# High court says victim's dying words can be used in court **URL:** \ **Category:** Great Debates\ **Created:** [March 1, 2011, 7:39pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095 "2011-03-01T19:39:41Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [March 1, 2011, 8:52pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/21 "2011-03-01T20:52:43Z")
It would be problematical if it were the only evidence in the case. I doubt that it was. It is just another part of the case. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [March 1, 2011, 9:00pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/22 "2011-03-01T21:00:09Z")
> [@villa](#): > > 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.” That’s also bothering me. It doesn’t sound like five cops needed five or 10 minutes to get this information out of the guy. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [March 1, 2011, 9:00pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/23 "2011-03-01T21:00:52Z")
> [@Grumman](#): > > I say no. The only reason Bryant’s lawyer cannot cross-examine the witness is because his client killed him. Kinda like killing your parents, then asking the jury for leniency since you are an orphan. ---
**Author:** ![Randy\_Seltzer](https://avatars.discourse-cdn.com/v4/letter/r/ee7513/32.png) [@Randy\_Seltzer](https://boards.straightdope.com/u/Randy_Seltzer)\ **Post date:** [March 1, 2011, 9:13pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/24 "2011-03-01T21:13:07Z")
Just wanted to clear up something about this issue, because a couple of people seem confused: Any hearsay statement offered against a defendant in a criminal trial must meet two tests to be admissible. First, it must fall within an exception to the hearsay rule, and second, it must not go afoul of the confrontation clause. In the case at hand, the first test is arguably met by [federal rule 804(b)(2)](http://www.law.cornell.edu/rules/fre/rules.htm#Rule804), the dying declaration rule. Yes, the speaker must reasonably believe he is about to die. The second test is more tricky. The essence of the rule is that if a statement is made for the purpose of producing trial-type testimony (“testimonial”) then the statement may not be offered against the defendant unless he (the defendant) has an opportunity to cross examine the speaker. This rule applies even if the speaker is dead. There is a great deal of jurisprudence surrounding what counts as testimonial and what doesn’t. The classic example is when a panicked woman calls 911 and screams that her husband is beating her, and begs the police to save her. She manages to escape to safety with the phone, and then gives the dispatcher details about what he did. At trial, the woman refuses to testify, citing the marital privilege. The first statements, begging the police to come help, may be admitted, as a hearsay exception applies, and they were not intended to be testimony – they were intended to get her some help. The second statements, however, may not be admitted. A hearsay exception still applies, but now the purpose of the statements was not to get her help – she no longer needed it – but to provide evidence against the defendant. It looks like in this case, a bunch of police officers went up to the victim and interviewed him one by one, calmly getting details about what had happened. It seems pretty clear that they weren’t trying to do anything but gather evidence against the defendant. In other words it looks like Scalia is correct (though I haven’t read the case). Under current jurisprudence, this is an incorrect ruling, or at least a ridiculous stretch of the facts. However, I personally believe the confrontation clause jurisprudence has gone too far, and perhaps this case might be the beginning of some scaling back. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [March 1, 2011, 9:17pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/25 "2011-03-01T21:17:59Z")
> [@villa](#): > > 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.” Actually thats my master plan 🙂 But seriously, I think you can easily make the arguement either way as to whether a dying (when you know you are) declaration is more or less likely to be factual. I can’t get my panties in a wad about this decision. Assuming of course you have reasonable jurors that would expect some OTHER evidence before declaring Tony 🙂 guilty. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 1, 2011, 9:18pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/26 "2011-03-01T21:18:00Z")
> [@Alan\_Smithee](#): > > 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. How is it any more dubious than the established legal principle that touching a bible makes you tell the truth? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 1, 2011, 9:27pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/27 "2011-03-01T21:27:52Z")
