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

Great Debates
41

>>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?<<

Suppressing physical evidence, in this case the weapon, would be an attack under a Fourth Amendment analysis (search and seizure), rather than excluding evidence at trial because of the Sixth Amendment.

The question with respect to the search for and seizure of the weapon would be a probable cause determination. It’s perfectly permissible to rely on hearsay evidence in developing probable cause, for either a warrant, or an “exigent circumstances” search and seizure based on that PC.

I haven’t read the case, but it’s also quite possible that the cops found the weapon pursuant to a stop of the person not requiring PC, and a subsequent patdown, or even search.

>>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”? <<

If the cops had to explain, it would be in pretrial motions, out of the presence of the jury. Once the judge rules the weapon admissible, the cops don’t have to explain what led them to it to a jury. If the judge has ruled the hearsay statement inadmissible, but not the weapon, then the defense might always “open the door” by asking questions. That’s called malpractice.

42

From the Supreme Court ruling, explaining the Michigan Supreme Court’s ruling to overturn the guilty verdict and order a new trial:
“The [Michigan Supreme] court therefore assessed whether Covington’s statements to the police identifying and describing the shooter and the time and location of the shooting were testimonial hearsay for purposes of the Confrontation Clause. The court concluded that the circumstances “clearly indicate that the ‘primary purpose’ of the questioning was to establish the facts of an event that had already occurred; the ‘primary purpose’ was not to enable police assistance to meet an ongoing emergency.” Id. , at 143, 768 N. W. 2d, at 71. The court explained that, in its view, Covington was describing past events and as such, his “primary purpose in making these statements to the police . . . was . . . to tell the police who had committed the crime against him, where the crime had been committed, and where the police could find the criminal.” Id. , at 144, 768 N. W. 2d, at 71. Noting that the officers’ actions did not suggest that they perceived an ongoing emergency at the gas station, the court held that there was in fact no ongoing emergency. Id. , at 145–147, 768 N. W. 2d, at 71–73. The court distinguished the facts of this case from those in Davis , where we held a declarant’s statements in a 911 call to be nontestimonial. It instead analogized this case to Hammon v. Indiana , which we decided jointly with Davis and in which we found testimonial a declarant’s statements to police just after an assault. See 547 U. S., at 829–832. Based on this analysis, the Supreme Court of Michigan held that the admission of Covington’s statements constituted prejudicial plain error warranting reversal and ordered a new trial. 483 Mich., at 151–153, 768 N. W. 2d, at 75–76.”

Seems pretty straightforward to me.

Continuing:
*"To address the facts of both cases, we expanded upon the meaning of “testimonial” that we first employed in Crawford and discussed the concept of an ongoing emergency. We explained:

“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 primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis , 547 U. S., at 822 ."*
So, Covington tells 5 different police officers that he was shot through a closed door where the shooter had been inside his own house.

Is there anyone here who would in a million years believe that Bryant was causing an “ongoing emergency” from inside his own home? I certainly wouldn’t. Yet Sotomayor inexplicably did. Continuing:
*We now face a new context: a nondomestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim. Thus, we confront for the first time circumstances in which the “ongoing emergency” discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large. This new context requires us to provide additional clarification with regard to what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. , at 822. *
And this is where I call bullshit right along with Scalia.

“A perpetrator whose location was unknown”?

That is complete bunk.

Until they arrived at the home and actually found him gone, they had every reason to believe that the perpetrator was at home, since that’s where the victim said the shooting took place, and that’s directly where they headed to find the guy. What reasonable evidence would lead police to believe Bryant wouldn’t still be in his home? Obviously they later learned that he had left, but they had no evidence of that at the time of their interrogation of Covington. Which means they had no evidence that there was an ongoing threat, let alone a reasonable assumption that there was.

And given that Covington was on Bryant’s property at the time of the shooting, a reasonable assumption could be made that Bryant wasn’t a threat to society at large, but merely to trespassers on his own property. So unless someone else came to his door, banging on it at 3AM, I highly doubt this guy was a danger to the average citizen on the street in that moment.

Scalia is so right here.

http://www.law.cornell.edu/supct/html/09-150.ZO.html

43

What if the cops had some sort of recording device on, and got an audio recording of what the victim said? That recording could then just be played directly in court, and I presume would not be considered hearsay. Would the bit about confronting witnesses be a problem then?

