2009AP806-CR State v. Beauchamp

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Criminal Procedure
Confrontation Clause; dying declarations

Admission of dying declarations does not violate the right to confrontation.

“As the court of appeals noted, ‘the Sixth Amendment’s guarantee of the confrontation right does not apply “where an exception to the confrontation right was recognized at the time of the founding.”’ Beauchamp concedes that the dying declaration exception was an established hearsay exception at common law. The Crawford Court acknowledged the dying declaration hearsay exception and indicated that the exception might be an exception that survives a Confrontation Clause challenge. Without a direct answer from Crawford on this point, we are given the task of resolving this question by applying the principles set forth in Crawford and a related case, Giles v. California, which bases its holding on an analysis of what specific hearsay exceptions were permitted at common law at the time of the ratification of the Sixth Amendment and were therefore incorporated into its confrontation right. Those principles compel the conclusion that allowing this hearsay exception comports with the protections of the Confrontation Clause. While the United States Supreme Court has yet to give its explicit blessing to the dying declaration exception, it has given us no reason to abandon a principle that is so deeply rooted in the common law. Nor does Beauchamp. The fairest way to resolve the tension between the State’s interest in presenting a dying declaration and a defendant’s concerns about its potential unreliability is not to prohibit such evidence, but to continue to freely permit, as the law does, the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case. In other words, if there is evidence the declarant had a motive to accuse falsely, introduce it. If there is evidence that the declarant was cognitively impaired and incapable of perceiving events accurately, introduce it. Such facts may, in particular cases, justifiably undermine the reliability of a dying declaration. The reliability of evidence is an issue for the trier of fact, and the assertion that some dying declarations may be unreliable can not justify the per se exclusion of such potentially valuable evidence.”

Affirmed.

2009AP806-CR State v. Beauchamp

Crooks, J.

Attorneys: For Appellant: Kohler, Martin E., Milwaukee; Powell, Craig S., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

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