EvidenceProf Blog

Power Of Attorney: Court Of Appeals Of Minnesota Finds Attorney's Statements Were Adoptive/Authorized Admissions

Similar to its federal counterpart, Minnesota Rule of Evidence 801(d)(2)(B) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth...

Meanwhile, similar to its federal counterpart, Minnesota Rule of Evidence 801(d)(2)(C) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a person authorized by the party to make a statement concerning the subject....

So, let's say that a defendant is interrogated at police headquarters with his attorney present. And let's say that the attorney tells the sergeant that the defendant does not wish to speak to the sergeant but does want to present information helpful to the investigator through the attorney. Are the attorney's ensuing statements adoptive admissions pursuant to Rule 801(d)(2)(B) and/or authorized admissions pursuant to Rule 801(d)(2)(C)? According to the recent opinion of the Court of Appeals of Minnesota in State v. Willis, 2012 WL 5896752 (Minn.App. 2012), the answer is yes.

In Willis, Julius Willis, Jr. appealed from his conviction for second-degree felony murder. After Willis allegedly committed the crime charged along with T.M., the two men

appeared at police headquarters with attorney Miller. A police sergeant read [Willis] his Miranda warning. Miller stated that [Willis] did "not wish to speak to [the sergeant]," but was there to "cooperate" and to "try to present information [that is] helpful to [the] investigation through [Miller]." Miller then responded on [Willis]'s behalf to the sergeant's questions.

At Willis's ensuing trial, the trial court allowed the prosecution to admit Miller's responses, deeming that adoptive admissions that were admissible against Willis pursuant to Minnesota Rule of Evidence 801(d)(2)(B) and/or authorized admissions that were admissible against Willis pursuant to Minnesota Rule of Evidence 801(d)(2)(C).

After he was convicted, Willis appealed, claiming, inter alia, that this ruling was erroneous. The Court of Appeals of Minnesota disagreed, concluding that

The record supports the district court's rulings that appellant adopted and authorized Miller's statements. First, Miller stated that appellant was there to cooperate with and to aid the officers in their investigation. Appellant did not disagree with this statement, nor did he disagree with or correct any other of Miller's statements. Second, appellant was present during the entire interview and actively conversed with Miller. There are several instances when appellant and Miller consulted prior to Miller responding to a question. Appellant and Miller consulted privately before Miller responded to the sergeant's inquiries about whether appellant had any injuries, where the weapon was located, and whether appellant was wearing the shirt he wore the night before. Thus, there were frequent whispered conversations between appellant and Miller before or after Miller spoke on appellant's behalf. Finally, Miller stated that appellant and T.M. must have offended a large group of people, and then consulted privately with appellant before offering details about the confrontation. Miller stated that appellant and T.M. had been confronted and "boxed" in by more than five people, that appellant acted in self-defense, and that L.F. ran into the knife. Thus, appellant used the interview as an opportunity to establish a defense and intended that the sergeant rely on his statements. The district court did not abuse its discretion in admitting these statements.

I partially agree. Generally, an adoptive admission would involve an individual adopting someone else's statement after it was made. And while there can be adoption through silence, that generally wouldn't be the case when a sergeant is present because what was WIllis to do if he disagreed with what his attorney said? Conversely, an authorized admission would generally involve an individual authorizing someone to speak on his behalf before the statement is made. Therefore, I think that the attorney's statements were clearly authorized admissions but not so clearly adoptive admissions.

-CM

Doctor, Doctor, Give Me The News, I've Got A Bad Case: Supreme Court Of Tennessee Opinion Addresses Intricacies Of Rule 803(4)

Yesterday, I was talking to Derek Black and Claire Raj when we came upon the topic of Federal Rule of Evidence 803(4), which provides an exception to the rule against hearsay for

A statement that:  

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Part of our discussion involved the proper recipients of such statements. Obviously Rule 803(4) covers statements to a doctor, and the score is the same for statements made to a nurse. But what about statements made to an orderly or administrative personnel? Let's take a lot at the opinion of the Supreme Court of Tennessee in State v. McLeod, 937 S.W.2d 867 (Tenn. 1996), which answers this question, explains a key distinction between Tennessee Rule of Evidence 803(4) and its federal counterpart, and really digs into the nitty gritty of this hearsay exception.

In McLeod, the court addressed a consolidated appeal, which centered its

attention on the broad, growing problem in child abuse cases of the admissibility of statements made by children during the course of a medical examination. The precise difficulty arises in attempting to apply evidentiary rules drafted with adults in mind to cases involving children. Problems notwithstanding, we must achieve a balance that fosters the important governmental interest in protecting children while maintaining fundamental fairness.

