Straight Dope Message Board

[Typo Negative]

http://www.msn.com/en-us/news/crime/...a1s?li=BBnbfcL

http://patch.com/maryland/bowie/cour...id-his-shooter

Jermaine Hailes was found guilty of 1st Degree Murder in the shooting death of Melvin Pate. Pate, who was paralyzed from the chest down as result of the shooting and could not speak, identified Hailes as the shooter 'by blinking'. The blinking was captured on video.

The video was used as evidence at trial even though Pate had died in 2012.

Appeals court Judge Charles E. Moylan Jr. ruled in May that Pate’s blinks should be considered a “dying declaration,” which is exempt from the legal requirement that criminal defendants have the right to face their accusers, the newspaper reports.

Several things at issue. First is that the video was recorded in 2010 and not introduced at trial till 2016. Pate lived for 2 years after the ID was recorded.

Pate’s statement does not constitute a dying declaration, argues the defense, because Pate lived for two years after the shooting.

The defense also argues that the Sixth Amendment gives Hailes the right to cross-examine his accuser, which is no longer possible.

The decision is being appealed. IIRC, the dying declaration is only valid if death is imminent, and the declarer knows this. The articles do not say if Pate was deposed by the defense. There a few things I would like to know. My Google skills have failed me in finding the answers.

1) Why was the trial delayed so long? 2 years seems like plenty of time to start the trial after they have identified who they believe is guilty. Which side was dragging their heels?

2) Since Pate was unable to speak, what tests, if any, were performed to see if Pate understood what he was being asked. (was this in the video? I cannot play it)

3) What other evidence was presented at trial? Are they relying solely on the ID from Pate?

4) Do you think this qualifies as a 'Dying Declaration'? Especially since it seems reasonable to assume that Pate did not know he was dying when he made it. 1

[Tim@T-Bonham.net]

Originally Posted by Typo Negative

1) Why was the trial delayed so long? 2 years seems like plenty of time to start the trial after they have identified who they believe is guilty. Which side was dragging their heels?

Because the victim wasn't dead yet.
They couldn't have tried the criminal for murder if the victim is still alive -- they have to wait until he dies. (And, of course, the death has to be the direct result of the actions of the criminal.)

But if the victim is in a medically terminal condition and expected to die soon, the prosecutor may decide to wait until the victim dies, so he can accurately charge the suspect with the more severe crime, with the heavier sentence. If he had been charged & convicted of something like 'assault' 2 years ago, I don't believe they could then charge him with murder when the victim died ('double jeopardy').

It's likely that the prosecutor wasn't expecting that the doctors could keep this victim alive for 2 years, but was anticipating an earliere death. 2

[DrDeth]

Also, of course the defense drags things out as long as possible too. 3

[Bricker]

Originally Posted by Typo Negative

4) Do you think this qualifies as a 'Dying Declaration'? Especially since it seems reasonable to assume that Pate did not know he was dying when he made it.

Um.... huh?

Pate made the declaration while being treated at the Maryland Shock Trauma Unit in Baltimore, having been flown there subsequent to being shot in the head; his condition at the time he was admitted was "critical," and "very unstable." His spinal cord was severed, and one long was collapsed. His mother testified that the doctor told her that it was unlikely Pate would live more than 24 hours, and that he had never had a case that survived the type of injuries exhibited by Pate. She testified that when Pate heard the doctor say this to her, although he could not speak, and could not move, tears came out of his eyes.

When the statement was taken, with video cameras capturing his blinks in answer to questions, it was an easy inference for him to make that this procedure was being done because he was not expected to survive.

In Maryland, a dying declaration is an our-of-court statement offered in evidence in a prosecution for homicide, attempted homicide, or assault with intent to commit a homicide, by a declarant that is unavailable, concerning the immediate cause of death or injury, while the declarant reasonably believed death was imminent.

So the checklist seems easy: this was evidence offered in a homicide trial, by a declarant who was unavailable -- dead, in fact - concerning the immediate cause of his injuries, while he believed death was imminent.

