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Univ. of South Carolina School of Law

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Wednesday, February 27, 2013

Dying Declarations?: Should Courts Apply a Rule 403 Analysis to Questionable Hearsay Exceptions?

Similar to its federal counterpartNew Jersey Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness because of death is admissible if it was made voluntarily and in good faith and while the declarant was conscious of declarant's impending death. 

And, similar to its federal counterpartNew Jersey Rule of Evidence 403 states that

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Many people criticize Rule 804(b)(2) because dying declarations are often made while the victim is in a hypoxic or anoxic state that can cause delirium, which would greatly undermine the reliability of the dying declarant's statement. The problem for defendants, however, is that Rule 804(b)(2) isn't going anywhere any time soon. So, what if a defendant claimed that a defendant that qualifies for admission under Rule 804(b)(2) should still be excluded under Rule 403? Let's take a look at the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Bacon-Vaughters, 2013 WL 656248 (N.J.Super.A.D. 2013).

In Bacon-Vaughters, Kenneth M. Bacon–Vaughters was convicted of first-degree felony murder, first-degree armed robbery, second-degree possession of a weapon for an unlawful purpose, and second-degree conspiracy to commit armed robbery. After he was convicted, Bacon-Vaughters appealed, claiming, inter alia, the the trial court erred in admitting a dying declaration made by the victim, Nathaniel Wiggins, to Patrolman Brett Paulus. Specifically,

When Paulus first saw Wiggins on the floor of his kitchen, Wiggins told the officer, "Oh, God, I'm dying." Without any questioning or prompting by Paulus, he said, "Kenny Mike shot me."

Bacon-Vaughters did not qualify that these statements failed to qualify for admission under Rule 804(b)(2) because they clearly did. Instead, he alleged that the probative value of these statements "was outweighed by [their] prejudice, i.e., that the statements should have been deemed inadmissible under Rule 403. So, how did the court respond?  It found that

Wiggins, who was mortally wounded and died a few hours later, was clearly conscious of his impending death and the statement "Kenny Mike shot me" is a textbook example of a dying declaration.

And? This answers the question of whether the statements were admissible under Rule 804(b)(2), but every piece of evidence or testimony must also satisfy Rule 403. It seems to me that the court assumed that satisfaction of Rule 804(b)(2) made the statements admissible without conducting any independent analysis of Rule 403.

This seems clearly wrong, and it raises the question of what happens if a party properly raises the issue and the court addresses it? A litigant will get nowhere by claiming that a hearsay exception allows for the admission of unreliable evidence that is lacking in probative value. But how far should and/or will he get if he raises these issues under Rule 403?

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/02/similar-to-its-federal-counterpartnew-jersey-rule-of-evidence-804b2provides-an-exception-to-the-rule-against-hearsay.html

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