When is a Dying Declaration not Hearsay?
Marvin Brown was charged with murder, armed robbery, and possession of a weapon in Charleston, S.C. His arrest and prosecution were primarily based on the victim’s identification of him in a photo line-up at the hospital after the shooting.
The victim later died, and, at trial, the State wanted the detective to tell the jurors about the photo line-up. The trial court held that it was hearsay, it was not admissible, and the Court of Appeals agreed.
When is Hearsay Not Hearsay?
Hearsay is when a witness testifies to what someone else said. The statements must also be admitted “for the truth of the matter asserted” to qualify as hearsay. For example, if I say, “Momma said we were going to drive to the store,” and what I intend to prove with that statement is that mom and I were at the store on that day, that is hearsay. On the other hand, if I intend to prove that mom’s vocal chords were not damaged on that day, it may not be hearsay because it is not being admitted “for the truth of the matter asserted.”
Once you get past the question of whether a statement is hearsay, there are a whole lot of exceptions to the hearsay rule. One of those is a “dying declaration.” The requirements for allowing a witness to testify to a dying declaration are: 1) Death was imminent; 2) The person knew that death was imminent and felt that there was no hope of life; and 3) The circumstances of the person’s impending death are the subject of the dying declaration.
It makes sense. A killer’s act of murder should not be permitted to prevent the victim’s identification of the killer. On the other hand, it’s a hearsay exception that can easily be “gamed” if the court does not ensure that the exception’s strict requirements are met.
Why was the Dying Declaration Not Admissible in This Case?
The trial court and the Court of Appeals held that it was not a dying declaration because the victim’s medical condition was improving at the time of the statement and the victim was not aware of his imminent death. Their decision was mostly based on the medical records which showed that he had undergone surgery, he had been extubated (the breathing tube was removed), he began physical therapy, and doctors did not expect him to die. The records indicated that a pulmonary embolism was the cause of death which was sudden and unexpected.
Wait… the State Appealed in a Criminal Case?
Ordinarily, the State does not get to file an appeal in a criminal case. Because a retrial would violate double jeopardy, an acquittal cannot be overturned by the appeals courts. When there is a conviction, the state has no reason to appeal.
Although the Court’s opinion does not address this, we can assume that the dying declaration was the state’s only evidence and that they did not feel they could get a conviction without it. The state could file an appeal because the trial court’s decision to suppress the line-up identification effectively prevented the state from proceeding to trial.
This underscores the importance of carefully researching every issue that arises in a criminal case. If Brown’s attorneys had not obtained and carefully reviewed the victim’s medical records, they would not have been able to effectively argue that the line-up was not a dying declaration, Brown’s trial would have gone forward, and he may have been convicted in a case that lacked any real evidence apart from the deceased victim’s statement.
Need to Know if Hearsay Will be Admitted Against You in Your Case?
Excluding unreliable statements made by people who do not testify from the witness stand is an important part of preparing your case for trial. You can schedule a free consultation to discuss the facts of your case by calling (843) 488-5000 or filling out our online form.
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