EvidenceProf Blog

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

Sunday, November 25, 2012

Until My Dying Day: Dying Declarations & Counter-Factual Analysis

In yesterday's post, I gave the following hypothetical:

Dan robs Vince, with William witnessing the crime. Vince goes to the police and tells them that Dan robbed him. Dan is arrested and charged with robbery. Dan, knowing that William could be a witness against him, attacks William. William is taken to the hospital and, after hours of treatment, is in stable condition. He speaks with Police Officer Peters and tells him, "I'll be honest with you. I hate Vince, and I was going to take the witness stand and say that it wasn't Dan who robbed him just to spite Vince. But after what Dan did to me, there's no way I'm going to lie. I saw Dan rob Vince, and Dan tried to kill me today because of what I saw." Later that night, William's condition worsens, and he dies. So, at Dan's robbery trial, should William's statement to Peters be admissible?

My argument was that the statement should be admissible under the doctrine of forfeiture by wrongdoing, with the hypothetical illustrating why I think that courts should not engage in any type of counter-factual thinking when deciding whether the doctrine applies. In the hypothetical, I was careful to have WIlliam making his statement while he was "in stable condition." If WIlliam were in critical condition when he made the statement, the statement could have qualified as a dying declaration under Federal Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

The interesting thing about this dying declaration exception is that courts actually do engage in a counter-factual analysis to determine whether it applies.

The following comes from my forthcoming article, Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed,

[D]ying declarations are admitted as a substitute for the testimony that the victim would have offered at trial had he not died.  If a victim thinks that he is dying and tells medical personnel, "[Defendant] shot me," the statement would be admissible as a dying declaration at the defendant’s murder trial because the victim could have made the same statement on the witness stand if he survived and the defendant were charged with attempted murder.  In other words, the evidentiary need for a dying declaration exists because the victim died and could not testify at trial, and Rule 804(b)(2) puts both parties in the same position they would have occupied had the victim survived.

What this means is that a purported dying declaration is inadmissible when the victim could not have repeated the declaration on the witness stand had he survived.  For example, in State v. Motley, Vernon Motley was charged with murder after allegedly shooting and killing his ex-girlfriend’s new boyfriend.  Motley’s ex-girlfriend was Shaka Jones, and, as the victim was dying, a witness asked him what happened, prompting him to respond, "V shot me."  When the witness then asked the victim why Motley shot him, the victim responded, "Over Shaka."  At trial, the witness repeated both of the victim’s statements.

After he was convicted, Motley appealed, claiming, inter alia, that the second statement was improperly admitted because "the victim’s dying declaration should not have been allowed to include speculation as to the defendant's motive."  The Court of Criminal Appeals of Tennessee found that the issue was governed by State v. Lewis, in which the Supreme Court of Tennessee held that "'[b]ecause a dying declaration is essentially a substitute for the testimony of the victim, the admissible evidence is limited to that to which the victim could have testified if present….'"  Under this test, the court in Motley found that the victim’s second statement was improperly admitted because it could not "conclude that the victim's opinion of the defendant’s motive for the shooting was admissible under the Lewis standard,i.e., that the victim would have been able to testify to such if present at the trial."

I think this makes sense. Hearsay is generally inadmissible because it is unreliable. Exceptions to the rule against hearsay, such as the dying declaration exception, exist because statements that satisfy their elements are thought to be reliable. Dying declarations are generally thought to be reliable because the speaker doesn't want to die with a lie on his lips. But if the speaker's dying words are mere speculation about the motivations guiding his shooter, words that he could not have uttered on the witness stand, there is no reason for the court to admit them under a hearsay exception.

Conversely, the doctrine of forfeiture by wrongdoing is not premised in the reliability of the declarant's statements. Instead, it is based upon the purpose driven wrongdoing of a party aimed at undermining the integrity of the trial process. Therefore, there is no need to engage in counter-factual anlysis to determine whether it applies.



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