Yes, I believe this qualifies as a dying declaration. 4

[Bricker]

Originally Posted by Typo Negative

2) Since Pate was unable to speak, what tests, if any, were performed to see if Pate understood what he was being asked. (was this in the video? I cannot play it)

Immediately prior to the presentation oif the photo array, the attending nurse asked Pate a series of questions designed to verify his awareness and understanding. 5

[Pantastic]

It takes some brass balls to argue that a murder case should be thrown out because you can't cross-examine the victim that you killed. 6

[Zeke N. Destroi]

---> slight hijack<----Here in Manitoba there is (or at least was) a rule that if the victim died more than a year after the injuries were inflicted the accused could not be charged with murder - it came up a victim died a year and a few months after a severe beating. The accused were charged with the highest level of assault that there is IIRC.

Is there no limitation on duration after the event before the accused can't be charged with murder? Could, theoretically, someone linger on life support for a decade or more before dying and still have the accused charged with murder? <---- hijack over 7

[yellowjacketcoder]

Originally Posted by Bricker

So the checklist seems easy: this was evidence offered in a homicide trial, by a declarant who was unavailable -- dead, in fact - concerning the immediate cause of his injuries, while he believed death was imminent..

I'm not a lawyer, but consider the following scenario.

Bob is rushed to the hospital with a stab would, where doctors don't expect him to make it. He's videotaped saying "Al did this. Al stabbed me". 10 hours of surgery later, Bob has a much better prognosis. In fact, he recovers completely and becomes a marathon runner (i.e., very much not dead). In fact, he is so into marathon running he begins a campaign to run a marathon in every country. Unfortunately, one of the countries he tries to run in as a government with a dim view of rights of the accused, and Bob is thrown in jail in some backwater dictatorship over a misunderstanding.

Later Steve the prosecutor decides to prosecute Al for stabbing Bob. Steve presents the videotape as a dying declaration. Al (or rather Al's lawyer) counters that as Bob isn't even dead, this shouldn't count, and as he has a right to cross-examine the witness. The fact that the witness can't be cross-examined because he's in jail in Backwateristan is the prosecution's problem.

Is the court's position that because the declaration was made while Bob thought he was about to die, and Bob is not available, it's admittable as a dying declaration, even though Bob is not actually dead? 8

[Telemark]

Originally Posted by Zeke N. Destroi

Is there no limitation on duration after the event before the accused can't be charged with murder? Could, theoretically, someone linger on life support for a decade or more before dying and still have the accused charged with murder? <---- hijack over

James Brady, Reagan's press secretary - https://en.wikipedia.org/wiki/James_Brady

Brady died in Alexandria, Virginia, at the age of 73. His family announced his death on August 4, 2014. On August 8, 2014, in a controversial decision due to the length of time involved, his death was ruled a homicide caused by the gunshot wound he received in 1981, approximately 33 years after the fact. Hinckley did not face charges as a result of Brady's death due to having been found not guilty of the original crime by reason of insanity.

9

[Zeke N. Destroi]

Question answered - thank-you. And WOW!!!! 10

[Just Asking Questions]

Originally Posted by t-bonham@scc.net

But if the victim is in a medically terminal condition and expected to die soon, the prosecutor may decide to wait until the victim dies, so he can accurately charge the suspect with the more severe crime, with the heavier sentence. If he had been charged & convicted of something like 'assault' 2 years ago, I don't believe they could then charge him with murder when the victim died ('double jeopardy').

I am not a lawyer, but I did watch Law and Order last night.

The episode involve a case of three defendants being charged with attempted murder. They beat a man so severely he was in a coma, likely forever, but not dying. The defendants were convicted of the lesser included offense of assault.

After the trial, the guardian of the victim signed a DNR order and withdrew life support. The victim died, and McCoy filed charges of murder against the defendants at the end.

Is this proper? Possible? Factual? 11

[Typo Negative]

Originally Posted by Bricker

Immediately prior to the presentation oif the photo array, the attending nurse asked Pate a series of questions designed to verify his awareness and understanding.

