EvidenceProf Blog

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).

In Key, 

In the early morning hours of September 7, 1971, an explosion and fire occurred in the first floor apartment at 5 Cedar Street in Roxbury. Firefighters retrieved two men from the burning apartment. One had been found in the living room; the other, in the kitchen. Both men were severely burned. The hands and feet of both had been bound with wire. One had a metal and cloth gag in his mouth. The victims, Louis Fobbs and William Evans, were taken to Massachusetts General Hospital, where Evans died a few hours later and Fobbs, early in the morning of September 8.  

The core of the Commonwealth's case connecting the defendant with these deaths was a series of statements attributed to Fobbs. The first statement simply blamed the defendant; the next two added that the defendant had tied the two victims, poured gasoline on them, and set them afire; the last stated that "Keys" had a gun and had rolled up his sleeve to show Fobbs the "track marks" (injection marks) on his arm before he had blindfolded the two men and poured gasoline on them. The Commonwealth also presented the testimony of a neighbor who had heard an explosion and had seen a tall, slim, black man who wore brown pants and a tan jacket run down the street. One Claude James testified that he had driven down to Cape Cod on September 6, the day before the fire, with Fobbs, Evans, the defendant, and others, and that the defendant was then carrying a gun. He described Fobbs and Evans as a homosexual couple. He stated that he had seen the defendant on Tremont Street on September 9 or 10 with a bandaged arm.

After the defendant was convicted of murdering both Fobbs and Evans, he appealed, claiming, inter alia, "that Fobbs' dying declaration should not have been admitted as evidence of the murder of Evans."

In addressing this issue, the Supreme Judicial Court of Massachusetts noted that

Historically, the common law has admitted dying declarations only where the declarant's own death is the subject of the homicide indictment....At trial, defense counsel advanced the common law rule in an attempt to limit the jury's consideration of Fobbs' statements to the issue of Fobbs' homicide. The judge rejected that rule as "outlandish," and we agree with him.

Specifically, the court concluded that

Where multiple homicides result from one felonious act, the dying declaration of one victim should be admitted to prove the homicides of the other common victims....In admitting Fobbs' declarations to prove the murder of Fobbs, the judge recognized the probable trustworthiness of the proffered evidence. The declarations were not less trustworthy when offered to prove the murder of Evans. Commonsense justified the judge's ruling. There was no error.

-CM

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).

In Maresca, Joseph Maresca allegedly (1) shot and killed Vivian Grady and shot and (2) shot and nearly killed Dean Grady. 

Mr. Grady informed a paramedic at the scene that "Joe" had shot him and his wife. Approximately two hours later, Grady gave the police a statement in which he provided a detailed description of "Joe."

These two statements and two other statements were admitted at Maresca's trial for the murder of Vivian and the attempted murder of Dean. While Maresca did not object to the admission of these statements at trial, their admission later formed the basis for his appeal.

In addressing this issue, the Supreme Court of Nevada looked at both NRS 315(1), which provides that

1.  A statement is not excluded by the hearsay rule if:

(a) Its nature and the special circumstances under which it was made offer strong assurances of accuracy; and

(b) The declarant is unavailable as a witness.

and NRS 51.335, which provides that

A statement made by a declarant while believing that his or her death was imminent is not inadmissible under the hearsay rule if the declarant is unavailable as a witness.

Applying these statutes, the court then concluded that

While it might be argued that it was inappropriate for the district court to assume that Grady embraced a fear of dying, and thus to admit the statements as dying declarations these statements could certainly be admitted under NRS 51.315(1). We have previously held that a statement could be admitted under NRS 51.315 where the persons making the statement had no involvement with the police, the defendant, or the victims; where neither the declarants nor the police had any apparent motive to lie; where the declarants were unavailable for trial; and where the statement, in its nature, was of a relatively simple kind which could be recorded with little prospect of later misinterpretation....In the instant case, Grady had recently met appellant and did not even know his last name. There are adequate assurances of accuracy because Grady was not involved in any way with the police or appellant, and neither Grady nor the police had any demonstrable motive either to inculpate or exculpate appellant. The information conveyed was not complicated or susceptible of misinterpretation. The circumstances under which these statements were made thus provide strong indicia of accuracy. Therefore, the district court did not abuse its discretion, and the statements were properly admitted for consideration by the jury.

