Forfeiture and dying declarations

Crawford noted accurately, n.6 and accompanying text, that there is "scant evidence" that at the time of the Sixth Amendment hearsay exceptions were invoked to admit testimonial hearsay against a criminal defendant, and that the "one deviation" involved the exception for "dying declarations," the existence of which at that time "cannot be disputed." The Court then said:

We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.

On Monday, December 13, the California Supreme Court took up this invitation and held, in People v. Monterroso, that the statement of a homicide victim describing his killer was a dying dclaration under California law and that as such it did not violate the confrontation right:

[I]f, as Crawford teaches, the confrontation clause “is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding” (Crawford, supra, 124 S.Ct. at p. 1365, citing Houser [a 19th century case], supra, 26 Mo. at pp. 433-435), it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment. We therefore conclude the admission of Patel’s dying declaration was not error.

The result, I believe, is appropriate. The stated rationale is unfortunate. Monterroso is, so far as I am aware, the first post-Crawford decision to hold that the dying dclaration exception takes a statement out of the confrontaiton right. Cf. State v. Nix, 2004 WL 2315035 (Ohio App. 1 Dist.) Oct. 15, 2004) (holding that admission of dying declarations made to police and others was not plain error, because it is "extremely doubtful" that the statements were testimonial [! a terrible conclusion] and because Crawford "allowed for the possibility" that testimonial dying dclarations are acceptable under the Confrontation Clause). Other courts have taken a preferable route, reaching the same result by applying the doctrine of forfeiture. See State v. Meeks, 88 P.3d 789 (Kan. 2004); People v. Moore, 2004 WL 1690247 (Col. App. July 29, 2004); People v. Giles, 19 Cal. Rptr.3d 843 (2d Dist. 2004); People v. Jiles, 18 Cal. Rptr.3d 790 (4th Dist. Sept. 16, 2004). Moreover, as I hope will become apparent below, I believe Monterroso is in fact largely guided by the forfeiture idea.

First, consider the dying declaration exception. It is so weird it is an embarrassment to evidentiary law -- and so a signal of the need for a new conceptual approach. The exception removes the hearsay bar from a statement made by a declarant explaining the cause or circumstances of what the declarant believes to be his or her impending death. Traditionally, it was applicable only in homicide cases; in the Federal Rules of Evidence version, FRE 804(b)(2), it is also applicable in a civil case. (The declarant must actually be unavailable at trial; in a homicide case this is true by definition; in a civil case, one could imagine a miraculously recovering declarant who becomes unavailable for some other reason.) So why is there an exception for such statements? The traditional rationale was endorsed not all that long ago (but in the bad old pre-Crawford days) in the majority opinion by Justice O'Connor (one of the two Justices who did not sign on to the Crawford transformation) in Idaho v. Wright, 497 U.S. 805 (1990). She said that in some cases "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility," and this is one of them: persons making dying declarations "are highly unlikely to lie." And why is that? Quoting a 19th century British trial court opinion, she pronounced that "no person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips."

Wow. Imagine the position of a defense attorney who was given a chance to travel to heaven to depose the victim who had identified the attorney's client as the murderer. Which of the following would more likely be the attorney's reaction?

(1) "Great! Now I can treat the victim as I would the victim of any assault case. I can explore whether she had a grudge against my client amd whether she was really in a position to observe who it was who struck her. And I can try to determnie whether, at the time she spoke, in extremis, her mind was clear and she was able to communicate accurately."

(2) "No need to bother. Couldn't do a thing with her. She was about to meet her Maker, so she would be highly unlikely to lie, and cross-examination would be only of marginal utility."

I think the answer is self-evident. If any readers really feel that the inability in the real world of defense attorneys to cross-examine the maker of a dying declaration is of little consequence because cross would be of marginal utility, please let me know.

Even on its own terms, the dying declaration exception makes no sense: If the fact that a declarant believes she is about to die makes her statement so good, why does the exception not apply to all such statements? Why is it limited to the cause or circumstances of the apparently impending death, and why is the type of case in which it can be used so limited? And what does this have to do with the confrontation right, anyway? Crawford makes clear that the right cannot be defeated by a judicial determination that a particular statement or type of statement is reliable. So even if belief of impending death makes a statement reliable (I wonder whether I'll treat it instead as an opportunity to speak loosely without fear of negative earthly repercussions), why does this take the statement out of the confrontation right?

Now consider forfeiture doctrine. I explored the nature of this doctrine at some length in Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997), cited by Meeks. (Some readers may be interested in a letter addressing various issues related to forfeiture that I wrote on November 30 to the chair of the Maryland Standing Committee on Rules of Practice and Procedure.) The basic idea is a very old one, and it has been established, for purposes of the Federal Rules of Evidence, in Rule 804(b)(6): The accused has no valid complaint based on the confrontation right or hearsay law about the use against him of a witness's statement if it was the accused's wrongful conduct that prevented the witness from testifying face to face with the accused. The wrongful conduct can take many forms -- such as kidnapping and intimidaiton -- but here we are concerned about homicide. Thus, if a witness is on her way to testify against the accused in a robbery case and the accused kills her, then the accused forfeits the confrontation right and the hearsay objection, and a prior statement made by the witness may be used against him, even though it was testimonial in nature and the accused never had an opportunity to cross-examine her.

