As was reported in the Register-Herald this morning, a 2nd degree murder conviction being appealed by myself and Tom White of Lewisburg was denied by the West Virginia Supreme Court of Appeals last week. The vote was 4-1 – Menis Ketchum, a Justice having criminal defense experience, having voted to hear to hear the appeal. One of the issues appealed was the admission of a “dying declaration,” which is an exception to the hearsay rule. Justice Ketchum noted during the hearing that there has been a nationwide trend questioning the dying declaration exception, such as has long been the case in Alabama – See Hutcherson v. State, and indeed apparently even in India. Exceptions the hearsay rule still have to hinge on the reliability of the statements. If the dying person had a motive to lie, then the reliability of the statement should be questioned and it possibly should not be admitted.
In Hutcherson, the Court of Appeals of Alabama noted that “[t]hough a dying declaration is not presumed involuntary as is an extrajudicial confession, yet it must be treated with a jaundiced eye. It is predicated on the assumption of death-bed freedom from vengefulness and mendacity. The validity of this assumption would seem difficult of demonstration. Hutcherson v. State, 40 Ala.App. 77, 108 So.2d 177 (1958).
The Alabama court cites a prior Alabama case which gives this warning:
“There are many reasons why dying declarations should be received and weighed with great caution. First, They are necessarily wanting in that greatest test of the credibility of oral testimony, cross-examination. Second, The jury are without the opportunity of observing the temper and manner of the declarant.Third, Such testimony is generally given by relatives and friends of the deceased, who had watched by his bed-side, and bias in his favor is to be expected.Fourth, All narrations of the other men’s sayings should be scrutinized with care, because what men say is so liable to be misunderstood. This is shown in the fact that when two or more witnesses, no matter how respectable, attempt to repeat a conversation that was heard by each, very marked differences will frequently be observed in their several narratives. Fifth, Many persons, even in serious conversation, assert as facts those things of which they have only strong convictions, but have no knowledge derived from the senses. Well may we, in the language of the judges and text-writers, say that such evidence is received from necessity, and to prevent the escape of offenders who commit the awful crime of murder. * * *”
Shell v. State, 88 Ala. 14, 7 So.2d 41.
Note: this is is no way represented as a comprehensive legal argument regarding dying declarations – only some off-the-beaten-path language that I encountered and felt was pertinent – probably only useful in attempts at encouraging a trial judge to second guess the reliability of a dying declaration sought to be admitted to a jury. There are obviously better appellate arguments grounded in law. This is not that.
Isn’t it frightening that you can be convicted of murder in West Virginia and not be able to appeal your case? We need either an appeal as of right for certain criminal cases, or an intermediate court of appeals. And we can afford it, we just need to cut out some of the entitlements that are handed out so generously in our state.
– John H. Bryan, West Virginia Attorney.
A more promising approach would be to argue that the dying declaration exception found at W.Va. R. Evid. 804 (b)(4) which allows for admission of a dying declaration in a homicide case is violative of the Sixth Amendment right to confront witnesses under the reasoning of Crawford v. Washington , and that is an issue our Supreme Court should address. A dying declaration may well be considered testimonial because one can infer (at least in many circumstances) the declarant expected or at least desired that his statement would be used at trial of the person he named as his killer and obviously the defendant will have had no opportunity to cross examine the declarant .
Old guy, thank you for your comments. I don’t disagree. We didn’t appeal the dying declaration admission on policy grounds – though that wouldn’t be a bad idea – albeit a losing one. I’m not sure which issue Justice Ketchum was interested in, or whether he just believes that all murder cases should get an appeal.
You still need to avoid the trap of basing your arguments on “yesterday’s news. After Crawford, the test for admission of extrajudicial statements is no longer merely whether they bear sufficient indicia of reliability such as those found in deeply rooted hearsay exceptions. The analysis is now required to encompass Confrontation clause concerns. that will prove a much more effective tack than arguing over the “reliability” of a statement.
