EvidenceProf Blog

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

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Friday, March 8, 2013

As We Lay Dying, Take 2: The Admissibility of Dying Declarations In Multiple Victim Situations

Following up yesterday's post about the admissibility of dying declarations in multiple victim situations, today let's look at the opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Key, 407 N.E.2d 327 (Mass. 1980).

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March 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

As We Lay Dying: The Admissibility of Dying Declarations In Multiple Victim Situations

In a comment on my post from a few days ago, Fred Moss asked:

How about this hypo? A is on trial for the murder of B by shooting him. A shot several times in killing B. C -- the declarant -- was hit by one of the shots. As he lay on the street he tells the EMT, "I hear the wings of the Angel of Death hovering over me. Tell my wife I love her. And, by the way, I was shot by A as he was shooting at B." C either dies or cannot testify at A's trial because he's in a coma. Under the FRE, the statement is admissible at A's trial, no?

I think that C's statement would be admissible in this hypothetical, and that belief is partially confirmed by the opinion of the Supreme Court of Nevada in Maresca v. State, 748 P.2d 3 (Nev. 1987).

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March 7, 2013 | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 6, 2013

There's Just One More Thing: Why Do Excited Utterances & Dying Declarations Have To Relate to Their Cause?

Federal Rule of Evidence 804(b)(2) 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.

Meanwhile, Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

I have always wondered about the same limitation that applies in each of these Rules. A statement qualifies as a dying declaration under Rule 804(b)(2) only if it was "made about [the] cause or circumstances" of what the speaker believes to be his impending death. And a statement only qualifies as an excited utterance under Rule 803(2) if it "relat[ed] to [the] startling event or condition. Why?

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March 6, 2013 | Permalink | Comments (3) | TrackBack (0)

Tuesday, March 5, 2013

Suicide Solution?: Supreme Court of West Virginia Finds Suicide by Witness for the Prosecution to be a Dying Declaration

Federal Rule of Evidence 804(b)(2) 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.

A student in my Evidence class and the esteemed Fred Moss both raised the same question with regard to this "dying declaration" hearsay exception today: Can it apply to a declarant who is not the homicide victim? Here is what Fred Moss wrote in a comment to yesterday's post:

We always believe, I think, that the declarant in the homicide case must be the victim of the homicide, that is, the person the defendant is accused of killing. But the rule refers to "the declarant," not "the victim," so they can be -- theoretically -- different people.

How about this hypo? A is on trial for the murder of B by shooting him. A shot several times in killing B. C -- the declarant -- was hit by one of the shots. As he lay on the street he tells the EMT, "I hear the wings of the Angel of Death hovering over me. Tell my wife I love her. And, by the way, I was shot by A as he was shooting at B." C either dies or cannot testify at A's trial because he's in a coma. Under the FRE, the statement is admissible at A's trial, no?

I think that this analysis is correct, which takes me to the strange case of State v. Satterfield, 457 S.E.2d 440 (W.Va. 1995).

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March 5, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, March 4, 2013

Die Another Day: Does the Dying Declarations Exception Apply in Attempted Murder Cases?

Federal Rule of Evidence 804(b)(2) 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.

When I teach Rule 804(b)(2), students often ask whether this "dying declaration" exception applies in attempted murder cases. I always answer that the answer is likely "no" because homicide means homicide: the killing of one human being by another human being. That said, I've never come across a case on the issue, and I'm not sure whether one exists. Why? Well, consider the complicated fact pattern that would have to exist for a prosecutor to try to admit a dying declaration in an attempted murder trial. First, the victim would have to have reason to think that he was about to die when he made the statement but then make a miraculous recovery. Second, for Rule 804(b)(2) to potentially apply, the victim would have to be unavailable to testify at the attempted murder trial, meaning that the victim would need to miraculously survive the defendant's act but then become unavailable through some independent cause. 

So, is there any reason beyond speculation to believe that Federal Rule of Evidence 804(b)(2) does not apply in attempted murder cases? Let's take a look at Pennsylvania Rule of Evidence 804(b)(2).

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March 4, 2013 | Permalink | Comments (1) | TrackBack (0)