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.