Sunday, May 15, 2011
Dead Again: Supreme Court Of Wisconsin Opinion Prompts Questions About Nature Of Dying Declaration Exception Under Common Law
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. As I have noted previously on this blog, however (see, e.g., here), the Court strongly implied that even testimonial dying declarations can be admitted without the defendant being previously able to cross-examine the declarant. At footnote 6 of its opinion in Crawford, the Court noted that
Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are....We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.
Later, in its opinion in Giles v. California, 554 U.S. 353 (2008), the Supreme Court noted that
We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted....The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.
Since Crawford, no state court has found that the admission of a testimonial dying declaration violated the Confrontation Clause, and the Supreme Court of Wisconsin recently joined these ranks with its opinion in State v. Beauchamp, 2011 WL 1681413 (Wis. 2011), holding:
We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. As the State notes, no published decision of any state court in the country has eliminated the dying declaration hearsay exception based on the reading of selected language of Crawford. We concur with the courts that have addressed this question after Crawford: a hearsay exception as long-standing, well-established and still necessary as this one, as indeed this case illustrates, cannot be lightly dismissed. Regardless of the religious justifications that have been articulated for dying declarations over the centuries, this hearsay exception is a crucial one, and it retains its vitality. We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder.
So, testimonial dying declarations can be admitted consistent with the Confrontation Clause because they were admitted under the common law. But what types of dying declarations were admitted under the common law? And which common law are we talking about? Moreover, what is the origin story of the dying declaration?
These are some of the questions addressed by University of Washington School of Law Professor Peter Nicolas in his terrific recent article, 'I’m Dying to Tell You What Happened': The Admissibility of Testimonial Dying Declarations Post-Crawford, 37 Hastings Const. L.Q. 487 (2010). But let's start with Beauchamp. In Beauchamp, the defendant claimed that the original justification for admitting dying declarations was religious: a declarant would not want to die with a lie on his lips and face eternal damnation. According to the defendant, this way of thinking was outmoded, meaning that dying declarations should be excluded because we live in "a society more secular than the one in which the exception originated."
The hearsay exception has sometimes been justified on the grounds that a dying person was presumed under the common law to have, due to commonly held religious beliefs concerning the afterlife, such a fear of dying without the opportunity to expiate a lie that the reliability of any statement made in those circumstances was deemed equivalent to that of sworn testimony. As one commentator noted, "The original premise of this assumption was that the fear of divine judgment for lying provided religious assurance that the dying person would speak the truth." As early as 1860, however, a treatise writer disputed the notion that the doctrine's underpinnings were religious:
[A dying declaration] is not received upon any other ground than that of necessity, in order to prevent murder going unpunished. What is said in the books about the situation of the declarant, he is being virtually under the most solemn sanction to speak the truth, is far from presenting the true ground of the admission....[T]he rule is no doubt based upon the presumption that in the majority of cases there will be no other equally satisfactory proof of the same facts. This presumption and the consequent probability of the crime going unpunished is unquestionably the chief ground of this exception in the law of Evidence.
Now, you may be asking yourself why the origin story of the dying declaration is important. Well, let's backtrack to Giles. As noted, in Giles, the Court held that there were two types of testimonial hearsay that were admitted at common law even though they were unconfronted. The first was the dying declaration. The second was the statement by a potential witness who was unavailable at trial due to the wrongdoing of a party (forfeiture by wrongdoing). And what the Court in Giles did was to explain the nature of this second exception under the common law. Specifically, the Court held that, under the common law, it was not enough that the party's wrongdoing caused the unavailability of the prospective witness at trial; instead, the party must have intended for his behavior to cause the unavailability for the prospective witness' statement to be admissible for him. Thus, states such as California and Wisconsin which applied the doctrine of forfeiture by wrongdoing without a finding of intent by a party had to limit the application of the doctrine.
This takes us back to Beauchamp. If the dying declaration exception is of religious origin, and courts under the common law only admitted dying declarations by religious declarants, then this would mean that testimonial dying declarations by atheists could not survive Confrontation Clause scrutiny after Crawford.
But Professor Nicolas doesn't see it that way. Instead, he notes that
At common law in both the United States and England and well into the twentieth century in the United States, a person who did not believe in a Supreme Being was deemed incompetent to testify as a witness based on the theory that without such a belief, the oath was meaningless (and, by extension, so was any testimony that the witness might give). Under this theory, if the deceased would have been "incompetent" to testify had he survived (due to, inter alia, the absence of religious belief), it followed that the declarant's dying declarations likewise should not be received into evidence and was thus inadmissible.
Yet rather than being an element of the dying declaration exception itself, this is best viewed as falling within a broader rule that dying declarations (and hearsay generally) are inadmissible under any circumstances in which the declarant himself would have been incompetent to testify had he appeared and testified as an ordinary witness. So construed, the Confrontation Clause should not be construed to require that the declarant satisfy the specific witness competency rules extant at common law. Rather, the declarant's dying declaration should be admissible so long as he would be competent to testify as an ordinary witness under the then-existing competency rules.
Interestingly enough, Professor Nicolas cites the aforementioned excerpt from the 1860 treatise for another purpose. That 1860 treatise was written by Judge Isaac F. Redfield, who took over for Simon Greenleaf, the previous author of the treatise. Professor Nicolas notes that
According to nearly all respected modern evidence treatises and numerous twentieth century judicial opinions and other reputable sources, early common law decisions (those through around 1800) did not, in fact, limit the admissibility of dying declarations to homicide cases in which the death of the declarant was the subject of the charge. Rather, so long as the declarant was dead and believed his death to be imminent when he made the statement, the statement could be admitted in any case, civil or criminal. Rather, it was only in the early 1800s that common law decisions in both the United States and England narrowed the exception's applicability to homicide cases in which the death of the declarant was the subject of the charge.
For instance, Federal Rule of Evidence 804(b)(2), the modern dying declaration exception, provides an exception to the rule against hearsay
In a prosecution for homicide or in a civil action or proceeding, [for] 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 impending death.
So, what led to the change? Well, as Professor Nicolas notes, John Henry Wigmore lays the blame at the feet of Judge Redfield, claiming that he created this homicide limitation out of cloth when he updated Greenleaf's treatise. Now, Professor Nicolas questions this conclusion, but whether WIgmore is right or wrong is not really the point.
According to Professor Nicolas, the point is that there is currently a lack of clarity of the exact nature of the dying declaration exception under the common law and that courts need to sort out its exact nature, just as the Court did with the doctrine of forfeiture by wrongdoing in Giles.
Interested readers can check out Professor Nicolas's article for his full analysis, and here I will simply post the first two paragraphs of his conclusion, which nicely lay out the issues that courts must address in this regard:
Assuming that the Supreme Court confirms that there exists a dying declaration exception to the Confrontation Clause, there are at least three additional constitutional questions for the Court to resolve. First, whether the exception can be invoked only in homicide cases (and, more narrowly, those in which the death of the declarant is the subject of the charge), or whether it can be invoked in other types of criminal cases as well. Second, whether it only encompasses statements concerning the cause or circumstances of the declarant's impending death (or what he believed to be his impending death), or whether it can be invoked to admit unrelated statements. Third, whether the declarant must die, or whether it suffices that he is merely unavailable.
The answers to each of these constitutional questions hinges upon how the Supreme Court resolves three additional issues: choosing among competing versions of history; choosing among competing points in history that matter (1791 versus 1868); and deciding whether to characterize the historical elements of the dying declaration exception in narrow or broad terms for Confrontation Clause purposes.