> [@Randy\_Seltzer](#): > > It looks like in this case, a bunch of police officers went up to the victim and interviewed him one by one, calmly getting details about what had happened. It seems pretty clear that they weren’t trying to do anything but gather evidence against the defendant. > > In other words it looks like Scalia is correct (though I haven’t read the case). Under current jurisprudence, this is an incorrect ruling, or at least a ridiculous stretch of the facts. However, I personally believe the confrontation clause jurisprudence has gone too far, and perhaps this case might be the beginning of some scaling back. So you’re saying that it apparently wasn’t really a dying statement in any meaningful sense. Neither the victim nor the questioners were aware the victim was about to die. If so, I can see the point. Suppose the police are just conducting a random interview with somebody who was involved in a crime and he tells them his story. Obviously his statement wouldn’t be admissable unchallenged - lots of people at a crime scene have reasons to lie. But then suppose that right after the guy gives his statment, a flowerpot falls off the roof of a nearby building and strikes him dead. Does that suddenly make his statement a dying statement and render it more credible? I think most people would agree that it is no more credible than it would have been if he had lived. The case in question seems to fall somewhere in between. The victim had been shot and died of being shot, so his death was a result of the act he was talking about and he must have had some awareness that his life was in jeopardy. I should probably read the whole decision. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 1, 2011, 9:50pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/28 "2011-03-01T21:50:04Z")
> [@Little\_Nemo](#): > > How is it any more dubious than the established legal principle that touching a bible makes you tell the truth? There is no such legal principle. There is a legal principle that when a person announces in public that they are going to tell the truth, accompanied with sanctions for not telling the truth, accompanied with a declaration on an authority which many people believe encourages truth telling, they are more likely to tell the truth when they have not done the above. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 1, 2011, 9:52pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/29 "2011-03-01T21:52:52Z")
> [@Little\_Nemo](#): > > So you’re saying that it apparently wasn’t really a dying statement in any meaningful sense. Neither the victim nor the questioners were aware the victim was about to die. The thread title seems a little off here - it isn’t “dying words” in the sense the hearsay objections usually use them. There’s no last gasp, raising of the bony finger and pointing to the butler, raspy voice saying “it was him.” On review, it doesn’t seem to fit either into excited utterance - to me that is when you get shot, hit the floor, a cop runs up and says “who did it” and you reply immediately. I think Scalia might be right here (as he often is on criminal matters). ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [March 1, 2011, 10:11pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/30 "2011-03-01T22:11:27Z")
Scalia doesn’t seem to believe the police officers’ claim that they were trying to get information to help catch a killer on the loose, rather than trying to elicit testimony. His suspicion is probably correct. It’s problematic because it highlights a loophole by which prosecutors can get these types of statements admitted - if a murderer is on the loose (they often will be), police can just claim that they questioned the dying witness to learn the identity of the perpetrator in order to prevent a violent rampage, rather than to gather testimony. Just like how police can abuse their ability to conduct Terry stops and patdowns - I think this guy has drugs, but I’ll claim I thought it was a weapon and frisk him without probable cause. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 1, 2011, 10:17pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/31 "2011-03-01T22:17:41Z")
> [@MOIDALIZE](#): > > Scalia doesn’t seem to believe the police officers’ claim that they were trying to get information to help catch a killer on the loose, rather than trying to elicit testimony. His suspicion is probably correct. _Crawford_ says that testimony in criminal cases is not only hearsay, but a constitutional violation because of the 6th Amendment right to confront one’s accusers. However, this right only attaches to testimonial evidence. The Court has never defined what testimonial evidence is, but police interrogations are considered testimonial in this way. What isn’t, on the other hand, is background information. Judges often permit crap loads of testimony about the accused from DEA Agents, including the statements of someone who didn’t testify. That’s classic hearsay, but it often gets in as background - it isn’t to prove the truth of it itself, but instead to explain why the police were looking at the person. It’s not a satisfactory line at all. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [March 1, 2011, 10:17pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/32 "2011-03-01T22:17:53Z")
