EvidenceProf Blog

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

Wednesday, April 16, 2008

I Drink Your Milkshake!: Milkshake Murderer's Attorney Argues Hong Kong Court Improperly Allowed Hearsay Testimony

A strange case from Hong Kong reveals that the region is dealing with the same evidentiary issue set to be heard soon by the United States Supreme Court.  In 2003, American housewife Nancy Kissel allegedly fixed her husband a strawberry milkshake laced with the "date-rape drug" Rohypnol in their luxury Hong Kong apartment.  She then allegedly bashed in his head with a metal ornament, wrapped his dead body in a carpet, and ordered a maintenance crew to haul it away to a storage space.  At her 2005 trial, Kissel claimed that she acted in self-defense, but the court disbelieved her, and she was convicted of murder and sentenced to life imprisonment.  Part of the evidence used to convict Kissel consisted of the testimony of a witness who claimed that the husband told him soon before his death that he thought his wife was trying to kill him.  Now, Kissel's attorney, Gerald McCoy, has claimed, inter alia, that the husband's statements were inadmissible hearsay and that the trial court thus erred in allowing the witness to testify about them, necessitating a reversal.

If all of this sounds somewhat familiar to some of you, it might be because you watched 48 Hours Mystery last night, which dealt with the Mark Jensen case, which I have blogged about before (here, here, and here).  That case involved the death of Mark Jensen's wife and the question of whether a note that the wife gave to a neighbor indicating that Mark should be the first suspect if she died was admissible in his murder trial pursuant to the forfeiture by wrongdoing doctrine, an exception to the rule against hearsay.  The Wisconsin court held that the letter was admissible, but other courts have construed the forfeiture by wrongdoing doctrine more narrowly, finding it inapplicable to the statements of a murder victim in the defendant's trial for that victim's murder.  The United States Supreme Court is set to soon decide whether the doctrine can be given the broader reading when it hears Giles v. California.

It will be interesting to see whether the Hong Kong court finds that the husband's statements were inadmissible hearsay or whether they met an exception similar to the forfeiture by wrongdoing doctrine.  I don't have much familiarity with Hong Kong law, but according to Anthony Upham, Hong Kong Evidence Casebook, 35 Hong Kong L.J. 529, 530 (2005), Hong Kong does have a rule against hearsay which, like the American rule against hearsay, is subject to several exceptions.



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