Then I assume * that the defense lawyers had an opportunity to depose him? And if they did, would that also be admissible at trial? (is depose the right term in a criminal proceeding?)

t-bonham@scc.net
Because the victim wasn't dead yet.
They couldn't have tried the criminal for murder if the victim is still alive -- they have to wait until he dies. (And, of course, the death has to be the direct result of the actions of the criminal.)

If they can prove he was the shooter in the robbery, seems like they would want to go head and prosecute. Seems like convicting him of that would be easier (assuming they have enough evidence). Once the victim dies, they could try him for murder. Seems like THAT would easier, since he was already convicted of the robbery and assault.

I found another link that says there were years of legal wrangling, with defense trying to keep the ID out.


* because I have not seen a good link for the actual evidence at trial, only the 'eye blink' controversy. I think it would terrible to have a conviction based solely on eye-witness ID. Under the best of circumstances, eye-witness testimony can be....less than accurate. 12

[Bricker]

Originally Posted by Typo Negative

Then I assume * that the defense lawyers had an opportunity to depose him? And if they did, would that also be admissible at trial? (is depose the right term in a criminal proceeding?)

I'm not aware of any effort made by the defense to depose him. But if you're asking if they had deposed him, would the resulting testimony be admissible?

Probably.

A deposition is not the same thing as a dying declaration. A deposition is sworn testimony taken outside court that can cover a wide range of subjects; the dying declaration is limited to the circumstances surrounding the cause of injuries that placed the declarant near death. Both a deposition and the dying declaration's introduction at trial is hearsay, but usually allowed as a recognized exception to the hearsay rule if the declarant is unavailable. 13

[Riemann]

Originally Posted by Just Asking Questions

I am not a lawyer, but I did watch Law and Order last night.

The episode involve a case of three defendants being charged with attempted murder. They beat a man so severely he was in a coma, likely forever, but not dying. The defendants were convicted of the lesser included offense of assault.

After the trial, the guardian of the victim signed a DNR order and withdrew life support. The victim died, and McCoy filed charges of murder against the defendants at the end.

Is this proper? Possible? Factual?

I think the relevant legal concepts are Breaking the chain of causation and You take your victim as you find him.

Of close relevance is a famous British case Regina v Blaue. A man stabbed a young woman, a Jehovah's witness. She would have recovered had she not refused blood transfusion on religious grounds. She died, and he was convicted of manslaughter (and I believe the reduction in charge from murder was for other reasons).

I have no idea about differences between UK and NY law, but if they are similar I think McCoy has a good chance of getting a conviction. 14

[Noel Prosequi]

Originally Posted by yellowjacketcoder

I'm not a lawyer, but consider the following scenario.

Bob is rushed to the hospital with a stab would, where doctors don't expect him to make it. He's videotaped saying "Al did this. Al stabbed me". 10 hours of surgery later, Bob has a much better prognosis. In fact, he recovers completely and becomes a marathon runner (i.e., very much not dead). In fact, he is so into marathon running he begins a campaign to run a marathon in every country. Unfortunately, one of the countries he tries to run in as a government with a dim view of rights of the accused, and Bob is thrown in jail in some backwater dictatorship over a misunderstanding.

Later Steve the prosecutor decides to prosecute Al for stabbing Bob. Steve presents the videotape as a dying declaration. Al (or rather Al's lawyer) counters that as Bob isn't even dead, this shouldn't count, and as he has a right to cross-examine the witness. The fact that the witness can't be cross-examined because he's in jail in Backwateristan is the prosecution's problem.

Is the court's position that because the declaration was made while Bob thought he was about to die, and Bob is not available, it's admittable as a dying declaration, even though Bob is not actually dead?

In general, one of the conditions precedent for the application of the dying declaration rule is the that witness must be dead. In custody doesn't cut it. The rule was invented as a way around an absurd consequence of the hearsay rule, but the absurdity does not arise if the witness/victim is still alive.

The necessary state of mind of the witness is described in various ways, but one way that captures the flavour of it is that the witness must have a "settled, hopeless expectation of death". This is conceptually a hallmark of reliability justifying the relaxation of the hearsay rule in such cases - no-one wants to die with a lie on their lips, so it is thought.