The rationale for Rule 803(4) is two fold: (1) "Courts have reasoned that patients seeking medical assistance are strongly motivated to be truthful because accurate diagnosis and effective treatment often depend, in part, upon what patients tell health care providers;" and (2) "if physicians or other medical personnel rely upon the statement in diagnosing and treating the patient, then the statement should be sufficiently trustworthy to be admissible in a court of law."

As the McLeod court noted, the problem with applying Rule 803(4) to statements by children is that these rationales become "questionable when the patient is a child because children may not be able to understand the need to be truthful in the medical setting." Courts thus have adopted three different approaches:

(1) "Some jurisdictions require the child-declarant to show knowledge of the motive for the treatment."

(2) "Other jurisdictions require that the declarant have a motive for making the statement surrounding the treatment but allow such motive to be inferred or presumed."

(3) "A third group of jurisdictions does not require a specific showing of motive; rather, they inquire whether the subject-matter of the declarant's statement was reasonably pertinent to diagnosis or treatment."

The Tennessee Supremes then seemingly created a fourth approach, concluding that

Courts should not presume that statements by a child to a medical services provider are untrustworthy merely because there is disputable evidence of the child's motivation to be truthful. Rather, the admissibility decision should be based upon a thorough examination of all of the circumstances surrounding the statement.

In dicta, the court also addressed two other issues. First, the court noted that 

Commentators have also suggested that the Rule extends to other medical professionals and employees such as ambulance attendants, orderlies, hospital attendants, clerks, and administrative personnel. Neil P. Cohen et al., Tennessee Law on Evidence § 803(4).6 (3d ed.1995). However, in State v. Barone, 852 S.W.2d 216 (Tenn.1993), we declined to apply Rule 803(4) to statements made to psychologists.

It seems that many other courts have agreed with this first conclusion, but I am aware of several courts that have disagreed with the conclusion that Rule 803(4) doesn't apply to statements made to psychologists.

Second, the court noted that Tennessee Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis and treatment describing medical history; past or present symptoms, pain, or sensations; or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis and treatment. (emphasis added)

So, how does Tennessee's rule, covering statements made for purposes of "diagnosis and treatment" differ from the federal rule, which covers statements made for purposes of "diagnosis or treatment." According to the Advisory Committee Note to the Tennessee rule,

The proposal continues the Tennessee position of limiting declarations of past physical condition to those made to treating doctors. See Gulf Refining Co. v. Frazier, 15 Tenn. App. 662, 688-95 (1932). The declaration must be for both diagnosis and treatment. 

When we look at the opinion in Frazier, we can see the logic of the Tennessee Rule. According to the Frazier court, "where a physician examines an injured person for the express purpose of testifying as to his physical condition, even declarations of present pain made by the patient to the physician have been held inadmissible." In other words, under the Tennessee rule, a statement by a patient to a doctor for purposes of diagnosis and treatment is admissible, but a statement by a litigant to a doctor for purposes of diagnosis and testimony is inadmissible.

-CM

Unauthorized Transfer, Take 6: Second Circuit Applies Transferred Intent Doctrine Of Forfeiture By Wrongdoing

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for 

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

The opinion of the Second Circuit in United States v. Stewart, 485 F.3d 666 (2nd Cir. 2007), provides yet another example of what I call the transferred intent doctrine of forfeiture by wrongdoing, with the Second Circuit finding that a defendant's intent to render a witness available at one trial transferring to another trial.

In Stewart, Humphrey Stewart was incarcerated and facing a trial in state court based upon an assault charge. Robert Thompson (a/k/a "Ragga") was the alleged victim of this assault, with Stewart allegedly shooting him several times. While Ragga survived this shooting, he was later killed in a drive-by-shooting, with his killer being Emile Dixon. Before this second shooting, Ragga had identified Stewart as the person who initially shot him.

Stewart was later charged with several crimes, including, inter alia, conspiracy to commit murder based upon evidence that he directed Dixon to kill Ragga. At Stewart's federal prosecution, the goverment introduced Ragga's statements identifying Stewart as his shooter pursuant to Federal Rule of Evidence 804(b)(6).

After he was convicted, Stewart appealed, claiming, inter alia, that Rule 804(b)(6) was inapplicable because, even if he directed Dixon to kill Ragga, he did so to prevent him from testifying at a different trial -- the assault trial. The Second Circuit disagreed, finding

that the forfeiture-by-wrongdoing principle made the testimony as to Ragga's statements admissible at Stewart's trial on the present federal charges even though Stewart's efforts had been focused on preventing Ragga from testifying at a different trial, to wit, Stewart's state trial for assault, rather than the trial in the present federal case (which had not yet been initiated). "The text of Rule 804(b)(6) requires only that the defendant intend to render the declarant unavailable 'as a witness.' The text does not require that the declarant would otherwise be a witness at any particular trial.... A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding."

