the Maryland judge hearing the case determined that one of the victim's deathbed statements to his mother constituted inadmissible hearsay.  On January 24, 2007, Brandon Clark and Robert White were making a furniture delivery at the home of former Prince George's County police corporal Keith Washington when Washington opened fire on them.  Articles have noted that Washington is claiming self-defense on the ground that the deliverymen attacked him after they were told to leave his 6 year-old daughter's bedroom.

While White merely suffered wounds from Washington's attack, Clark died from his wounds after weeks on his deathbed.  The families have sued both Washington and PGC based upon the attack; they are seeking $20 million for emotional distress, loss of income, and medical expenses.  In addition to these civil charges, Washington faces second degree murder, weapons and assaut charges.

As part of their case, the families sought to admit communications between Clark and his mother while he was on his deathbed.  According to Clark's mother, she communicated to her son with hand signals, and he indicated that White and he did not attack Washington.  The judge, however, found these communications inadmissible, which means that he must have found that they did not constitute dying declarations. 

Pursuant to Maryland Rule of Evidence 5-804(b)(2), "[i]n a prosecution for an offense based upon an unlawful homicide, attempted homicide, or assault with intent to commit a homicide or in any civil action, a statement made by a declarant, while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death" is admissible as a "dying declaration," an exception to thr ule against hearsay.

Clearly, Clark's communications with his mother concerned the circumstances of his death, and the plaintiffs sought to admit those communications in a civil case, meaning that two of the elements of a dying declaration were satisfied.  The problem, then, was likely the third element, the requirement that the declarant must have made his statement while believing his death to be imminent.  And ever since the Supreme Court's decision in Shepard v. United States, 290 U.S. 96 (1933), courts have interpreted this element strictly.  In Shepard, a wife made a deathbed accusation to a nurse that her husband poisoned her on May 20, 1929; she eventually died on June 15, 1929.

The Court found that the wife's statement did not constitute a dying declaration, noting

    -"To make out a dying declaration the declarant must have spoken without hope of recovery and in the shadow of impending death;"

     -"There must be 'a settled expectation'" of death; and

     -"She may have thought she was going to die and have said so to her nurse, but [her statement, "You will get me well, won't you?] was consistent with hope."

While the articles on the Washington case don't set forth the specific facts of Clark's hospitalization, I would have to imagine that the Maryland judge came to a similar conclusion:  while Clark may have had a strong belief that he was going to die, unless he lacked any hope of recovery, his communications with his mother could not constitute dying declarations.



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