EvidenceProf Blog

Until My Dying Day: Were There Any Abortion Cases With True Dying Declarations Admitted?

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 couple of days ago, I noted that the Advisory Committee indicated that some courts applied the common law analogue to this modern "dying declaration" exception in abortion cases. After some research, however, I haven't found any such cases. Let's take a look at the opinion of the Supreme Court of Pennsylvania in Railing v. Commonwealth, 1 A. 314 (Pa. 1885).

In Railing, Charles A. Railing was charged with administering to Annie Faust a drug with intent to procure a miscarriage, and it was also charged that her death resulted as a consequence. It was "unquestioned that there [wa]s no grade of homicide involved in th[e] case; the offense charged being the one commonly known as abortion."

Now, apparently Faust made some statements that qualified as dying declarations although the court unfortunately does not relay their substance. What the court does note, however, is that most courts have found dying declarations inadmissible in abortion cases:

In Reg. v. Hind, 8 Cox, Crim. Cas. 300, the defendant was indicted for using instruments upon a woman with intent to produce an abortion, in consequence of which she died. It was held that her dying declarations in relation to the offense were inadmissible. The same course was followed in the state of New York in the case of People v. Davis, 56 N. Y. 95, where the statute is quite similar to our own; the penalty being increased when the woman dies in consequence of the unlawful acts. It was held that the dying declarations of the woman were incompetent on the general ground that the death was not the subject of the charge. In the case of State v. Harper, 35 Ohio St. 78, the same doctrine was held under a statute almost identical with ours. The chief justice said: 'This was an indictment for unlawfully using an instrument with the intent of producing an abortion, and not an indictment for homicide. State v. Barker, 28 Ohio St. 583; People v. Davis, 56 N. Y. 96. The death was not the subject of the charge, and was alleged only as a consequence of the illegal act charged, which latter was the only subject of investigation. Did the court err in rejecting the dying declaration in proof of the charge? We think not. The general rule is that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. Rex v. Mead, 2 Barn. & C. 605; 1 Greenl. Ev. 156; Rex v. Lloyd, 4 Car. & P. 233.'

The court then noted, however, that

On the other hand, the supreme court of Indiana has held that such declarations were admissible in an indictment under a similar statute. Montgomery v. State, reported in 3 Crim. Law Mag. 523. In State v. Dickinson, 41 Wis. 299, the declarations were admitted, but by the statute of that state the offense is expressly made manslaughter where the woman dies, and the case was therefore one of homicide and within the rule. The case in Indiana appears to be the only one in a court of last resort in which the declarations have been held admissible.

I wasn't able to locate the Montgomery case, but the Dickinson case clearly did not involve a dying declaration. In Dickinson, the victim told someone "that she was in a family way" and going to see the defendant-doctor to receive an abortion. This would be a statement falling under the state of mind exception, not the dying declaration exception. So, are there any cases in which an actual dying declaration was admitted at an abortion trial? I don't know.

-CM

Speaking Ill Of The Dead: D.C. Court Of Appeals Grants New Trial Based on Failure to Impeach Dying Declarant

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.

So, how often is a defendant found "not guilty" when the prosecution admits a dying declaration against him? In Kigozi v. United States, 55 A.3d 643 (D.C. 2012), defense "counsel candidly admitted that a dying declaration is 'very powerful,' and that he had 'only won one case ever where there was a dying declaration out of all [the] cases [he had] ever won.'" So, what else about Kigozi was interesting?

In Kigozi, Ajene Kigozi was convicted of the murder of Parris Lynch. "The centerpiece of the government's case was Lynch's three statements, made shortly before he died, identifying appellant as the man who shot him."

After he was convicted, Kigozi filed a motion for a new trial, "in which he argued that his trial counsel was ineffective because he failed to consult and present an expert to fully develop the relevance of Lynch's positive PCP urine test, which indicated that he was high on PCP at the time of the shooting, and thereby cast doubt on the reliability of his statements accusing appellant." Such expert testimony undoubtedly would have been admissible.

Acordingly, the D.C. Court of Appeals agreed with Kigozi, finding that

Both parties agree that "[t]he crucial issue at trial was whether Lynch was actively under the influence of PCP at the time of the shooting so as to undermine the reliability of his dying declaration." We find it unreasonable that counsel, upon learning pretrial that the key witness for the prosecution may have been under the influence of a mind-altering drug, did not further investigate its potential for impeaching this witness's damning statements. As we said in Cosio, "we have no doubt that any competent defense attorney would have appreciated the need to investigate [the credibility of the key witness for the prosecution]."...Such an inquiry would have required, in this case, that counsel at least consult an expert about the possibility that Lynch was under the influence of PCP, taking into account the results of the testing done when he was admitted to the hospital, and the effect that PCP could have had on Lynch's ability to accurately perceive, recall, and report the identity of his assailant. Counsel should have been alerted to the fact that the government's expert, Dr. Titus, would take a contrary position, as the autopsy report signed by Dr. Titus referred only to the presence of ketamine....Appellant's trial counsel did not consult an expert, despite his client's explicit request and his knowledge that prior counsel was planning to retain an expert....Although counsel testified that he did not do so because he did not think appellant could afford the expense even though he had been retained as counsel and appellant had paid his fees, albeit in "drips and drabs"” counsel did not present the issue to appellant's family and did not request assistance from the court, pursuant to D.C.Code § 11–2605.