How is it abuse if police ask someone who has been seriously injured, “Do you know who did this to you?” It seems to me to be a normal question to ask, for a variety of reasons: to apprehend that person, to stop him hurting others, to gather evidence and testimony from that person, and in the long term to get that person convicted. The only problem is, if the victim dies, the person named cannot challenge the testimony. However, that’s not the fault of the police, and it possibly is the fault of the person named. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 1, 2011, 10:22pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/33 "2011-03-01T22:22:42Z")
> [@Giles](#): > > How is it abuse if police ask someone who has been seriously injured, “Do you know who did this to you?” Who is suggesting it is abuse? However, if the victim is pumping blood all over the place from being gut shot, the first aim should be to save his life. And believe me, in many instances, the police don’t see a person with a GSW as an innocent victim (because in many instances they aren’t an innocent victim). Having a guy in extreme pain, waiting for hospital treatment, can provide a very valuable opportunity for interrogation. A person won’t always tell the police who shot him, for multiple reasons. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [March 1, 2011, 10:27pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/34 "2011-03-01T22:27:00Z")
> [@Giles](#): > > How is it abuse if police ask someone who has been seriously injured, “Do you know who did this to you?” It seems to me to be a normal question to ask, for a variety of reasons: to apprehend that person, to stop him hurting others, to gather evidence and testimony from that person, and in the long term to get that person convicted. The only problem is, if the victim dies, the person named cannot challenge the testimony. However, that’s not the fault of the police, and it possibly is the fault of the person named. In this case, given that the police found physical evidence of the murder at the defendant’s home, I’m not sure the victim’s statement was even necessary to convict. But what if there hadn’t been any physical evidence? Would we be comfortable having these types of statements admitted against someone in trial? How do we know the police didn’t lead him on (“Did Rick shoot you? It was Ricky, wasn’t it?”)? ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [March 1, 2011, 10:35pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/35 "2011-03-01T22:35:53Z")
> [@villa](#): > > Who is suggesting it is abuse? > > However, if the victim is pumping blood all over the place from being gut shot, the first aim should be to save his life. Asking while you wait for the paramedics to arrive, after you’ve done everything that a police officer can do (with limited first-aid training) is consistent with that first aim. ---
**Author:** ![Randy\_Seltzer](https://avatars.discourse-cdn.com/v4/letter/r/ee7513/32.png) [@Randy\_Seltzer](https://boards.straightdope.com/u/Randy_Seltzer)\ **Post date:** [March 1, 2011, 10:40pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/36 "2011-03-01T22:40:15Z")
> [@Little\_Nemo](#): > > > [@Randy\_Seltzer](#): > > > > It looks like in this case, a bunch of police officers went up to the victim and interviewed him one by one, calmly getting details about what had happened. It seems pretty clear that they weren’t trying to do anything but gather evidence against the defendant. > > > > In other words it looks like Scalia is correct (though I haven’t read the case). Under current jurisprudence, this is an incorrect ruling, or at least a ridiculous stretch of the facts. However, I personally believe the confrontation clause jurisprudence has gone too far, and perhaps this case might be the beginning of some scaling back. > > So you’re saying that it apparently wasn’t really a dying statement in any meaningful sense. Neither the victim nor the questioners were aware the victim was about to die. [snip] Not really. I’m saying that whether it was a dying declaration is a totally different question from whether it was testimonial. Both questions have to be answered before something can be admitted as evidence, and this case really seems to be about the second question. Though the first question is much sexier and makes for much better crime drama plots. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 1, 2011, 11:00pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/37 "2011-03-01T23:00:34Z")
> [@Giles](#): > > Asking while you wait for the paramedics to arrive, after you’ve done everything that a police officer can do (with limited first-aid training) is consistent with that first aim. I never said it wasn’t. But it can be problematic, if the person doesn’t want to talk to you, and maybe you drop in to the conversation that unless they tell you, the ambulance might be late, or they might get bumped on the way into the back of it. ---
