High court says victim's dying words can be used in court


*"In April 2001, police in Detroit found Covington at a gas station with a gunshot wound to the abdomen, in great pain, and having a hard time speaking. When asked “what had happened, who had shot him, and where the shooting had occurred,” Covington replied that he was shot outside a nearby home, had driven himself to the gas station and identified the assailant as Richard “Rick” Bryant.

After the five- to 10-minute conversation, the victim was taken to a hospital, where he soon died."* Bryant was found guilty of second degree murder. He appealed, claiming his right to cross examine the witness under the Constitution’s confrontation clause was violated, and his conviction was overturned.

Yesterday the Supremes found in a 6-2 verdict that the dying man’s words fell under the “excited utterances” or “dying declaration” exception and reinstated the man’s conviction.

The 2 dissenters were Bader-Ginsberg and Scalia. Here’s a portion of what Scalia had to say on the matter: *“Today’s tale – a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose – is so transparently false that professing to believe it demeans this institution. . . In its vain attempt to make the incredible plausible, however – or perhaps as an intended second goal – today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the court makes itself the obfuscator of last resort.”

. . . “For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.”* I think I have to side with Scalia on this one. Is he right? What kind of precedent does this ruling set for future cases? How might it be applied, or, misapplied as the case may be? I’m not an attorney, but I’m finding this ruling unsettling on a gut level, so perhaps the more knowledgeable folks around here might persuade me otherwise.

Without going into the case in too much depth, I don’t see the problem here - it seems to fit into a hearsay exemption, and the Confrontation Clause problem only comes in if the person making the statement is available, I thought (not a criminal lawyer, but just wrote an appeals brief focusing on the Confrontation Clause).

The statement is obviously hearsay, but it does seem to fall under the exemption, and the circumstances give it indicia of reliability - it seems unlikely someone would use their dying breath to deliberately identify the wrong person. Now the jury should treat the statement with a lot of caution - how reliable is an ID in that situation, for example. But I don’t (without reading the case) see what the problem is here.

Frankly, what I would find unsettling is the idea that I could know my killer, name him clearly and unambiguously to the police, and have my statement ignored because I died soon after.

Yes, I would think that it ought to have some value as evidence, but for a jury to convict, it would need evidence to corroborate it (as they had in this case).

According to another site I was reading about this case, the dying declaration exception to the hearsay rule should not apply because the man did not in fact know he was dying; indeed, he was anticipating the arrival of EMS and, presumably, his survival. Thus, his statement was not an informed dying declaration, even though he in fact died shortly thereafter.

The site also noted that, even for Scalia, the dissent was blistering.

IANAL and I didn’t read the decision. So just my general thoughts on the subject.

All testimony is based on credibility. People can and do lie in courtrooms. The idea is that they’ll tell the truth in a courtroom setting because they took an oath and face the prospect of perjury - this reinforces the idea that what they’re saying is serious.

In my opinion, dying is equally serious. I feel that what a person says on his deathbed is as credible as what they say in a courtroom.

Scalia does raise a vaild point about the inability to confront the witness in dying word testimony. It’s not completely eliminated - a defendant can still dispute the testimony even if he can’t face the witness directly. But, in my opinion, the value of allowing the testimony outweighs the debit of limited confrontation.

He hates it when anyone else gets in the last word.

Do we know what the deceased was doing at the perpetrator’s home? Perhaps he was trying to burglarize the home and Bryant shot him in self-defense? How do we know it was 2nd degree murder and not manslaughter or some other lesser crime, if a crime at all?


Is the fact the guy DIDNT think he was dying supposed to make his statement LESS reliable or more?

Less. But Scalia doesn’t think indicia of reliability are important to Confrontation Clause matters, unless I am misremembering my Crawford.

No - to be honest, I haven’t read the case. And I would be incredibly wary admittign this testimony for anything other than an indentification of the assailant. “Bill shot me” is a lot more reliable IMHO than “Bill shot me - he’s always hated me - he was lying in wait for me when I got home and shot me in cold blood.”

But I will stress I am not a criminal lawyer, and Evidence class was a long time ago. Bricker would certainly have more intimate knowledge of the workings of hearsay and the Confrontation Clause in criminal cases.