-CM

The Talking Dead: 4 Observations About the Dying Declaration Exception Based on the Advisory Committee's Notes

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.

Working off of my post from yesterday about dying declarations being admissible for ("The defendant didn't do it") and against ("The defendant didn't do it"), I wanted to take a look at the Advisory Committee's Note to Rule 804.

In that Note, we first have the Committee in part justifying the former testimony exception by reference to the dying declaration exception:

Falknor concluded that, if a dying declaration untested by cross-examination is constitutionally admissible, former testimony tested by the cross-examination of one similarly situated does not offend against confrontation....The constitutional acceptability of dying declarations has often been conceded.

We then have an argument for expansion of the dying declaration exception beyond its common law roots:

The common law required that the statement be that of the victim, offered in a prosecution for criminal homicide. Thus declarations by victims in prosecutions for other crimes, e.g. a declaration by a rape victim who dies in childbirth, and all declarations in civil cases were outside the scope of the exception. An occasional statute has removed these restrictions...or has expanded the area of offenses to include abortions....Kansas by decision extended the exception to civil cases....While the common law exception no doubt originated as a result of the exceptional need for the evidence in homicide cases, the theory of admissibility applies equally in civil cases and in prosecutions for crimes other than homicide. The same considerations suggest abandonment of the limitation to circumstances attending the event in question, yet when the statement deals with matters other than the supposed death, its influence is believed to be sufficiently attenuated to justify the limitation.

Later, however, the Committee on the Judiciary limits this expansion, concluding that

Rule 804(b)(3) as submitted by the Court (now Rule 804(b)(2) in the bill) proposed to expand the traditional scope of the dying declaration exception (i.e. a statement of the victim in a homicide case as to the cause or circumstances of his believed imminent death) to allow such statements in all criminal and civil cases. The Committee did not consider dying declarations as among the most reliable forms of hearsay. Consequently, it amended the provision to limit their admissibility in criminal cases to homicide prosecutions, where exceptional need for the evidence is present. This is existing law. At the same time, the Committee approved the expansion to civil actions and proceedings where the stakes do not involve possible imprisonment, although noting that this could lead to forum shopping in some instances.

A few observations:

1. I find it interesting that the former testimony exception is justified by reference to the dying declaration exception, which is later declared to be not among the most reliable forms of hearsay. Additionally, I wonder if a litigant has ever used this reliability statement by the Judiciary Committee in making arguments to a judge or jury.

2. I find the reference to  applying the dying declaration exception to cases involving rapes and deaths during childbirths/abortions to be interesting. We already have special rules of evidence -- Rule 412-415 -- that apply to rape and sexual assault cases. I wonder whether it makes senses to expand the dying declaration exception to cases involving alleged rapes and sexual assaults.

3. I find it interesting that the Committee found that it made sense only to allow for the admission of dying declarations in civil cases and criminal cases involving homicide, "where exceptional need for the evidence is present." A foundational requirement for the exception is that the declarant be unavailable to testify at trial. So, how is the need for the evidence any less in any other type of criminal trial?

4. Another reason for this limitation is that a defendant can be imprisoned after a criminal action, which is why the exception was limited to homicide cases. But, as noted in yesterday's post, a defendant can use dying declarations to exculpate himself. Assume that Dan allegedly shoots Vince, who says, "Carl shot me" as he thinks he is dying. Vince survives but later dies in a car accident. If Dan is charged with attempted murder, is there an argument that Dan should be able to use Vince's statement under a "mercy rule" analysis? Should the statement come in under the residual hearsay exception?

-CM

It Wasn't Him: Mattox v. United States & The Use of Dying Declarations by Defendants

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.

Typically, this "dying declaration" exception is considered to be an arrow in the prosecutorial quiver, with the victim's statement that the defendant shot/stabbed/choked him being used to prove his guilt. But that's not always the case, with the Supreme Court's opinion in Mattox v. United States, 146 U.S. 140 (1892) being the classic example of a dying declaration being used to exonerate the defendant.

