# 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:** 9\ **Page:** 4
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [March 2, 2011, 5:41pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/61 "2011-03-02T17:41:18Z")
> [@Shayna](#): > > A reasonable person wouldn’t be worried that Bryant was about to shoot yet another potential victim through his back door, 30 minutes after having shot the first one. Yep. Me, too. Maybe I’m not a reasonable person, but I would definitely be worried about this. ---
**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 2, 2011, 9:56pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/62 "2011-03-02T21:56:58Z")
> [@clairobscur](#): > > Maybe I’m not a reasonable person, but I would definitely be worried about this. Do you really suppose the odds are good that a random guy will show up at this same guy’s back door at 3:30 in the morning, antagonize him in whatever way the deceased obviously did, and the dude in the house shoot _him_, too? Covington didn’t say that Bryant had any hostages in the house, or that he witnessed Bryant leaving with his weapon in hand, each of which might have led a reasonable person to assume a crime might be ongoing. But Covington was able to get away, get to and in his car and drive off, without Bryant coming out of his house after him to make sure he finished the job. And at least 30 minutes had passed without further incident. Bryant certainly didn’t follow Covington to the gas station, so he was no longer in danger from his assailant. I really am truly stymied as to how 6 Justices twisted the circumstances into it being an “on-going crime.” A guy got shot 30 minutes prior and ran off. The end. Now, I could see if Covington had told the cops that his assailant was positioned on top of a nearby building and took a sniper shot at him from across the street, that they would find that to be a potentially on-going crime. But Bryant was in his own house, being disturbed at 3:00 in the friggin’ morning by some jerk banging on his back door. He didn’t even bother to _open_ the door before shooting at him. That doesn’t strike me as the kind of circumstances where police would have to worry about a gunman on the loose. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [March 2, 2011, 10:26pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/63 "2011-03-02T22:26:27Z")
> [@Little\_Nemo](#): > > In general, if the police are questioning people about a crime, the statements of the people cannot be used as evidence unless the defense can cross-examine the witness. This also includes a police officer testifying as to what he was told by a witness (hearsay). > > But there are some exceptions. One is that is if the crime is still in progress. In such a situation the police are allowed much broader leeway because they are trying prevent the crime in progress rather than just investigating it after the fact. Can anybody explain why this is an exception? If the police were trying to prevent a crime in progress, this guys statement can be read into the trial without the defense cross examining him. If they weren’t trying to prevent a crime in progress, the exact same statement must be excluded. ---
**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 2, 2011, 11:09pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/64 "2011-03-02T23:09:10Z")
> [@Cheesesteak](#): > > Can anybody explain why this is an exception? > > If the police were trying to prevent a crime in progress, this guys statement can be read into the trial without the defense cross examining him. If they weren’t trying to prevent a crime in progress, the exact same statement must be excluded. Apparently all that was esablished in a previous 2004 decision on the confrontation clause. The justices, as far as I could tell, were only in disagreement about whether the standard applied here, not whether it existed. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [March 3, 2011, 12:30am UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/65 "2011-03-03T00:30:16Z")
> [@Shayna](#): > > Do you really suppose the odds are good that a random guy will show up at this same guy’s back door at 3:30 in the morning, antagonize him in whatever way the deceased obviously did, and the dude in the house shoot _him_, too? 1. How would you know all these details without first asking the wounded man in order to assess the situation? 2)In fact I would be worried that the shooter could be someone who went postal and would open fire on a random passerby, on the police officers, or would kill his family or commit suicide. Why would I make the assumption that the shooter only opens fire on people who antagonize him on his property at 3 in the morning? So, yes, I would consider that an emergency until it can be clearly established what the situation is. Which requires (amongst other things) asking the victim about what happened. ---