-CM

The Statement Doesn't Speak For Itself: Central District Of California Finds Statement Itself Not Enough To Trigger Forfeiture By Wrongdoing

Federal Rule of Evidence 801(d)(2)(C)-(E) provides that

A statement that meets the following conditions is not hearsay:....

The statement is offered against an opposing party and:....

(C) was made by a person whom the party authorized to make a statement on the subject;  

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or  

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Rule 801 then goes on to provide that

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

For instance, assume that Carl says to Fred, "Dan and I have agreed to rob the bank on State Street. WIll you drive the getaway car?" If the prosecution seeks to introduce this statement as a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), Carl's statement must be considered but does not by itself establish that he is Dan's co-conspirator. Instead, the prosecution would have to prove that conspiracy through some other evidence.

So, does similar logic apply to the doctrine of forfeiture by wrongdoing? According to the recent opinion of the United States District Court for the Central District of California in U.S. v. $1,026,781.61 in funds from Florida Capital Bank, 2012 WL 5878379 (C.D.Cal. 2012), the answer is "yes."

The proceedings in the case "relate[d] to the Government's claim that Lonnie Kocontes murdered Micki Kanesaki during a Mediterranean cruise the couple took in May 2006." To prove this murder, the prosecution sought to introduce an e-mail from Kanesaki to Sue White, Kanesaki's former co-worker at the law firm where she was working when she met Kocontes.

In the email, Kanesaki stated she was unhappy with Kocontes, and then on the subject of finances, she wrote:  

After the past few weeks of arguing with LK [Kocontes], I have decided to cut-off his access to my parents' money. He even tries to control their money. You know they asked me to hold on to it and I can use it for safer investments. They know that the amount of money they have may not last for the rest of their lives, so they moved into that retirement place because they don't want to burden me-and asked me to hold/utilized the money for their and my benefit. I'll be dammed if I'm going to let LK tell me how I should invest/spend my parents' money. He tells me, we should invest it so we can have more money when we retire. Yeah right, you mean so he can have more money and access to my parents' money? ? ?!!!  

I really understand why you and many others keep their money separate from their spouses. Money and infidelity = No. 1 reasons for marriage dissolution.  

You know, I can't even buy any big ticket items because LK doesn't want to spend the money-and we can afford it and we would be paying cash. Spending the money doesn't affect our financial ability to save for our future, or meet our expenses in life. He just cant part with the because it would decrease the balance. I have to put up a big fights/arguments before I can buy anything for my house. The fighting takes all the fun out of my home projects...."

The prosecution tried to admit this e-mail under the doctrine of forfeiture by wrongdoing, and I'm not sure how the e-mail could have been introduced in compliance with the Supreme Court's opinion in Giles v. California. But that wasn't the issue flagged by the Central District of California. Instead, the court found that

the question of whether Kanesaki's email can be admitted is the same as the ultimate issue of this forfeiture action-whether the Government can establish, by a preponderance of the evidence, that Kocontes murdered Kanesaki. The Government may not use the circular argument that Kanesaki's email is evidence that Kocontes murdered Kanesaki, and that the email is admissible because of the same.

The facts in this case are a bit strange, but I think that what the court is saying is as follows: Assume that Dan is on trial for robbery. WIlliam is a prospective witness against Dan. William is shot and either (a) before the shooting had said, "I think Dan is going to kill me," or (b) after the shooting says, "Dan shot me." In essence, what I think that the court is saying is that William's statement, while some evidence that Dan shot William to prevent him from testifying, is not sufficient, in and of itself, to trigger application of the doctrine of forfeiture by wrongdoing. Instead, the prosecution would have to present some other evidence to trigger application of forfeiture by wrongdoing.

