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Univ. of South Carolina School of Law

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Saturday, December 31, 2011

The Big C: Supreme Court Of Minnesota Finds Statements By Cancer-Ridden Declarant Weren't Dying Declarations

Like its federal counterpartMinnesota Rule of Evidence 804(b)(2) 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, let's say that a declarant makes a statement while terminally ill with cancer, but the statement does not concern his cancer. Does the statement qualify as a dying declaration? According to the recent opinion of the Supreme Court of Minnesota in Roby v. State, 2011 WL 6783876 (Minn. 2011), the answer is "no."

In Roby, Gary Roby was convicted of aiding and abetting the crimes of first-degree premeditated murder, first-degree murder while committing aggravated robbery, and second-degree intentional murder for his role in the shooting death of Marlizza McIntyre. After he was convicted and unsuccessfully appealed his conviction, Roby filed several petitions for postconviction relief.

One of these petitions sought relief based upon the affidavit of C.H., one of Roby's close relatives. AT Roby's initial trial, his brother, C.T., testified, inter alia, that Roby brought him the murder weapon after the shooting. According to C.H.'s affidavit, this testimony was a lie. Roby thus claimed that the "affidavit would make a court 'reasonably well-satisfied' that C.T.'s testimony at trial was false, and that without C.T.'s false testimony, the jury might have reached a different conclusion."

The Supreme Court of Minnesota disagreed, concluding that

The evidence in C.H.'s affidavit fails the newly discovered evidence test in the statute because it cannot, as a matter of law, establish Roby's innocence by clear and convincing evidence....This is so because C.T.'s statements to C.H. are inadmissible hearsay, and C.T. is dead. Roby, however, argues that C.T.'s statements would be admissible because he made the statement in belief of his impending death. While C.H. states that C.T. made the statements in the affidavit to her while he was dying of colon cancer, the statements do not constitute "dying declarations" because they do not "[concern] the cause or circumstances of what the declarant believed to be impending death." See Minn.R. Evid. 804(b)(2)....Because C.T.'s statements are inadmissible, C.H.'s affidavit cannot prove Roby's innocence by clear and convincing evidence.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/12/like-its-federal-counterpartminnesota-rule-of-evidence-804b2provides-an-exception-to-the-rule-against-hearsay-in-a-pr.html

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