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