In Mattox,

The evidence tended to show that Mullen was shot in the evening between 8 and 9 o'clock, and that he died about 1 or 2 o'clock in the afternoon of the next day; that three shots were fired and three wounds inflicted; that neither of the wounds was necessarily fatal, but that the deceased died of pneumonia produced by one of them described as 'in the upper lobe of the right lung, entering about two or three inches above the right nipple, passing through the upper lobe of the right lung, fracturing one end of the fourth rib, passing through and lodging beneath the skin on the right side beneath the shoulder blade.’ The attending physician, who was called a little after 9 o'clock and remained with the wounded man until about 9 o'clock in the morning, and visited him again between 8 and 9 o'clock, testified that Mrs. Hatch, the mother of Clyde Mattox, was present at that visit; that he regarded Mullen's recovery as hopeless; that Mullen, being ‘perfectly conscious' and ‘in a normal condition as regards his mind,’ asked his opinion, and the doctor said to him: ‘The chances are all against you; I do not think there is any show for you at all.’ The physician further testified, without objection, that, after he had informed Mullen as to his physical condition, he asked him as to who shot him, and he replied ‘he didn't have any knowledge of who shot him. I interrogated him about three times in regard to that,-who did the shooting,-and he didn't know.’ Counsel for defendant, after a colloquy with the court, propounded the following question: ‘Did or did not John Mullen, in your presence and at that time, say, in reply to a question of Mrs. Hatch, ‘I know your son, Clyde Mattox, and he did not shoot me; I saw the parties who shot me, and Clyde was not one of them?’' This question was objected to as incompetent, the objection sustained, and defendant excepted. Counsel also propounded to Mrs. Hatch this question: ‘Did or did not John Mullen say to you, on the morning you visited him, and after Dr. Graham had told him that all the chances for life were against him, ‘I know Clyde Mattox, your son, and he was not one of the parties who shot me?’' This was objected to on the ground of incompetency, the objection sustained, and defendant excepted. (emphasis added).

The Supreme Court later reversed Mattox's conviction, finding that [d]ying declarations are admissible on a trial for murder, as to the fact of the homicide and the person by whom it was committed, in favor of the defendant as well as against him."

-CM

Did You Know That?: NY Case Reveals Personal Knowledge Requirement for Hearsay Statements

I've been writing a good deal recently about 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 opinion of the United States DIstrict Court for the Eastern District of New York in United States v. Velentzas, 1993 WL 37339 (E.D.N.Y. 1993), however, notes an important limitation on the dying declaration exception and all hearsay exceptions.

In Velentzas,

On October 26, 1988, Sorecho Nalo died as a result of gun shot wounds he sustained inside Olympic Travel, Inc. ("Olympic"), a travel agency in Astoria, Queens. Olympic is owned in part by the defendant, Spyredon Velentzas.  

Within minutes of receiving a radio transmission that Nalo was shot, Police Officer Noto and his partners arrived on the scene and found Nalo lying on the floor. When they asked Nalo what happened, he replied, in substance, that he had been shot four times, that he needed an ambulance, and that he did not know who shot him.  

Noto obtained a description of the shooter from an eyewitness and repeated this description to his partner, who called it in over the radio. Then Noto again asked Nalo what happened, to which Nalo replied, in substance, that he had been on the phone with Spiros Velentzas, the owner of Olmypic, whom Nalo was to meet at Olmypic, at Velentzas' request, at 6:00 P.M. that evening. Nalo then added, in substance, "Spiros had this done to me." Nalo also informed the officers that the shooter left in a dark two-door sedan with tinted windows. From this point until the ambulance arrived, Nalo repeatedly stated that he was dying.  

Several minutes after Nalo's statements to Noto, a second police officer spoke to Nalo. First, the officer asked Nalo if he knew who he was, and Nalo answered in the affirmative. Then the officer asked Nalo who shot him, and Nalo answered "Spiros Velentzas."

At trial, the prosecution admitted Nalo's statements implicating Velentzas in his shooting as dying declarations, and Velentzas later claimed that they were improperly admitted on appeal. In addressing this issue, the Eastern District of New York noted that Federal Rule of Evidence 602

provides, in pertinent part, that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Personal knowledge may appear from the statement or be inferable from circumstances. Because a witness' testimony as to a hearsay statement is merely a substitute for what the declarant would have testified to, the requirement of personal knowledge applies likewise to hearsay testimony. See id. (Rule 803 does not "dispense[ ] with the requirement of firsthand knowledge."); see also Notes of the Advisory Committee on Rule 804 (incorporating Rule 803's firsthand knowledge requirement by reference). This requirement is logical: a witness should not be able to testify to hearsay to which the declarant himself would not be able to testify if he were available. Thus, personal knowledge, or an inference thereof, is a prerequisite to the admissibility of both dying declarations and excited utterances, and the Court must resolve this issue prior to reaching the question of whether Nalo's statements fall under either or both of these exceptions.

Ultimately, the court concluded that this personal knowledge requirement was satisfied because, inter alia,

Nalo must have recognized that it was something other than coincidental that he was shot at the exact location and time which Velentzas had designated for their meeting, while his attention was presumably focused on the telephone call in which he was engaged rather than on the assailants who were about to end his life.

-CM