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Dying declaration exception not dead

Hon. N. Patrick Crooks

Hon. N. Patrick Crooks

The exception to the hearsay rule for dying declarations does not violate the Confrontation Clause.

At common law, the exception was well-established. But when the U.S. Supreme Court breathed new life into the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004), it left the status of dying declarations uncertain.

Nevertheless, on Tuesday the Wisconsin Supreme Court held that nothing in the Crawford opinion, or any modern changes in technology or religious views, requires the exclusion of such declarations.

Justice Patrick Crooks wrote for the court, “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.”

Bryon Somerville was shot five times in Milwaukee in 2007. Before he died, he identified the shooter as “big head Marvin,” and described him as dark-skinned and bald, with a big forehead.

Marvin Beauchamp was charged with the crime, and he argued that admission of these statements would violate the Confrontation Clause.

The circuit court, the Court of Appeals and the Wisconsin Supreme Court all disagreed.

In Crawford, the U.S. Supreme Court held that the admission of “testimonial” hearsay statements violates the Confrontation Clause, overruling decades of precedents allowing such statements if the trial court found the statements to have sufficient indicia of reliability.

But the court declined to say how its ruling would affect dying declarations, except to observe that, if the exception survives, it is sui generis.

The court also left the status of dying declarations uncertain in Giles v. California, 128 S.Ct. 2678 (2008), although it noted that at common law, they were admissible, even though they were not subject to cross-examination.

Lacking any indication from the U.S. Supreme Court that the longstanding exception is no longer valid, the Wisconsin Supreme Court held that the exception does not offend the Constitution.

Beauchamp acknowledged the deep historical roots of the exception, but argued that the rationales for the exception are no longer tenable.

The court acknowledged that the exception has sometimes been justified on the grounds that a dying person is presumed for religious reasons not to tell a lie on his deathbed, and that we now live in a more secular society.

But the court concluded that the real rationale for the exception is not religion, but “necessity, in order to prevent murder going unpunished.”

The court also acknowledged that advances in forensic science now provide new evidence of guilt that wasn’t historically available.

But the court noted that such evidence is not always available to tie the defendant directly to the crime, as in this case.

“Regardless of the religious justifications that have been articulated for dying declarations over the centuries, this hearsay exception is a crucial one, and it retains its vitality,” Crooks wrote. “We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder.”

Chief Justice Shirley Abrahamson wrote a concurring opinion, maintaining that it is unnecessary to address the status of dying declarations, because she concluded that Somerville’s statements were nontestimonial, and thus, outside the scope of the Confrontation Clause.

What the Court Held

Case: State v. Beauchamp, No. 2009AP806-CR

Issue: Does the hearsay exception for dying declarations violate the Confrontation Clause?

Holding: No. The exception is crucial to prevent injustice.

Attorneys: For Plaintiff: Maura F.J. Whelan, Madison; For Defendant: Craig S. Powell, Milwaukee.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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