So, the court ultimately did not find that Dean's statements failed to qualify as dying declarations because of insufficient evidence that he believed his death to be imminent. But it seems clear from the court's reasoning that it would have found that his statements constituted dying declarations if there were such evidence.

The interesting additional thing to note about NRS 51.335 is that it is not limited to civil trials and criminal homicide trials, unlike its federal counterpart. Therefore, Dean's statements could have been admissible to prove the attempted murder charge. 

-CM

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?

Let's start with excited utterances. I wrote about these in my article, A Shock to the System: Analyzing the Conflict Among Courts over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 Wm. & Mary J. Women & L. 49 (2005). As I noted in that article, 

The central theory behind the excited utterance exception is that startling events and conditions cause a certain level of stress in an individual. While the individual is controlled by the stress caused by such an event or condition, her mind is completely focused on the occurrence, and she is unable to use her reflective capacity to lie. More specifically, the theory is that the individual is so consumed by the stress of the startling occurrence that she is unable to act to promote her own self-interest. The necessary principle underlying this theory is that people's instinct is to tell the truth and that it is only when they begin to reflect on an occurrence that they begin to twist or create facts for their own benefit.

So, let's take a hypothetical: William is at Bob's Bar when he simultaneously sees two things: (1) A bartender serving alcohol to a minor; and (2) Dan brutally attacking Vince. William doesn't especially care about alcohol being served to a minor, but he is good friends with Vince, so he runs outside, calls 911, and hysterically says, "Send someone to Bob's Bar! Dan is killing Vince! And they're also serving beer to minors!"

William's statement about Dan attacking Vince is clearly admissible as an excited utterance, but what about his statement about serving alcohol to minors? This last statement seemingly doesn't qualify for admission because it does not relate to the startling event or condition in that it has nothing to do with Dan attacking Vince. But why shouldn't it qualify for admission? If we believe that William is so controlled by the stress of the attack that he can't used his reflective capacity to lie, why do we only allow for the admission of statements related to the attack? 

The same applies if we tweak the facts a bit so that William's statement is a dying declaration. William is at Bob's Bar and is shot by Dan as he sees alcohol being served by the minor. When the EMT arrives and tells William that things aren't looking good, WIlliam says, "It was Dan who shot me. And I feel like I should tell you that they're serving alcohol to minors."

There are two arguable justifications for the dying declaration exception: The first is religious, that speaker doesn't want to die with a lie on his lips as he prepares to meet his maker. The second is that

At the moment wherein the deceased realizes his own death is imminent there can no longer be any temporal self-serving purpose to be furthered regardless of the speaker's personal religious beliefs.  Indeed, given the physiological revulsion peculiar to the moment and common to all men, an express showing of the declarant's theological beliefs is immaterial. People v. Calahan, 356 N.E.2d 942, 997 (Ill.App. 1 Dist. 1976).

Again, this being the case, why do we limit the exception to William's statement about his shooter and not allow for the admission of the statement about serving alcohol to minors? If William doesn't want to die with a lie on his lips and/or doesn't have any motive to lie as he dies, why would his statement about serving alcohol to minors be any less reliable than the statement about his shooter?

I would imagine the reason for the limitation is that many unrelated statements are about more remote events, making such statements less reliable. The example I usually give to students is a dying declarant telling an EMT who shot him and that he left the stove on in his apartment. I can see the reason for excluding such a statement because the dying declarant could be remembering this older event incorrectly.

But in the examples I gave above, the other event is contemporaneous with the the startling/death causing event, and it is easy to imagine the other event actually coming after the triggering event if, for instance, William sees alcohol being served to minors in the bar after he has been shot but before the EMT arrives. If either of these is the case, can anyone think of a good reason for excluding the statement about alcohol being served to minors?

-CM

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).

In Satterfield, Shawn Satterfied and his half-brother were charged with murdering Billy Harper. A key witness for the prosecution at trial was Brian Moore, and

During the trial the appellant's attorney aggressively cross-examined Moore and even suggested that Moore may have committed the murder. In fact, the appellant's attorney implied that Moore had told people that he struck the first blow on the victim during the murder. After recross-examination, Moore concluded his testimony, but was subject to recall by the State. Before the trial court reconvened the next day, Moore committed suicide. The appellant's attorney stated that he would not be calling witnesses to testify that Moore stated that he struck the first blow. However, subsequent to the suicide, Del Vincent testified that Moore did not come by his place on that night. Additionally, pursuant to the appellant's questioning, Del Vincent testified that Moore asked him to provide an alibi, and that on previous occasions Moore had bragged that he was going to kill people.  