Of course it is possible to have such a state of mind and yet, unlikely though it might be, luck into a recovery. But in those circumstances, the dying declaration rule would be meaningless. The witness could come to court in the ordinary way.

The example you are talking about is one of a witness who is simply unavailable. Some jurisdictions have work-arounds for that, others don't. But the dying declaration rule is not generally one of them. 15

[yellowjacketcoder]

Originally Posted by Noel Prosequi

In general, one of the conditions precedent for the application of the dying declaration rule is the that witness must be dead. In custody doesn't cut it. The rule was invented as a way around an absurd consequence of the hearsay rule, but the absurdity does not arise if the witness/victim is still alive.

The necessary state of mind of the witness is described in various ways, but one way that captures the flavour of it is that the witness must have a "settled, hopeless expectation of death". This is conceptually a hallmark of reliability justifying the relaxation of the hearsay rule in such cases - no-one wants to die with a lie on their lips, so it is thought.

Of course it is possible to have such a state of mind and yet, unlikely though it might be, luck into a recovery. But in those circumstances, the dying declaration rule would be meaningless. The witness could come to court in the ordinary way.

The example you are talking about is one of a witness who is simply unavailable. Some jurisdictions have work-arounds for that, others don't. But the dying declaration rule is not generally one of them.

Thanks for the explanation. How much of a difference would it make if the declarant were in a coma due to their injuries - unavailable but not dead? 16

[Bill Door]

You have to be careful about context. Suppose you ask Dave "Did Bob shoot you? Blink once for yes, twice for no." Blink...Blink.

The transcript reads "Did Bob shoot you? Blink once for yes, twice for no." Dave: Yes...Yes. Double guilty.

I saw it happen on a documentary once. 17

[robert_columbia]

Originally Posted by Pantastic

It takes some brass balls to argue that a murder case should be thrown out because you can't cross-examine the victim that you killed.

Why do you assume he was the killer? He hasn't been convicted yet. 18

[Riemann]

Originally Posted by robert_columbia

Why do you assume he was the killer? He hasn't been convicted yet.

The presumption of innocence is a legal right to due process. It does not control our ability to form reasonable provisional opinions about the probable state of affairs when reliable information about a case is available. For example, O.J. Simpson had a right to a fair trial, with the burden of proof upon the prosecution; but it's ridiculous to claim that it was unreasonable to think that he was guilty. 19

[UltraVires]

Originally Posted by Bricker

...
When the statement was taken, with video cameras capturing his blinks in answer to questions, it was an easy inference for him to make that this procedure was being done because he was not expected to survive.
....

Yes, I believe this qualifies as a dying declaration.

Doesn't the portion of your comment that I snipped make this statement testimonial in nature and subject to the confrontation clause according to Crawford? I know that dying declarations are generally not considered testimonial because they are generally not given for a law enforcement purpose. This one seems to be the exception. 20

[Moriarty]

Originally Posted by Noel Prosequi

In general, one of the conditions precedent for the application of the dying declaration rule is the that witness must be dead. In custody doesn't cut it. The rule was invented as a way around an absurd consequence of the hearsay rule, but the absurdity does not arise if the witness/victim is still alive...Of course it is possible to have such a state of mind and yet, unlikely though it might be, luck into a recovery. But in those circumstances, the dying declaration rule would be meaningless.

I slightly disagree. The witness does not have to be dead at the time of trial to make a dying declaration; he does have to have had an imminent expectation of death when he made the statement, since the reason the statement is presumed truthful because it is a "death bed confession", but he can ultimately survive.

Of course, you are correct that he has to be unavailable to testify, but that could include other scenarios, possibly including yellowjacketcoder's hypothetical, except for this part

Originally Posted by yellowjacketcoder

Later Steve the prosecutor decides to prosecute Al for stabbing Bob.

In the criminal context, Dying declarations are only available for homicide cases. Without a dead guy, you're probably charging him with Attempted Murder or Aggravated Battery. 21

[Andy L]

Originally Posted by Bill Door

You have to be careful about context. Suppose you ask Dave "Did Bob shoot you? Blink once for yes, twice for no." Blink...Blink.