-CM

Unauthorized Transfer Redux, Part 2: The Negative Component Of Forfeiture By Wrongdoing & Counter-Factual Thinking

As I noted a few days ago, there has been a debate on the Evidence Professor listserv regarding what a party has to prove to trigger application of the doctrine of forfeiture by wrongdoing. My position remains that a party merely has to prove intent + causation. For example, the prosecution would have to prove that a defendant engaged in wrongdoing that (a) was intended to render a prospective witness unavailable, and (b) caused the prospective witness to be unavailable. The opposing school of thought is that a party has to prove intent + causation + benefit. For example, the prosecution would have to prove that a defendant engaged in wrongdoing that (a) was intended to render a prospective witness unavailable; (b) caused the prospective witness to be unavailable; and (c) would benefit from the wrongdoing unless forfeiture applied. Under this analysis, the court would engage in counter-factual thinking to determine whether (c) has been proven. And, under this analysis, forfeiture by wrongdoing would not apply to a defendant who kills a prospective witness to prevent him from testifying at an original trial (e.g., a robbery trial) and who is now on trial for murdering the prospective witness. Why? Without the killing, there could be no murder trial, meaning that the defendant could not derive a benefit from his wrongdoing because there could not even be a murder trial without that wrongdoing.

As I have noted before, however, forfeiture by wrongdoing has both a positive and negative component. And, by looking at the negative component, I think we can again see why it doesn't make sense to engage in counter-factual thinking.

The negative component of forfeiture by wrongdoing is contained in Federal Rule of Evidence 804(a). Rule 804(a) sets forth situations in which a declarant is "unavailabile," with such unavailability being required for application of the hearsay exceptions contained in Federal Rule of Evidence 804(b). Rule 804(a), however, clearly states that

this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

I imagine that this portion of Rule 804(a) predominantly applies in two factual scenarios. Assume that a declarant makes a statement that would qualify for admission at trial if the declarant were unavailable. Let's say, for instance, that Dan is charged with murdering Vince, and William says to a friend, "I was the one who killed Vince." If William were unavailable at trial, this statement would qualify as a statement against interest under Federal Rule of Evidence 804(b)(3) if there were corroborating circumstances, and you have to imagine that William would be unavailable based upon invocation of the Fifth Amendment privilege against self-incrimination.

In a first scenario, assume that Dan thinks that William has changed his tune but is wrong in this thinking. So, Dan kills William so that he can introduce his statement as a statement against interest at trial when, in fact, he could have done this without killing William because William in fact had not changed his tune. I think that most looking at this hypothetical would think that this is a classic case where the negative component of forfeiture by wrongdoing should apply. And, under an intent + causation analysis, it would apply. But if we add benefit to the equation and engage in counter-factual thinking, it would not. Dan's assumption was wrong, and he could have introduced WIlliam's statement as a statement against interest at trial even without engaging in wrongdoing. Therefore, there would be no need to apply forfeiture because Dan would not have benefited from his wrongdoing based on application of counter-factual thinking.

In the second factual scenario, Dan correctly thinks that WIlliam has changed his tune. While WIlliam initially says that he killed Vince, he later tells the police that he did not kill Vince. Dan, wanting to present the defense at trial that WIlliam was the perpetrator of the crime, kills William. I think that most looking at this case would think that this is a case where both the positive and negative components of forfeiture by wrongdoing should apply. On the one hand, Dan has forfeited his Confrontation Clause and hearsay objections to the admission of William's statement to the police. And, on the other hand, Dan has forfeited the right to present Dan's confession to his friend. Moreover, this is what would currently happen based upon application of the doctrine of forfeiture by wrongdoing, and it makes sense under an intent + causation analysis.

But what if we require benefit and engage in counter-factual thinking? Well, if we engage in counter-factual thinking, the result in most cases would be that both the prosecution and the defense are on equal grounds if Dan does not engage in wrongdoing. There are many permutations of the counter-factual, but here is one: If Dan doesn't kill William, you could easily see the prosecution not wanting to call WIlliam. He never directly incriminated Dan, and, in one of his statements, he admitted that he committed the crime charged. Meanwhile, based upon William's shifting story, there likely aren't sufficient corroborating circumstances for Dan to admit William's initial confession under Federal Rule of Evidence 804(b)(3) (see, e.g., this post from earlier this month). In other words, neither side is helped or harmed by either statement in the counter-factual.

But now consider what happens based upon application of the positive and negative components of forfeiture by wrongdoing. The prosecution gets the benefit of William's second statement, but the defense does not get the benefit of William's first statement. Again, I think that this is the correct result, but the result doesn't make sense if forfeiture is about eliminating the benefit that a party would derive from its wrongdoing. But if the goal of forfeiture is to deter wrongdoing directed towards undermining the integrity of the trial process, it makes sense to apply both the positive and negative components of forfeiture by wrongdoing.