There is no reason why forfeiture doctrine is rendered inapplicable just because the witness whom the accused renders unavailable is the victim of the crime with which the accused is charged. I believe it is further true that forfeiture applies even if the wrongful act by which the accused rendered the witness unavailable is the act for which the accused is being tried. Thus, if the accused is charged with murder, and the prosecution wants to introduce a statement made by the victim before she died, I believe it is open to the prosecution to secure admission of the statement by proving that the reason the victim is unable to testify in court is that the accused rendered her unavailable by killing her.

Two objections are often made to this application of forfeiture theory, and on close analysis I don't believe either is strong. The first and most obvious one is the bootstrapping objection: The accused is held to have foreited the confrontation right by a conclusion that he committed the very crime that is the subject of the actin and that, by hypothesis, he denies having committed. But the situation is no different from one dealt with routinely in other contexts, most notably when the prosecution in a conspiracy case offers a statement under the theory that the accused and the declarant were conspirators. The same issue comes into the case twice for two separate reasons -- once on the merits, once in determination of an evidentiary question -- but so what? It is presumably different fact-finders who determine the issue for the two different purposes -- the jury on the merits, the judge on the threshold issue -- and there is no need for the judge to tell the jury of her determination. The standard of persuasion is different for the two decisions; the jury must determine guilt beyond a reasonable doubt, but forfeiture may be determined by a lesser standard. (Some courts apply a preponderance standard, though I think that it probably should be higher.) And the evidentiary bases for the two decisions are different; the jury hears only admissible evidence, but the judge, under FRE 104(a) and similar rules, can consider anything that is not privileged. (Indeed, for this reason I believe that, in a counterpart to Bourjaily v. United States, 483 U.S. 171 (1987), the judge ought to be able to consider the challenged statement itself in determining the forfeiture issue.)

The second objection is that the homicide presumably wasn't motivated principally, or perhaps at all, by a desire to render the victim unavailable as a witness. But again, I ask so what? The witness is unavailable for cross-examination, and the reason is that the accused has killed her wrongfully; it is fundamentally unacceptable to allow him to complain about a situation created by his wrongful conduct, and that her unavailability as a witness is not what motivated him should not matter. (Thus, I believe that FRE 804(b)(6), depends on the wrongful conduct having been intended to procure the witness's unavailability, does not go as far as it might. But forfeiture doctrine for constitutional purposes is not, of course, limited by the expression of that doctrine in the Federal Rules.) Giles, supra, an excellent and thoughtful opinion, has a good discussion leading to the same conclusion. My one quibble is that the principle is not "that no person should benefit from his own wrongful acts" -- sometimes forfeiture is not necessary to prevent such benefit, and sometimes it is not sufficient -- but rather that no person should be able to complain about the consequences of his own wrongful acts.

The dying declaration exception has not usually been explained in terms of forfeiture -- though it was so explained at least as long ago as 1847, see McDaniel v. State, 16 Miss. 401(Miss. Err. & App. 1847) ("It would be a perversion of [the Confrontation Clause's] meaning to exclude the proof, when the prisoner himself has been the guilty instrument of preventing the production of the witness, by causing his death."). State v. Houser, 26 Mo. 431, cited by Crawford and relied on by Monterroso, also seems to advert to the forfeiture idea in explaining the admissibility of dying declarations; as quoted by Monterroso, the opinion says that to exclude dying declarations because of the assertion of the confrontation right would be "abhorrent" to a "sense of justice." It is notable, in any event, that some features of the dying declaration exception that otherwise seem peculiar become much more understandable when examined through the lens of forfeiture doctrine. As suggested above, the exception is not really one for dying dclarations, though the traditional rationale, if accepted, would support such an exception. Rather, it is an exception for statements by a homicide victim on the apparent verge of death giving information about the fatal attack. Why the limitation as to declarant and subject? Because (if the defendant is in fact guilty) those limitations ensure that the accused's wrongful conduct has rendered the witness unavailable to testify at trial. Why the imminence requirement? If death really was imminent, then it probably would have been impossible to preserve the confrontation right outside of trial by taking a deposition.

Interestingly, in Monterroso itself, forfeiture doctrine would have offered a more straightforward way of admitting the evidence than did the dying dclaration exception. An officer on the scene testified "that at the time the statements were made, Patel knew he had been shot, was in great pain and on the ground in a fetal position, was fearful of dying, and never spoke again." But missing from this is any indication that Patel knew death was imminent -- and in fact it was not, for he lingered for another 11 days. It is therefore something of a stretch to apply the dying declaration exception. But if the court concludes as a preliminary matter that Monterroso shot Patel, then forfeiture presumptively follows as a matter of course. I say presumptively because there should be the issue of whether the prosecution could reasonably have arranged a deposition. Cf. R. v. Forbes, Holt 599, 171 E.R. 354 (1814) (deposition given by a dying victim; only the portion after the accused appeared held admissible). That is a judgment call, of course. Sometimes a deposition would be impractical, and given Patel's condition it may have been here (though one wonders how the officer could have testified from personal knowledge that Patel never spoke again). The dying declaration exception gives the police incentive to take statements from dying victims, but not to give suspects an opportunity to cross-examine, even when that would be feasible and morally acceptable. Properly applied, forfeiture doctrine would give police the incentive to do both.