**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 3, 2011, 1:43am UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/66 "2011-03-03T01:43:18Z")
> [@clairobscur](#): > > 1. How would you know all these details without first asking the wounded man in order to assess the situation? You wouldn’t. You’d only know it after asking him all those questions. Whether or not the police should have “interrogated” the victim isn’t what’s at issue. It’s whether that questioning was “testimonial” or not. It’s not “testimonial” if, after asking those questions, the police determine that there is an ongoing threat or a crime still in progress. Here, the lower court ruled the statements by the deceased were not testimonial in nature and allowed the information he provided to be brought up at trial and entered into the record. But the defendant appealed on the grounds that his rights had been violated because he didn’t have an opportunity to confront his accuser. The Appellate court upheld the lower court’s ruling. So he appealed to the Michigan Supreme court, who found that Covington was, indeed, providing testimony since he was being questioned non-stop by as many as 5 different police officers, about an alleged crime that had occurred 30 minutes prior, for a duration of up to 10 minutes, much longer than needed to simply determine basic facts, like, what happened, where and when. They ruled that the witness statement must be excluded and ordered a new trial. The prosecution then appealed to the United States Supreme Court, where 6 Justices said the police _did_ have reason to believe the crime was ongoing, and therefore the witness statements were properly allowed and the original verdict of murder in the 2nd degree now stands. > [@clairobscur](#): > > 2)In fact I would be worried that the shooter could be someone who went postal and would open fire on a random passerby, on the police officers, or would kill his family or commit suicide. Why would I make the assumption that the shooter only opens fire on people who antagonize him on his property at 3 in the morning? Because you, had you actually been one of the police officers, would have gotten the kind of information necessary to determine whether or not a crime was still in progress, during the 10 minutes you bombarded him with questions. > [@clairobscur](#): > > So, yes, I would consider that an emergency until it can be clearly established what the situation is. Which requires (amongst other things) asking the victim about what happened. Which was the very first thing they asked. ---
**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 3, 2011, 3:32am UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/67 "2011-03-03T03:32:02Z")
> [@clairobscur](#): > > 2)In fact I would be worried that the shooter could be someone who went postal and would open fire on a random passerby, on the police officers, or would kill his family or commit suicide. Why would I make the assumption that the shooter only opens fire on people who antagonize him on his property at 3 in the morning? There are limits on what the police can do and these limits have some flexibility to allow the police to deal with unusual circumstances. But it’s wrong to allow the police to turn an unusual power into a routine power by invoking the argument that it might be possible that the unusual circumstances exist. Here’s a real world example. In NY prisons, a guard does not have the routine authority to order a prisoner to submit to a strip search. But there are circumstances in which a guard can strip an prisoner - for example, if he has reason to think the prisoner has a dangerous weapon concealed on his person. But the guard has to have a reason for thinking the prisoner is holding a weapon. He can’t just say that it’s theoretically possible that the prisoner is holding a weapon and he happens to believe it. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [March 4, 2011, 3:34am UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/68 "2011-03-04T03:34:33Z")
As long as I can remember, a dying statement has always been treated as more important and believable. The idea probably is as you meet your maker, you want to start on a good foot. Also, if you are covering up for someone, you don’t have to be afraid of them anymore. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 4, 2011, 9:56pm UTC](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095/69 "2011-03-04T21:56:43Z")
> [@Shayna](#): > > [High court says victim's dying words can be used in court - CNN.com](http://www.cnn.com/2011/CRIME/02/28/us.scotus.dying.statements/index.html?hpt=T2) > > \*"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. The _Crawford_ case established a witness making an out of court statement which is testimonial who is not available for trial and does not testify at trial is inadmissible as a violation of the Confrontation Clause of the 6th Amendment, unless A.) The defendant has had a prior opportunity to confront and cross-examine the witness and B.) The witness is unavailable at trial. The Court in subsequent decisions stated, “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the pirmary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” The fundamental disagreement between the majority and J. Scalia is whether the circumstances objectively indicate the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency or the circumstances indicate that there is no such ongoing emergency, and therefore, the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. I am not suggesting I agree with J. Scalia’s opinion, but I can certainly understand his frustration with the majority. On most occasions, a murderer is going to be on the loose and unapprehended for some amount of time but this fact alone does not demonstrate there is an “ongoing emergency.” Essentially, it is my opinion that the logic of the majority, when followed through to its logical ends, is going to allow the admissibility of such statements when and where the perpretator of a murderer is unapprehended and the police are speaking with the victim shortly after the crime. [Previous page](https://boards.straightdope.com/t/high-court-says-victims-dying-words-can-be-used-in-court/573095.md?page=3)