44

Frankly, I’m unable to understand why the words of someone who knows he’s dying would be more credible than the words of someone who doesn’t.

If I’m dying and hold a grudge, why wouldn’t I lie?

It seems to me that it would be true only in the context of a highly religious society, where people are expected not to lie on their deathbed (for instance a catholic who had already made a confession and received the last rites wouldn’t want to buy a ticket to hell by uttering a false accusation at this point).

Out of curiosity : I mentioned recently in another thread a weird French case, and I’m wondering how it would be handled in the US, in regard of the current debate. The victim was found in a room locked from the inside, with the following message written with her own blood on the door “Omar killt me” (intentional weird spelling mistake for “killed” as there was one in the French case, leading to a lot of confusion and arguing).

I assume that, since the writing on the door is a material evidence, it would be admissible in court (or would it?).

But then, let’s assume that instead of being found dead, she was found dying and uttered the same words to the police officer. As in the case being discussed, she didn’t know at this point that she was going to die.

In the first case, there isn’t even an absolute certainty that the victim was the person who wrote the message. If she was, there’s no way to know her mental state at the time (maybe she wasn’t anymore mentally able to remember clearly what happened). So, this evidence is much more uncertain than a direct statement to the police officer. However, it will most certainly be damageable to the defendant if presented to the jury.

So, for people who argue that the last words of the man discussed here shouldn’t be admissible in court, do they think that a picture of the door with the message on it should be presented to the jury? If they don’t, why? If they do, isn’t there a contradiction (accepting to present an even less reliable piece of evidence of a quite similar nature)?

45

Thanks for the clarifications.

Sorry, you lost me. Who would have committed malpractice – the defense attorney? Who would charge him with malpractice? The state? Why wouldn’t the prosecution just cut off the question, make an objection and the judge sustain it?

46

You’re begging the question, here. You’re assuming guilt, and propose this as a reason why the evidence should be used to decide on guilt.

47

>>What if the cops had some sort of recording device on, and got an audio recording of what the victim said? That recording could then just be played directly in court, and I presume would not be considered hearsay. Would the bit about confronting witnesses be a problem then?<<

Hearsay is defined as an “out of court statement offered to prove the truth of the matters asserted (within the statement).” As the recording played to the jury would be of an out of court statement, and if it was offered as proof of something contained within the statement, it would be hearsay. Just the same as if the statement was testified to by the police officer, without the recording. Therefore, admissibility would depend on the same analysis.

48

>>Sorry, you lost me. Who would have committed malpractice – the defense attorney? Who would charge him with malpractice? The state? Why wouldn’t the prosecution just make an objection and the judge sustain it?<<

I was sorta joshing. There could be reasons why the defense would want such evidence in.

But for this case, if the defense successfully suppresses the statement, he wants it kept out of evidence. When the cop gets up to testify about the gun, he wouldn’t be permitted (on direct examination by the prosecutor) to include the statement in explaining what led him to the gun. However, if the defense asked the kind of questions which challenged how and why he happened to find the gun, the judge would probably let the cop answer.

If the defense is successful in keeping the statement out by pretrial suppression motions, but then makes the statement relevant BY HIS QUESTIONS, then he’s said to “open the door” to what is otherwise inadmissible evidence. That would be a “no-no,” in terms of professional competence, I would think.

49

Or Bryant could have gone postal and shoot other people later, or the police officers who were on the scene. Besides, how the officers could have known that the shooter was the house owner before asking? For all they know, it could have been some criminal on the loose hiding nearby in the dark.

So, asking the question seems to me to be a perfectly sensible action that could very possibly prevent other deaths. Looks to me like a correct response to an actual emergency.

If there was a shooting near your house, would you want that the police doesn’t ask any question and just assume that there’s no more any danger? Or would you think that someone lying in a pool of blood in front of your house, or in you’re neighbor’s house is a quite clear indication in itself that there’s an ongoing emergency?

50

Maybe I’m missing something, but I took Scalia to be impugning the credibility of the police who reported what the dead guy said (conveniently naming the guy they already had in mind), not the credibility of the dead guy himself.

51

I’m not suggesting the police shouldn’t have asked him questions and pursued the alleged shooter.