The transcript reads "Did Bob shoot you? Blink once for yes, twice for no." Dave: Yes...Yes. Double guilty.

I saw it happen on a documentary once.

This happens in Futurama I think ("Where No Fan Has Gone Before") 22

[Riemann]

Originally Posted by Andy L

This happens in Futurama I think ("Where No Fan Has Gone Before")

I don't know if it's the same episode, but Futurama also has the judge talking about technically correct, the best kind of correct. I was suprised to be unable to find any earlier reference to this joking phrase. Did it really originate with Futurama? 23

[Bricker]

Originally Posted by Moriarty

In the criminal context, Dying declarations are only available for homicide cases.

Absolutely true at common law.

But Maryland expands this rule to include attempted homicide and assault with intent to commit homicide. 24

[Bricker]

Originally Posted by UltraVires

Doesn't the portion of your comment that I snipped make this statement testimonial in nature and subject to the confrontation clause according to Crawford? I know that dying declarations are generally not considered testimonial because they are generally not given for a law enforcement purpose. This one seems to be the exception.

Meh.

If it does, that eviscerates dying declarations, and I did not get the sense that anyone believes Crawford did that. I'd call it forfeiture by wrongdoing, Giles v. California style. 25

[Moriarty]

Originally Posted by Bricker

Absolutely true at common law.

But Maryland expands this rule to include attempted homicide and assault with intent to commit homicide.

I could weasel out of this by noting that the hypothetical didn't specify a jurisdiction, but as I was writing my post, I was thinking that local rules may vary, and I should have been more specific.

Or, even better, I should have stopped at my original point, which was to agree with your assessment that a declarant need not necessarily be dead to make a Dying Declaration. While I respect the hell out of Noel Prosequi's legal acumen, (s)he was incorrect in stating that such a situation would make the rule meaningless.

Now, it is true that they need to be unavailable to testify at trial (so if a person makes a full recovery, and is within the court's jurisdiction, they can't make a Dying Declaration).

But consider this hypothetical: A person breaks into a home and brutally stabs the husband and wife inside. The wife dies instantly. The husband, despite having lost a lot of blood, and while fading in and out of consciousness, manages to call his brother and mumble, "John Smith did this. He killed her, and he killed me, too" before passing out.

Miraculously, the brother summons an ambulance in time to stabilize the husband and get him to the hospital, where he slips into a coma that lasts through trial.

The prosecutor has a good argument for claiming that the husband's statement to his brother is a Dying Declaration, notwithstanding the fact that the husband is on life support in a hospital, instead of 6 feet under. He is incapacitated, and that is sufficient. The hearsay argument is going to probably be about whether he was in imminent expectation of death when he made the statement, and it will likely get in. 26

[Bricker]

Originally Posted by Moriarty

But consider this hypothetical: A person breaks into a home and brutally stabs the husband and wife inside. The wife dies instantly. The husband, despite having lost a lot of blood, and while fading in and out of consciousness, manages to call his brother and mumble, "John Smith did this. He killed her, and he killed me, too" before passing out.

Miraculously, the brother summons an ambulance in time to stabilize the husband and get him to the hospital, where he slips into a coma that lasts through trial.

The prosecutor has a good argument for claiming that the husband's statement to his brother is a Dying Declaration, notwithstanding the fact that the husband is on life support in a hospital, instead of 6 feet under. He is incapacitated, and that is sufficient. The hearsay argument is going to probably be about whether he was in imminent expectation of death when he made the statement, and it will likely get in.

Agreed. 27

[UltraVires]

Originally Posted by Bricker

Meh.

If it does, that eviscerates dying declarations, and I did not get the sense that anyone believes Crawford did that. I'd call it forfeiture by wrongdoing, Giles v. California style.

Not really. Someone could testify that the individual who was dying made a particular statement.

Forfeiture by wrongdoing? Doesn't that presume the guilt of the defendant? No need for a trial if the court determines that.

