# Eye-blink ID - “Dying Declaration” Conviction **URL:** \ **Category:** Great Debates\ **Created:** [June 8, 2016, 9:11pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865 "2016-06-08T21:11:58Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [June 11, 2016, 3:16am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/21 "2016-06-11T03:16:24Z")
> [@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 [QUOTE=yellowjacketcoder] Later Steve the prosecutor decides to prosecute Al for stabbing Bob. [/QUOTE] 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. ---
**Author:** ![Andy\_L](https://avatars.discourse-cdn.com/v4/letter/a/c67d28/32.png) [@Andy\_L](https://boards.straightdope.com/u/Andy_L)\ **Post date:** [June 11, 2016, 6:01pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/22 "2016-06-11T18:01:31Z")
> [@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”) ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [June 11, 2016, 8:09pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/23 "2016-06-11T20:09:10Z")
> [@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](https://www.youtube.com/watch?v=hou0lU8WMgo). I was suprised to be unable to find any earlier reference to this joking phrase. Did it really originate with Futurama? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 11, 2016, 9:24pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/24 "2016-06-11T21:24:40Z")
> [@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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 11, 2016, 9:31pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/25 "2016-06-11T21:31:02Z")
> [@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. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [June 11, 2016, 10:26pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/26 "2016-06-11T22:26:58Z")
> [@Bricker](#): > > Absolutely true at common law. > > But Maryland expands this rule to include attempted homicide and assault with intent to commit homicide. :smack: 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 12, 2016, 3:33am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/27 "2016-06-12T03:33:09Z")
> [@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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 12, 2016, 8:00pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/28 "2016-06-12T20:00:04Z")
> [@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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 13, 2016, 1:37am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/29 "2016-06-13T01:37:16Z")
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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 13, 2016, 1:40am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/30 "2016-06-13T01:40:06Z")
> [@Bricker](#): > > [QUOTE=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. [/QUOTE] 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.) ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [June 13, 2016, 3:51am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/31 "2016-06-13T03:51:37Z")
> [@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 ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [June 13, 2016, 4:55am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/32 "2016-06-13T04:55:51Z")
> [@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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 13, 2016, 5:44am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/33 "2016-06-13T05:44:53Z")
> [@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. ---
**Author:** ![RivkahChaya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rivkahchaya/32/8919_2.png) [@RivkahChaya](https://boards.straightdope.com/u/RivkahChaya)\ **Post date:** [June 13, 2016, 6:06am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/34 "2016-06-13T06:06:01Z")
> [@Just\_Asking\_Questions](#): > > I am not a lawyer, but I did watch Law and Order last night. 🙂 > > [The episode](http://www.imdb.com/title/tt1343623/?ref_=ttep_ep18) 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? > [@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.) > [@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. > [@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). ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [June 13, 2016, 9:57am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/35 "2016-06-13T09:57:40Z")
> [@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. ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [June 13, 2016, 11:30am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/36 "2016-06-13T11:30:54Z")
> [@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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 13, 2016, 1:40pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/37 "2016-06-13T13:40:14Z")
> [@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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 13, 2016, 3:52pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/38 "2016-06-13T15:52:57Z")
> [@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? [QUOTE=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. [/QUOTE] How does this not equally apply to dying declarations? ETA: Those particular dying declarations mentioned in this thread that are clearly testimonial. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [June 13, 2016, 7:04pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/39 "2016-06-13T19:04:35Z")
> [@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. > [@](#): > > > [@](#): > > > > 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. 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. [QUOTE=PatrickLondon] Truthful doesn’t necessarily mean accurate. There might still be misidentification and error. [/QUOTE] 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). ---
**Author:** ![Typo\_Negative](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/typo_negative/32/484_2.png) [@Typo\_Negative](https://boards.straightdope.com/u/Typo_Negative)\ **Post date:** [June 13, 2016, 7:54pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/40 "2016-06-13T19:54:48Z")
> [@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? [Previous page](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865.md?page=1) [Next page](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865.md?page=3)