I was reading this article on the Julie Jensen murder where her husband was convicted based upon a letter she had written that implicated him in her own murder. From what I gather the defense held it was inadmissible as hearsay but the court decided it was ok as it amounted to a dying declaration (one has to wonder if she thought this way to the point of writing a letter why she would not just get the hell out of there but that is another discussion).
Why is or should such a thing be special? I presume they figure if someone is facing their last waking moments on earth they are likely to be more honest (or something) but I do not see why this presumption is held. Maybe on their way out they will take their last chance to stick it to someone since there will be no repercussions to them. And of course the person accused by the dying person has lost an avenue of defense to question what the person said since that person is now dead. Further, the woman was not on her deathbed and only guessing at this point that her husband intended to murder her so I do not see how it applies.
Note I am not taking the husband’s side here. I barely know anything of the case and have no opinion one way or the other. I am merely using it as my example because it occurred to me while reading the article. Just curious in the legal reasoning here.
Because if you are aware that you are dying, you have nothing to lose (and, for many folks) much to be gained from telling the absolute truth.
Self-interest doesn’t enter into it as much as when you have to think of the consequences. I expect one of the Great Legal Minds of the SDMB will be along shortly to correct me.
Yes, but shouldn’t the law take into account that there are spiteful SOB’s out there who may be looking to get back at someone for something and then implicate them in something they had no part in?
Let’s state bluntly what Shodan alludes to: Historically, many if not most people, no matter how shady their activities, had some manner of religious faith. Among many major faith traditions, the confession and abjuration of past evil deeds led to forgiveness for them. While the tenets of a religious faith are no part of criminal law, it is not required that the criminal law be sufficiently blind not to recognize that someone on their deathbed confessing a crime is no longer in fear of mortal courts and prisons but may well be trying to pave its way to forgiveness in another court known only to religious belief. Hence a deathbed confesssion can be regarded as reliable.
From Wiki. Based on the information in the article, it doesn’t seem to me that the Jensen case passes the first two tests – these presumably weren’t her last words, and while she was evidently fearful of her husband I think it’s a stretch to say she believed she was dying. Of course those tests are federal rules of evident and Wisconsin may operate under different standards.
Fair enough and doubtless there are many people out there who would be thinking along those lines. But not all people will (nor do I think you could say a vast majority would) and the law seems to be taking a presumption a bit far here since it reduces the rights of the defendant.
I dunno really. Just thinking out loud. I have always found the hearsay rules peculiar and never really felt them on a gut level (not that my gut matters one whit…just saying).
Informally, I see it this way. I am a police officer. Suppose I hear a gunshot. I run to the scene and see an injured victim, and the murderer has fled with the weapon. As he lays dying, I ask him, “Who did it?” He Says, “Rachel shot me.” Then he soon dies.
I would think his identification should be given some weight.
Normally, the point about not admitting hearsay is that the evidence is (at least theoretically) available directly from the source as it where.
I always understood the reason why it was admissable was that there was, in the case of a dying declaration, no better way of obtaining the same evidence in a non-hearsay way: if you don’t admit it as evidence, it will be lost forever, since you cannot question a dead person.
Just because a dying declaration is admitted as evidence doesn’t mean it’s conclusive. If the grudge you describe could be credibly established, then presumably the other party could be permitted to introduce evidence of it, to try to persuade the jury to disregard the dying declaration as an untruth from a spiteful SOB.
Nope, 'cause you’re correct. That’s generally the rationale given for the dying declaration exception: that traditionally, nobody wants to die with a lie on their lips, so a statement made in expectation of death carries greater weight.
So this unique legal status is based on tradition?
That’s eyewitness testimony. Are you suggesting that this would be given less weight if the victim doesn’t die but makes it to the witness stand to testify against the perp?
Necessity - if there’s no exception for dying declarations, then they’re not admissible in court.
No, that’s not testimony, but hearsay. It is an out-of-court, unsworn statement. By the traditional approach to hearsay, that statement would not be admissible in court at all. But there’s a general consensus that such a statement is important, since the declarant is not available to testify, and therefore it is admissible as an exception to the hearsay rule.
Also, weight is not the same thing as admissibility. The dying declaration exception makes the statement admissible in court, but it doesn’t mean that it’s conclusive. It’s always up to the trier of fact to assess what weight to give to the declaration, just like it’s up to the trier of fact to assess the weight of testimony given by a witness in open court.
Hearsay is a particularly fraught problem in the law. It is a blanket rule with strictly defined exceptions, and the reasons for the rule in a general sense are that hearsay is easy to fabricate, and easy to be misunderstood. And generally, the original source is available, so why not go to that source? If I say “My wife told me she saw Cecil Adams buying liquor for kids”, then there is a risk that I may have misunderstood my wife’s quirky sense of humour, or I might not have picked up any hesitation she had about her capacity to identify Cecil, etc. And why not call my wife direct? You can’t cross-examine the original source if you allow hearsay evidence. So far so good (and so obvious.)
But having a blanket rule excludes a whole bunch of stuff where reliability is less of an issue. Confessions to police are hearsay, but they can be highly reliable, because what a person says against their interest may reasonably be presumed to be true. So there is an exception for confessions, and a whole raft of other things like business records.
A problem emerges when a person who has direct knowledge of an event is dead (and so can’t be called, contrary to the suggestion above.) The law is gradually expanding the scope of evidence from dead people, but it is prima facie hearsay (not identification evidence in the example given above about Rachel) because the evidence in the courtroom is coming from a police officer who is saying what he heard the deceased say, not from the mouth of the deceased himself as a witness in court, where he can be cross-examined.
The common law developed the dying declaration rule as an exception to the hearsay rule because the law would be an ass if there was not such an exception. The rationale behind the pragmatism is as stated above - it is expected that someone about to meet his maker is strongly motivated to tell the truth. But there was not an open chequebook about htis sort of thing - the rule is quite restrictive. Thus, at common law, the exception was subject to these conditions:-
That the person who gave direct evidence of the matter was dead (duh).
That the trial related to the death of that person.
That the person, when making the dying declaration, had a “settled, hopeless expectation of death.”
This last attracts quite fascinating (albeit morbid) evidence from doctors about the changes both physical and psychological that accompany imminent death. But that is for another thread.