Even if we allow for the fact that some dying declarations as to the identity of the person who inflicted the mortal wound (and/or the circumstances in which it was inflicted) might be based upon vengeful motive or other factors impairing reliability, that is likely to be very rare and the vast majority of cases will also involve circumstances similar to those that allow for “excited utterances”– i.e., lack of reason to believe the declarant had time or reason to reflect and fabricate.
With Crawford, extra-judicial statements should be inadmissible DESPITE ample indicia of apparent reliability and the applicability of a recognized hearsay exception. that’s exactly why Crawford is such an important case.
Let’s say a dying declaration is in fact recorded on video and audio and it is clear the person is speaking immediately after being wounded and simply says on video and audio:
“Oh my God, a short guy with a tattoo of a tiger on his forehead just robbed and shot me. He hit my heart and I’m dying. Tell the police he’s driving a red truck so they can catch him before he gets away.”
Pre-Crawford, there would be little doubt that comes in. Now, there is a strong argument that it would violate the confrontation clause despite all the indicia of relaibility and absence of motive to fabricate or possibility of misunderstanding.
My suggestion would be that you file a cert. petition in this case. If you raised the Crawford argument in the trial court and on appeal you have preserved it for review. Very few cert petitions are granted but you may recall a few years ago SCOTUS accepted and reversed in a Fayette County murder case finding a clear error with regard to the 4th amendment where the WVSCA had denied the petition for appeal. The case was remanded and on remand the trial court and the WVSCA found the admission of evidence to be harmless error so the defendant ultimately lost but depending on your facts any error found might not be considered harmless.
If you failed to raise the Crawford argument you have a bit of a problem with waiver issues. you can still try to argue that you at least tangentially raised the confrontation issue enough to preserve the issue. If the cert petition is denied or granted and you then lose on a waiver issue, you might be advised to file (or have a different lawyer file ) a § 2254 action in federal court citing both plain constitutional error under the 5th and ineffective assistance of counsel under the 6th.
Old guy, Are you aware of any cases anywhere excluding a dying declaration on Crawford grounds? It’s a worthy argument, but the problem always is going to be the lack of formality which is required to make the statement “testimonial.” In your scenario, I am assuming you included the fact inserting audio and video so as to make the statement testimonial. Unfortunately most dying declarations are going to be spontaneous and lacking formality.
As I interpret Scalia’s opinion (never an easy task)”testimonial” turns much more on the declarant’s state of mind the the formalities surrounding the statement. If a person makes a statement in circumstances showing he intended for the statement to be used to pursue court proceedings then it is “testimonial.” “Formalities” are more in the way of circumstantial evidence that the declarant believed his statements would be used in court proceedings.
I actually put in the part about “tell the cops so they can catch him” to buttress the “testimonial” angle. The recording part was to illustrate that even with indicia of reliability such as a recording, which removes the possibility of misunderstanding of words or contest by a third party witness, a statement might still be inadmissible under Crawford.
As to your other question. No, I’m not aware of any cases holding dying declarations inadmissible under Crawford. Crawford expressly left the question open — and there is some dicta in Crawford suggesting Scalia at least would vote to allow admission of testimonial dying declarations despite Crawford.
It’s also been my impression that courts will go to great lengths to label statements as “non-testimonial” when I would consider them “testimonial in fact.” A lot of courts dealing with various types of statement seem only to apply Crawford in the narrow range of “testimonial per se” statements.
To be testimonial “per se” it probably needs to be both to an agent of law enforcement and given in circumstances where it is clear the declarant’s purpose is investigatory or prosecutorial and not to summon assistance in an emergency etc. It will be very rare (dying declarations are pretty rare period) where you’d have a testimonial per se dying declaration. That’s why my example didn’t have the dying guy making Q&A responses to an investigator’s interrogation. That just isn’t going to happen much in the real world.
If it did, you’d have everything you need for Crawford. the statement would be inadmissible unless the court were to invoke a forfeiture by wrongdoing exception where a statement is offered against a killer. I’ve always though that should not be allowed because it puts the court in the position of prejudging a defendant as killer before or during the trial for that very offense, but it could happen if a court had to decide a case about a person it believed was guilty whose conviction could not be sustained absent the dying declaration. As you know, some courts can be a tad results oriented.