So, I was watching the episode of Monty Python’s Flying Circus where John Cleese calls a “nearly dead” witness to the stand (in a coffin), and, after a few questions, the deceased stops responding. “No further questions, m’lord.”
What happens if a witness dies after the prosecution has done its questioning, but before the defense does? Is the defense just screwed, or is the testimony thrown out because the defense doesn’t have equal access to the witness? Is there a difference between civil and criminal rules?
If a witness just up and dies during testimony there’s not much the other side can do except to move to have the testimony up to then struck. The non-questioning party has the right to cross-examine the witness and if that is impossible, chances are good the judge will strike the direct examination.
Generally, in cases where the witness is really old or sick or for some other reason may not be present at trial, the parties depose the witness ahead of time, which is admissible as testimony at trial if the witness cannot testify in person.
But wouldn’t it be a dying declaration, and therefore admissible? I know that this is a traditional loophole usually used to admit declarations that would otherwise be hearsay, but if the rules of evidence give the last words of a dead man special status in one circumstance why not others?
Does a dying declaration have to come when the person thinks he is dying? Like after being shot or stabbed? If a person dies on the stand that is probably not expected.
In criminal cases, the defendant has a constitutional right to cross-examine his accusers. If the witness’s death prevents that, then the testimony would typically be stricken. As noted above, if the witness had previously been deposed (common if the parties think the witness may pass before trial), the judge might allow the testimony with the defense given the opportunity to read exculpatory parts of the deposition into the record. But if that isn’t available, the testimony would be disallowed. If the testimony was particularly important, dramatic, or wasn’t corroborated by other witnesses such that the judge doesn’t feel the jury could ignore its impact, then it could lead to a mistrial.
The results are similar in a civil trial, although there might be more leeway because there’s no explicit right of confrontation in civil cases. That said, due process requires that each side get some meaningful opportunity to meet the evidence raised against them, so the same possibility of mistrial exists if nothing else presents itself.
The dying declaration rule doesn’t apply here; that’s a hearsay rule, which means it deals only with bringing in statements when the witness is unavailable to testify at all. And in many jurisdictions, what is allowed to come in as hearsay is extremely limited – in the federal courts, it’s only statements made in imminent fear of death regarding the declarant’s belief about what has threatened his life. One can imagine many cases in which the decedant’s testimony is about other stuff altogether.
So the real issue would just be the confrontation clause–and I’m not sure how that would come out (it emphasizes cross-examination, but in the context of a witness unavailable at trial–I’m not sure there’s a post-crawford case on point)
In Canada, for cases on indictment, there is usually a preliminary inquiry. If a witness dies after testifying at the prelim, the Code allows for the transcript of the evidence to be introduced at trial, since the accused has had the chance to cross-examine at the prelim.
Not sure what happens if a witness dies at the trial itself, before cross-examination is finished. I’ve never heard of such a case. (which isn’t to say it hasn’t happened, of course.)