I’m disputing that the victim’s statements were allowable hearsay under the “dying declaration” exception. From what I’m reading, I concur with Justice Scalia, that the interrogation of the victim falls under “testimony” and that by allowing it, without allowing the alleged perpetrator to cross examine it, is a violation of the alleged perpetrator’s rights under the confrontation clause of the constitution.

The police can claim all they want that they didn’t know the location of the shooter, but they reasonably concluded that the most likely place he was, was at his home where the shooting occurred, which is why they went there to find him. The fact that he wasn’t there was incidental. He hadn’t harmed nor threatened anyone in the intervening 30 minutes between the shooting and the police coming on scene. The victim didn’t tell them that he observed his assailant leave the house. In fact, he hadn’t seen him at all, had only heard him through the door.

I’m not suggesting that Bryant isn’t guilty or that I’d prefer him to go free because his rights were violated. I’m suggesting that the Michigan Supreme Court ruled correctly that Covington’s words were “testimony” and that a new trial should occur, without that particular piece of “evidence”. I have little doubt that the remainder of the evidence (Covington’s blood on Bryant’s back porch, Bryant in possession of an illegal gun (presumably the gun used to shoot Covington), the bullet hole in Bryant’s door, etc.) would be sufficient without the “Covington identified him as the shooter” evidence.

52

Neither, actually. He’s saying the majority have stretched the “ongoing emergency” definition beyond the point of absurdity.

53

In this regard, it is perhaps noteworthy that the several police officers disagreed about what the dying man said, as I understand it.

54

Interesting. Do you have a link for where you read that? If there’s disagreement about facts, how can they be entered into evidence in the first place? This case just keeps getting weirder and weirder.

55

"“This is an absurdly easy case,” Justice Scalia wrote. Mr. Covington’s statements, he said, “had little value except to ensure the arrest and eventual prosecution of Richard Bryant.” Indeed, he said, his exchange with the police resembled “a routine direct examination” at trial.

"Justice Scalia added that the majority had smuggled back into the law a factor that the Crawford decision had rejected — whether the out-of-court statements were “reliable.”

"“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty,” Justice Scalia wrote for the majority in Crawford. “This is not what the Sixth Amendment prescribes.” "

http://www.nytimes.com/2011/03/01/us/01scotus.html

56

Permitting the statements to be used as evidence in court is not the same thing as concluding that the statements are obviously reliable. The defense could, if they wanted, argue that the victim was mistaken, or that he was holding a grudge against the defendant and therefore might be lying, or that the police’s memory of the questioning was faulty, or in many other ways dispute the reliability of the statements.

57

Here is a 57-page pdf of the opinions. On pdf page 29, it says:

[QUOTE=Supreme Court]
The officers basically agree on what information they learned from Covington, but not on the order in which they learned it or on whether Covington’s statements were in response to general or detailed questions. They all agree that the first question was “what happened?” The answer was either “I was shot” or “Rick shot me.”
[/QUOTE]

The Court refers to the officers’ testimony as “essentially consistent,” and it sounds like there were subsequent questions where the accounts of the victim’s statements converged on identification of the defendant. The different accounts do not sound identical, though.

58

Sorry, I didn’t mean it as an attack on you. More that when they say “dying words” it conjures up a different image to that which appears to have actually happened.

59

Okay, I’ve done a little more reading.

It’s not really an issue of whether it was Covington’s dying statement. The issue is the circumstances in which the police were questioning Covington.

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.

Now in this particular case, Covington was dead and could not offer testimony himself. But the police could offer his statements as admissable hearsay evidence if it was gathered as part of an attempt to stop an ongoing crime but not if it was gathered as part of a regular investigation.

So the issue that was being ruled on was whether or not the police who questioned Covington had reason to think the crime was still in progress - that the shooter might still have his gun and might be shooting other people.

The majority, with Sotomayor writing the decision, felt that that was a reasonable belief. Scalia disagreed - he said the police had no reason to think the shooting was part of a series of shootings and did not act like they believed that at the time. Therefore the questioning should be regarded as a post-crime investigation and Covington’s statment should be inadmissable.

In this case I have to agree with Scalia. The police had no reason to think this particular crime was part of an ongoing crime and it would be an expansion of police powers to say that any crime could be treated as a possible ongoing crime.

60

And they knew the shooting had occurred 30 minutes prior to coming on scene, they learned through their questioning that it happened at Bryant’s home while Bryant was on the inside and Covington on the outside. 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.