Monday, September 24, 2012

Dying Declarations

Hearsay is not admissible evidence at a trial.  Unless, of course, it is admissible evidence.  I've discussed a little bit about hearsay before in terms of the right to confront witnesses against you.  I wanted to discuss dying declarations in light of my last post about the murder of Maria Rudolph.

In that Illinois case, a key piece of evidence was a deathbed confession of the murderer's mother.  She told her daughter that she knew her son killed Maria and that she had lied to the police to cover for him back in 1957.

It's a great jumping off point to re-open an investigation.  But how exactly can this statement come into evidence at trial?

The problem with hearsay is the inability of a jury to judge the credibility of the person who said the statement.  The person who said it is not called at trial and thus not exposed to cross-examination.  Anyone can make something up.  I can say that my brother told me he broke the window with a bb gun when we were kids.  But should he really get in trouble for this because of my hearsay testimony?  (Note:  I broke the window and confessed to my parents a few years ago).

So the rule is that hearsay is inadmissible, unless there is an exception.  A dying declaration is one exception.  A dying declaration is when a person identifies their killer under the belief they are dying.  The belief is that a person is more likely to tell the truth under the psychological pressure of imminent death and the fact they are about to meet their maker.  There are certain criteria that must be met for that type of statement to be admissible:

Under the Federal Rules of Evidence:
1) The declarant must be unavailable to testify (due to his/her actual death most likely),
2) the prosecution must be for a homicide or in a civil case,
3) the declarant (person injured) must believe their death is imminent when they make the statement, and
4) the statement must be about the cause of the death (who did it) or its circumstances.

In New York State:
1) The declarant must be unavailable to testify because he died due to the action,
2) the prosecution must be for a homicide case,
3) the declarant must believe their death is imminent when they make the statement, and
4) the statement must be about the cause of death or its circumstances.

The main difference between New York rules and the federal rules is that in New York, the victim must actually die before the statement is admissible.  Under the federal rules, the victim must be unavailable, but does not have to die as a result of the injury inflicted.

Are you seeing the problem with the Maria Rudolph case?  The defendant's mother made a dying declaration about her own lies and knowledge that her son committed a murder.  The statement was not about her own death (she did not die by homicide).  It is not a dying declaration under the law.  The question becomes how did this statement make it into evidence at a trial?  The first part, that her son did it seems to be speculation.  The second part that she lied to cover for him is definitely hearsay.

One of the most important jobs a lawyer has is to figure out how to get crucial evidence into the trial.  Good trial lawyers usually have two or three ways to get the evidence in.  But this one has escaped me. I don't see any way this testimony should have made its way into the trial.  It might be considered an admission, meaning where one of the parties in litigation makes a statement to their detriment.  But it doesn't seem like it because mom wasn't relating what she was told by her son, only her involvement.

Hearsay also acts like the childhood game telephone.  This is where a group of kids sit in a circle.  One child whispers a statement to another child and that statement is repeated to each successive child.  Once it gets back to the original child, the statement has always morphed into something else.  It's the same danger with hearsay upon hearsay.  There is a legitimate fear that the more links in the hearsay chain, the greater the chance to distort the original statement. 

Obviously, I only possess the media reports about the case so there is most likely details I am not privy to.  But if these details are the true facts, I don't see how mom's deathbed statement came into evidence.


  1. How interesting! See in cases like that I am all for admitting it (the dying declaration) but normally, I don't think people can be trusted to relate things accurately. I've seen how things can be ridiculously distorted. Thanks for this post though, I was always curious about the dying declaration!

  2. I sent you the judges ruling on the evidence allowed, and not allowed. Let me know if you did not get it. Thanks,

    1. Thank you Casey. It's great to receive information like this to really get into a case more than the cursory analysis from the media.

  3. The following link is to the MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR A NEW TRIAL. It is a really interestest read.