Isn't a "dying declaration" where death is imminent and anticipated in a moment? If there is time to bring in the police and set up a camera, then it doesn't seem to be a dying declaration. 28

[Northern Piper]

I don't think "anticipated in a moment" has traditionally been part of the test. A settled anticipation that death is imminent, but "imminent" is a question of fact on the circumstances of the case. 29

[Northern Piper]

Originally Posted by Bricker

I'm not aware of any effort made by the defense to depose him. But if you're asking if they had deposed him, would the resulting testimony be admissible?

Probably.

Does a potential accused have a right to depose a potential witness in a criminal matter in the US? I realise that there may be 51 answers to that question, but I'm just curious from a comparative law perspective. (There's no such power in Canadian criminal law.) 30

[Peter Morris]

Originally Posted by t-bonham@scc.net

But if the victim is in a medically terminal condition and expected to die soon, the prosecutor may decide to wait until the victim dies, so he can accurately charge the suspect with the more severe crime, with the heavier sentence. If he had been charged & convicted of something like 'assault' 2 years ago, I don't believe they could then charge him with murder when the victim died ('double jeopardy').

Is this correct? As far as I understand, double jeopardy prevents a second trial for the same crime, or for lesser included offences. It doesn't prevent prosecution for greater crimes 31

[Moriarty]

Originally Posted by UltraVires

Isn't a "dying declaration" where death is imminent and anticipated in a moment? If there is time to bring in the police and set up a camera, then it doesn't seem to be a dying declaration.

I think you are conflating some exceptions. A Dying Declaration is presumed truthful because (as archaic as it may sound) the person was going to meet their maker, so they didn't want their last words to be a lie. They could have known they were going to die for some time.

I think by "anticipated in a moment", you are referring to either:

A Present Sense Impression, which is a statement, made by a person about an event that they just experienced. The presumption is that a person talking about something they just experienced is going to be honest about their observations, since they wont have had time to manipulate the facts; or,

An Excited Utterance, which is an exclamation made while they are experiencing the stress of the event. Similar to Present Sense Impression, this is presumed truthful because a person reacting to something is likely to react genuinely, not having had time to calculate their response. 32

[Bricker]

Originally Posted by Northern Piper

Does a potential accused have a right to depose a potential witness in a criminal matter in the US? I realise that there may be 51 answers to that question, but I'm just curious from a comparative law perspective. (There's no such power in Canadian criminal law.)

Not an unfettered right, but in the federal systems and most states, the general rule is that either prosecution or defense can ask the judge to order a deposition when there is a need to preserve testimony. Generally the accused will have a Sixth Amendment right to be present. 33

[RivkahChaya]

Originally Posted by Just Asking Questions

I am not a lawyer, but I did watch Law and Order last night.

The episode involve a case of three defendants being charged with attempted murder. They beat a man so severely he was in a coma, likely forever, but not dying. The defendants were convicted of the lesser included offense of assault.

After the trial, the guardian of the victim signed a DNR order and withdrew life support. The victim died, and McCoy filed charges of murder against the defendants at the end.

Is this proper? Possible? Factual?

Originally Posted by DrDeth

Also, of course the defense drags things out as long as possible too.

The definition of death by murder varies by jurisdiction. In Indiana, at least back when I was in high school and had to do a debate on the death penalty, death had to occur a year and a day from the act (nothing in the books I could find about leap years) that caused it for the person who made the assault to be charged with some form of homicide. Otherwise, it was attempted murder, or aggravated assault.

There’s actually a reason for the defense to drag it out too, at least in this state. The family of a murder victim, in Indiana, anyway, has four years to file a wrongful death civil suit. Most people like to file after the criminal case is settled, because having a verdict makes the case a slam dunk, but the family will file before the criminal case, if it gets dragged out long enough, and while the verdict in the criminal case is admissible as evidence in the civil case, the civil verdict is not admissible as evidence in the criminal case. Your state’s mileage may vary.

Some states allow more than one charge for the same act, and some don’t. Since L&O tended to be pretty well-researched, I’m guessing that what McCoy did was correct for New York. I doubt it would be correct for Indiana, though, where a person cannot be charged with more than one crime for the same act (This used to be a lot more strict—now, in some cases, a jury can choose to convict for, say, 2nd degree murder or manslaughter, but not both.)