Because of the appellant's attack on the credibility of Moore after his death and because the appellant suggested that Moore had committed the murders, the trial judge permitted the State to introduce a suicide note left by Moore which stated: "I didn't kill Harper and I won't do time for something that I didn't do. I'm sorry but I just can't take the presure [sic] of going through a trial. Good-by [sic]. [Signed] Bucky Moore. Tell Teresa [Bucky Moore's girlfriend] I loved he [sic] more than any thing in the world." The jury convicted the appellant of first degree murder with a recommendation of mercy based on the above evidence.

After he was convicted, Satterfield appealed, claiming, inter alia, that the trial court improperly admitted the suicide note as a dying declaration. The Supreme Court of West Virginia disagreed, concluding that

In the case before us, the dying declaration was in the form of a suicide note. Few courts have addressed whether a suicide note would ever fall into the dying declaration exception to the hearsay rule. Common sense dictates, however, that just as the rules of evidence have broadened the common law to include declarants who are not murder victims, the rules of evidence would also contemplate situations in which a dying declaration could be contained in a suicide note.

Accordingly, we hold that a suicide note may be admissible pursuant to W.Va.R.Evid. 804(b)(2) as a dying declaration exception to the hearsay rule. In order for a statement found in a suicide note to be admissible as a dying declaration the following must occur: the statement must have been made when the declarant was under the belief that his death was imminent, and the dying declaration must concern the cause or circumstances of what the declarant believes to be his impending death....

Is Moore's suicide note a dying declaration? Clearly, there was evidence that Moore wrote the suicide note with the belief that he was facing imminent death because he killed himself soon after writing the note. Additionally, the suicide note explained why Moore killed himself thereby explaining the causes or circumstances which led to his death. Therefore, Moore's suicide note falls within the dying declaration exception to the hearsay rule.

I'm not sure that I agree with the court that a suicide note can be a dying declaration, but that's a question for another day. For now, all I want to note is that I agree with the court that there is nothing in Rule 804(b)(2) that precludes a dying declaration from coming from a non-victim, and I see no reason to impose such a limitation.

-CM

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).

Pennsylvania Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 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.

As you can see from the language of rule, it does not contain the restriction in its federal counterpart limiting the exception to homicide trials. Why? Well, let's look at the Comment to the rule:

The common law traditionally, but illogically, excepted a dying declaration from the hearsay rule in a criminal prosecution for homicide, but not in a criminal prosecution for another crime, or in a civil case. Prior Pennsylvania case law followed the common law. See Commonwealth v. Antonini, 69 A.2d 436 (Pa. Super. 1949).    

Reasoned analysis dictated a change. If a dying declaration is trustworthy enough to be introduced against a defendant charged with murder, it is trustworthy enough to be introduced against a defendant charged with attempted murder, robbery, or rape. It is also trustworthy enough to be introduced against a party in a civil case. (emphasis added)

Now, obviously, this Comment is not a definitive statement of the scope of Federal Rule of Evidence 804(b)(2), but it certainly indicates that the drafters of the Pennsylvania Rules of Evidence thought that the Federal Rule did not apply in attempted murder cases.

One other interesting thing to note about the Pennsylvania rule is that the Comment explicitly justifies the exception on religious grounds:

The rationale for this exception from the hearsay rule was set forth in Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224, 225 (Pa. 1973):    

The reliability of a dying declaration is provided not by an oath, nor by cross-examination; rather, its admissibility is based on the premise that no one "who is immediately going into the presence of his Maker will do so with a lie upon his lips." Luch, L.J., Regina v. Osman, 15 Cox C.C. 1, 3 (Eng. 1881).

That's quite different from the federal approach, with the Advisory Committee's Note to Federal Rule of Evidence 804(b)(2) indicating that

While the original religious justification for the exception may have lost its conviction for some persons over the years, it can scarcely be doubted that powerful psychological pressures are present. See 5 Wigmore §1443 and the classic statement of Chief Baron Eyre in Rex v. Woodcock, 1 Leach 500, 502, 168 Eng.Rep. 352, 353 (K.B. 1789).

-CM