EvidenceProf Blog

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

Thursday, March 14, 2013

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.



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