-CM

Unauthorized Transfer, Again: Court Of Appeals Of Indiana Applies Transferred Intent Doctrine Of Forfeiture By Wrongdoing

The question of whether there is a transferred intent doctrine of forfeiture by wrongdoing has occupied this blog quite a bit over the last few months. The series of posts on this topic was prompted by the Drew Peterson case, with the question there being whether Drew Peterson killing two ex-wives to prevent them from testifying at existing or hypothetical future divorce proceedings could lead to application of forfeiture by wrongdoing at his murder trial for killing one of the ex-wives. The answer to that question, at least according to the Illinois courts, was "yes," and now, Illinois' neighbor to the east has reached a similar conclusion based upon similar facts in White v. State, 2012 WL 5875681 (Ind.App. 2012).

In White, Tyler White

and Amy Meyer began dating in 2005, got married, and, in June 2008, Amy gave birth to a son, M.W. White was verbally abusive to Amy throughout their relationship, and the couple separated shortly after M.W.'s birth. In July, Amy moved in with her boyfriend, Lee Flueckiger. White filed for divorce shortly thereafter..

White and Amy shared custody of M.W. pending the provisional custody hearing, which was scheduled for October 28, 2009. White continued his verbal abuse of Amy, and he and Amy frequently argued regarding the parenting time schedule. Amy began using her cell phone to record the custody exchanges, and she intended to use those recordings as evidence against White at the provisional custody hearing. During one exchange when Flueckiger was present, White "pointed his finger at [Flueckiger] like he was shooting a gun."...In March 2009, White purchased a handgun, and he carried that gun on his person most of the time thereafter.  

On October 27, one day before the provisional custody hearing, Amy arrived at White's parents' house, where White was living, to pick up M.W. White asked Amy whether he could keep M.W. for an additional thirty minutes, but Amy denied that request and told White that she wanted to leave with M.W. immediately. An argument ensued, and White shot Amy twice in the abdomen.  

Amy died from the gunshot wounds, and White was thereafter charged with her murder. At White's murder trial, the prosecution introduced statements made by Amy pursuant to the doctrine of forfeiture by wrongdoing.

After he was convicted, White appealed, claiming that the doctrine of forfeiture by wrongdoing was inapplicable. In response, the Court of Appeals of Indiana found that

The State asserted two arguments on this issue at the admissibility hearing. First, the State alleged that White killed Amy to prevent her from testifying at his murder trial. Second, the State alleged that White killed Amy to prevent her from testifying at the provisional custody hearing, which was scheduled for the day after the shooting. We hold that the preponderance of the evidence supports a determination that White killed Amy to prevent her from testifying at the provisional custody hearing. Accordingly, we need not address the State's first theory.

The court then explained its reasoning as follows:

In support of his contention that White did not kill Amy to prevent her from testifying at the provisional custody hearing, White asserts that such a theory "ma[kes] no sense."...White points out that the hearing was "provisional" and would not have been the final custody determination....And White states that there was no evidence that he had wanted to continue the hearing. Finally, White maintains that "unlike an essential witness in a criminal case, [White] could not automatically prevail in the provisional custody hearing by killing Amy. To the contrary, shooting [M.W.]'s mother would almost certainly result in [M.W.'s] placement somewhere else."...We are not persuaded.  

The State presented ample evidence that White and Amy had fought bitterly over custody of M.W. since their separation. Immediately preceding the shooting, White had requested an additional thirty minutes of parenting time with M.W., which Amy denied. An argument ensued, which ended with White shooting and killing Amy. In her petition for a provisional custody order, Amy had requested full custody of M.W. pending the final decree. At the 804(b)(5) hearing, the State presented evidence that Amy had been using her cell phone to record custody exchanges to use at the provisional custody hearing and that White was aware of those recordings. Moreover, during his statement to police after the shooting, White admitted that he had "mocked" Amy just prior to the shooting because she had frequently pointed out his conduct that would "look bad" for him "in court."...And the State maintains that, had White prevailed in his claim of self-defense, White would likely have been granted full custody of M.W.

Thus, a preponderance of the evidence supports a reasonable inference that White's intent in killing Amy was, at least in part, to keep her from testifying against him at the provisional custody hearing, which was to take place the next day. The evidence shows that the couple's custody battle was the source of the ongoing conflict between them. The fact that the conflict escalated one day before a custody hearing is substantial evidence of White's intent when he shot Amy. Contrary to White's assertion on appeal, it is entirely plausible, if not likely, that had White succeeded in his self-defense to the murder charge, White, as the only surviving biological parent, would have been granted sole custody of M.W. Under Evidence Rule 804(b)(5), because White was at least partially motivated to kill Amy to prevent her from testifying at the provisional custody hearing, the trial court properly allowed the challenged hearsay evidence.

-CM

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.

-CM