I say no. The only reason Bryant’s lawyer cannot cross-examine the witness is because his client killed him. I don’t know why you’d want to reward the destruction of evidence any more than you have to.

If that was the case, they should have made a defense on the basis that Bryant engaged in lawful self-defense.


Seems to me if anybody would lie because they think they will get away with it, it would be a dying person.

So Scalia’s dissension boils down to “it’s obviously ridiculous to allow this evidence, and the reasons why are so obvious that I don’t need to explain it”? Personally, I think it would be absurd to not allow and give significant weight to that evidence.

Quoth Shayna:

It’s not like the entire case is decided solely on the basis of this declaration. Presumably, if Bryant shot him in self-defense, then he would raise that as part of his defense. In that case, the fact that Bryant shot Covington would be undisputed, and so allowing Covington’s statement wouldn’t even change anything.

This is pretty interesting. I’ve watched more Law & Order episodes than I can count, so my first thought was “dying declaration - end of story.” I didn’t realize that exception only applies to people who know they are dying. Right now I think there’s a good case to be made for or against the inclusion of this kind of testimony. But I think Scalia is right to be skeptical of the notion that the questioning of Covington didn’t count as an interrogation and that it was done as part of assessing the situation instead of getting testimony for a prosecution. That doesn’t pass the smell test.

I’d be interested in reading more about the actual case, as well. I wonder what his defense was against the charge of 2nd degree murder in the original case.

Does Bader-Ginsberg’s statement that “the [“dying declaration”] question was never raised in the original appeal, so could not be resolved by the court,” have any merit?

Look, I don’t want to have evidence “destroyed” at all. And I sure as hell don’t want murders to get off scott free just because their victims happen to die (which, if they were murdered, would naturally be the outcome) and can’t testify against them.

But I can’t shake the notion that Scalia was right when he said, “For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires.”

Less. As I understand it (IANAL), the exception allowing dying words is based on the idea that someone who knows they are dying wouldn’t use their last breath to tell a lie.

It’s a pretty dubious theory, especially for a legal principle. This case would seem to highlight some other problems with our legal system as well. I’ve learned from multiple threads here that in a jury trial the judge is supposed to decide the law and the jury is supposed to decide the facts. But this shows how inseparable those are. If BrotherCadfael is correct, then according to Scalia and Ginsburg the decision of whether to admit the dying words of the victim depends on whether the victim knew he was dying–which is exactly the kind of thing juries are asked to decide all the time, but not in this context.

If the judge wants to disallow the dying words as testimony, he has to rule on the facts as well as the law, and the jury will have no opportunity to make their own determination of the testimony’s reliability. OTOH, if the judge simply allows the testimony, the jury could still decide to disbelieve it, but the accused has (according to Scalia and Ginsburg) been denied his rights.

The alternative, it seems to me, is to allow the testimony, but to inform the jury that they are to consider the testimony if and only if they believe the victim knew that he was dying. Juries are told all the time to disregard information they have previously been given, and are presumed capable of doing so. They are also given all sorts of complex sets of facts and conditions to evaluate. I don’t see any reason in legal theory (again, IANAL) why a jury should be seen as incompetent to take the judge’s conditional ruling into account in evaluating the case. Nevertheless, I don’t see judges ceding that power to the jury, and I imagine it would invite an appeal from both sides the first time it was tried. The Supreme Court could certainly have imposed such a solution, though.

ETA: Looks like there’s a lot more to this, if the dying words exemption wasn’t even brought up originally.

I think the assumption is that (a) they cannot gain from a lie and (b) lying their with your guts hanging out and blood pooling around you, you probably won’t be thinking “how can I screw up Tony for stealing my girlfriend back in 4th grade - I know, I’ll frame him for murder.”

Don’t get me wrong - there are some red flags even from your quote. I am getting the impression of a situation where the police didn’t particularly like either the assailant or the victim. I idea they kept him with a bullet in his gut, in great pain, having difficulty talking, for 5-10 minutes is a little worrisome. Maybe that is the length of time the ambulance took to come. But I don’t think it too unlikely the conversation was more along the lines of “tell us who did this if you want to go to hospital.”