Posted by wlansden |
Filed under court decisions; commentary
By James Bowden
In a decision sure to result in a $130 outlay by law students everywhere to cover a new edition of Evidence text books, today the Supreme Court upheld the “dying declaration” exception to the prohibition on hearsay included in the Federal Rules of Evidence (F.R.E. §804(b)(2)). The majority opinion was authored by Sotomayor, who, despite being considered a member of the court’s liberal wing, has a history of deference to law enforcement in procedural decisions going well back into her time as a judge in the U.S. District for the Southern District of New York as well as on the 2nd Circuit.
The court held that the dying words of a shooting victim collected by police at the scene of the crime were nontestimonial, and their introduction into evidence at the defendant’s trial did not violate the Confrontation Clause of the U.S. Constitution included in the 6th Amendment. This is a decision well within the Crawford line of 6th Amendment jurisprudence, which allows introduction of dying declarations in criminal cases where the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, as opposed to being taken to establish or prove past events potentially relevant to later criminal prosecution. Score one for law and order.
What is really interesting to me about this decision is the dissents offered by Justices Scalia and Ginsburg. Scalia was a little bit more robust with his critique, as he is wont to be. After judging the recitation of the facts erroneous and self-serving, Scalia argues that the penultimate question in analyzing whether dying declarations are testimonial is the intent of the speaker. His dissent is worth a read – it comes off as a high-brow Dennis Leary routine. Some of the choice words: “relatively benign judicial mischief", “vain attempt to make the incredible plausible,” “distorts our Confrontation Clause jurisprudence and leaves it in a shambles,” and “the Court makes itself the obfuscator of last resort;” and that’s just the introduction. At one point the discussion imagines “dastardly” police interrogators. Note throughout that Scalia cites his own dissents. It’s good to be a Supreme Court Justice. Ginsburg is a little bit more diplomatic, and entirely more succinct (two short paragraphs). After recognizing the victim statements as testimonial, Ginsburg offers to take up the dying declaration analysis – and then punts on the ground that the issue was not properly raised on appeal. I say win, Ginsburg.
A little editorial statement here – my understanding of the underpinning logic of the dying declaration exception is that there was a time when people did not believe that anyone would go to meet their maker with a lie on their lips. My question: does anyone still believe this? Once a liar, always a liar. Or, alternatively, as John Crosby, Lt. Governor of Newfoundland says, "If you head out of town as an [expletive deleted], it's unlikely you'll return as a horse."
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