**Author:** ![JoelUpchurch](https://avatars.discourse-cdn.com/v4/letter/j/f05b48/32.png) [@JoelUpchurch](https://boards.straightdope.com/u/JoelUpchurch)\ **Post date:** [March 1, 2011, 11:06pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/38 "2011-03-01T23:06:39Z")
I did a quick google scan of the case and one thing I can’t find is a statement that the firearm in Bryant’s possession was a ballistic match with the bullet that shot Covington or even the same caliber. If Bryant’s gun actually shot Covington, then it isn’t clear that it is necessary to introduce Covington’s statement to get a conviction. If it wasn’t the murder weapon, then we need to consider the possibility that Covington’s identification was mistaken. ---
**Author:** ![Shayna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shayna/32/17976_2.png) [@Shayna](https://boards.straightdope.com/u/Shayna)\ **Post date:** [March 1, 2011, 11:36pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/39 "2011-03-01T23:36:45Z")
> [@Marley23](#): > > That’s also bothering me. It doesn’t sound like five cops needed five or 10 minutes to get this information out of the guy. Which is why Scalia was basically calling bullshit on the majority concluding that the situation was, “OMG, frantic, hurry, shooter on the loose, shooter on the loose, hurry, hurry.” [anecdotal irrelevant assumption] I’ll tell you why it takes 5 cops spending 10 minutes to question a guy – they’re bored and this is WOO HOO exciting! I called the non-emergency number for our local police to report a drunk teenager on a skateboard who had literally fallen down drunk on our front porch steps and asked them to please come collect him. My next door neighbor had done the same thing, because he had first gone to her door asking for a ride home. She added the information that the kid was on his skateboard and was so drunk that he ran into a parked car. It took about 60 seconds for 5 police cars, 2 ambulances and a fire truck to show up. For one drunk teenager. They were bored and this was an exciting case.[/irrelevant anecdote] > [@Randy\_Seltzer](#): > > It looks like in this case, a bunch of police officers went up to the victim and interviewed him one by one, calmly getting details about what had happened. It seems pretty clear that they weren’t trying to do anything but gather evidence against the defendant. > > In other words it looks like Scalia is correct (though I haven’t read the case). Under current jurisprudence, this is an incorrect ruling, or at least a ridiculous stretch of the facts. However, I personally believe the confrontation clause jurisprudence has gone too far, and perhaps this case might be the beginning of some scaling back. Thanks for the clarification. I agree with your conclusion. > [@villa](#): > > The thread title seems a little off here I just took it directly from the news article I was quoting. > [@MOIDALIZE](#): > > In this case, given that the police found physical evidence of the murder at the defendant’s home, I’m not sure the victim’s statement was even necessary to convict. Wouldn’t that evidence have been considered “fruit from the poisoned tree” if the hearsay evidence that led them to it, should not have been allowed to be introduced? If they throw out the “excited utterance”, don’t they have to exclude any evidence obtained as a direct result of said utterance? And if that’s not how it works, and they can include the evidence found in the home, how do they explain how they managed to find it there, if they aren’t allowed to say, “the dead guy told us where to look”? > [@MOIDALIZE](#): > > But what if there hadn’t been any physical evidence? Would we be comfortable having these types of statements admitted against someone in trial? How do we know the police didn’t lead him on (“Did Rick shoot you? It was Ricky, wasn’t it?”)? I wonder if the police were put on the stand to testify as to how they went about questioning the victim. ---
**Author:** ![Randy\_Seltzer](https://avatars.discourse-cdn.com/v4/letter/r/ee7513/32.png) [@Randy\_Seltzer](https://boards.straightdope.com/u/Randy_Seltzer)\ **Post date:** [March 1, 2011, 11:48pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/40 "2011-03-01T23:48:06Z")
> [@Shayna](#): > > Wouldn’t that evidence have been considered “fruit from the poisoned tree” if the hearsay evidence that led them to it, should not have been allowed to be introduced? If they throw out the “excited utterance”, don’t they have to exclude any evidence obtained as a direct result of said utterance? The “poison tree” doctrine doesn’t apply here. That’s where the police do something illegal, which leads to more evidence being discovered. There’s nothing illegal about asking a victim questions. Evidence can be excluded because the police did something bad, or because it’s against the governing rules of evidence. This is a case (arguably) of the latter. [Previous page](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095.md?page=1) [Next page](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095.md?page=3)