Originally Posted by Moriarty

I slightly disagree. The witness does not have to be dead at the time of trial to make a dying declaration; he does have to have had an imminent expectation of death when he made the statement, since the reason the statement is presumed truthful because it is a "death bed confession", but he can ultimately survive.

Originally Posted by Moriarty

A Dying Declaration is presumed truthful because (as archaic as it may sound) the person was going to meet their maker, so they didn't want their last words to be a lie. They could have known they were going to die for some time.

Moriarty is right about the reason for the “dying words” believed always to be truthful, and held in special esteem. It’s a Puritan thing in the US, although it probably exists in Catholic countries where lying under oath would be a mortal sin (IIRC; IANA Catholic). 34

[PatrickLondon]

Originally Posted by Moriarty

A Dying Declaration is presumed truthful because (as archaic as it may sound) the person was going to meet their maker, so they didn't want their last words to be a lie.

Truthful doesn't necessarily mean accurate. There might still be misidentification and error. 35

[Nava]

Originally Posted by RivkahChaya

Moriarty is right about the reason for the “dying words” believed always to be truthful, and held in special esteem. It’s a Puritan thing in the US, although it probably exists in Catholic countries where lying under oath would be a mortal sin (IIRC; IANA Catholic).

I've tried to search for Spanish-speaking countries but haven't found anything. Then again, AIACatholic but IANALawyer, I may not be using the right terms.

I know the Spanish legal system accepts both paper depositions (nowadays less preferred) and the presence of a witness in court via phone or skype (nowadays preferred), when the requirement to act as a witness is considered too onerous but I hadn't heard of a "deathbed testimony" until it came up in these boards a while back.

And we do not take oath the way Americans do, there's no "under oath" involved. 36

[Bricker]

Originally Posted by PatrickLondon

Truthful doesn't necessarily mean accurate. There might still be misidentification and error.

The discussion should make note of the difference between weight and admissibility.

In general, the admissibility of evidence is a question of law for the judge to decide. The weight of evidence is for the jury (or the judge in a bench trial, in his role as finder of fact) to evaluate.

Your comment here goes to weight, not admissibility. 37

[UltraVires]

Originally Posted by Bricker

The discussion should make note of the difference between weight and admissibility.

In general, the admissibility of evidence is a question of law for the judge to decide. The weight of evidence is for the jury (or the judge in a bench trial, in his role as finder of fact) to evaluate.

Your comment here goes to weight, not admissibility.

But how can the jury determine what weight to give this testimony without being tested by cross-examination?

Originally Posted by Crawford v. Washington

The Raleigh trial itself involved the very sorts of reliability determinations that Roberts authorizes. In the face of Raleigh’s repeated demands for confrontation, the prosecution responded with many of the arguments a court applying Roberts might invoke today: that Cobham’s statements were self-inculpatory, 2 How. St. Tr., at 19, that they were not made in the heat of passion, id., at 14, and that they were not “extracted from [him] upon any hopes or promise of Pardon,” id., at 29. It is not plausible that the Framers’ only objection to the trial was that Raleigh’s judges did not properly weigh these factors before sentencing him to death. Rather, the problem was that the judges refused to allow Raleigh to confront Cobham in court, where he could cross-examine him and try to expose his accusation as a lie.

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.

How does this not equally apply to dying declarations?

ETA: Those particular dying declarations mentioned in this thread that are clearly testimonial. 38

[Moriarty]

Originally Posted by UltraVires

But how can the jury determine what weight to give this testimony without being tested by cross-examination?

Other evidence can be introduced to cast doubt on the credibility of the witness. Prior inconsistent statements, other witness testimony, forensic evidence to show that their statement couldn't have been correct...Something like that.

How does this not equally apply to dying declarations?

ETA: Those particular dying declarations mentioned in this thread that are clearly testimonial.

I think it goes to the perceived motivations involved. A person who is dying is presumed to have great motivation to tell the truth at that moment. A spouse who is vouching for her husband's defense has a great motivation to corroborate his version of facts. Historically, the afterlife implications of lying at death were supremely serious, so (similar to the ultimate "statement against interest") it is believed that no person is likely to lie in such a situation.

It's a risk, of course. A balance between a reliably true statement being helpful to an investigation of the truth and a person not being able to challenge its veracity. That's why these should remain rare exceptions.

Originally Posted by PatrickLondon

Truthful doesn't necessarily mean accurate. There might still be misidentification and error.

Absolutely. Which is why the jury, as Bricker suggests, must always weigh the evidence against other evidence presented. If the out of court statement is that the light was green, but there are other witnesses challenging that assertion, and a diagram of the scene, demonstrating how the cars were positioned, shows that it's not likely, then the jury can chalk it up to a mistake and should discount it.

The historical basis to allow these exceptions is that they are expected to be honest statements about what someone perceives (which is why they are generally limited to really serious moments or spontaneous exclamations), which leaves open the possibility that someone honestly believes a mistake. The point, though, is that you don't need someone to be present to demonstrate that they are mistaken (which is based on the introduction of extrinsic facts) the same way you may need someone present to demonstrate that they are a liar (which can be based on their demeanor). 39

[Typo Negative]

Originally Posted by Moriarty

Absolutely. Which is why the jury, as Bricker suggests, must always weigh the evidence against other evidence presented.

I still cannot find reference to any other evidence. Every site I have visited focused only on the eye blink ID. Is it just that my google-fu is weak? Does someone have a link to other evidence?

This is my fear. The victim was shot, and the cops rounded up the usual suspect gang-bangers they would like to put away, put them in a photo array and asked the brain damaged victim to make an ID because they had nothing else.

So what I want to know is....
Why is Jermaine Hailes in the photo array? Were there any other witnesses to the shooting? Does a witness put Hailes at or near the scene around that time? Did Hailes brag about the shooting? Did they find the gun or proceeds from the robbery on him? 40

[UltraVires]

Originally Posted by Moriarty

I think it goes to the perceived motivations involved. A person who is dying is presumed to have great motivation to tell the truth at that moment. A spouse who is vouching for her husband's defense has a great motivation to corroborate his version of facts. Historically, the afterlife implications of lying at death were supremely serious, so (similar to the ultimate "statement against interest") it is believed that no person is likely to lie in such a situation.

It's a risk, of course. A balance between a reliably true statement being helpful to an investigation of the truth and a person not being able to challenge its veracity. That's why these should remain rare exceptions.

That is the same rationale for all of the other hearsay exceptions, e.g. statement against interest. The idea is that nobody would say something that incriminates himself unless it was true. However, if it is testimonial, confrontation is required. Your rationale that the statement is reliable, so no need for cross-examination, is the same rationale that Crawford rejected from Ohio v. Roberts.

I'm still not seeing why a dying declaration, under the circumstances given in the OP, is not covered under Crawford. 41

[slash2k]

Originally Posted by Typo Negative

So what I want to know is....
Why is Jermaine Hailes in the photo array? Were there any other witnesses to the shooting? Does a witness put Hailes at or near the scene around that time? Did Hailes brag about the shooting? Did they find the gun or proceeds from the robbery on him?

Don't know the answers to all your questions, but NBC Washington's coverage of the trial noted "A man who said he planned the robbery with Hailes identified him in court Wednesday as the shooter. He said he did not want to appear in court because he was afraid." 42

[Typo Negative]

Originally Posted by slash2k

Don't know the answers to all your questions, but NBC Washington's coverage of the trial noted "A man who said he planned the robbery with Hailes identified him in court Wednesday as the shooter. He said he did not want to appear in court because he was afraid."

Thanks slash2k.

I looked at 10 sites, basically looking for this and not finding it. 43

[Saint Cad]

I don't know if it makes a legal difference but for me it makes a moral one.
Did the prosecution let the defense know they had this dying statement for the two years he was still alive?
Did the defendant know he was being investigated or charged for the death in the two years he was still alive? 44