The accused is charged with stabbing a fellow inmate, Stone, to death. Afraid that he was dying, and in fact on the verge of death, Stone made several statements accusing Jordan of the crime. There does not seem to have been much dispute, and the court dquarely concluded, that the statements fell within the dying declaration exception to the hearsay rule, Fed. Rule of Evidence 804(b)(2). That did not ensure admissibility, though, for the court held that Stone’s statements to an investigating Bureau of Prisons agent were “patently testimonial.” This seems clearly correct; indeed, I believe that his statement to the same effect to a paramedic ought also to have been considered testimonial, but that issue does not have any impact on the outcome of the case.
The court then considered the status of dying declarations under Crawford. It quite accurately said, “Whether driven by reliability or necessity or both, admission of a testimonial dying declaration after Crawford goes against the sweeping prohibitions set forth in that case.” But it also noted that Crawford nevertheless preserved the possibility of maintaining as an historically based anomaly an exception to the confrontation right for such declarations. And yet the court rejected this argument, asserting that “the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights.” Not only is this statement strikingly inaccurate – see, e.g., R. v. Woodcock, 1 Leach 500, 168 E.R. 352 (K.B. 1789) – but it also seems quite squarely in conflict with the court’s statement made just a few paragraphs before: “The dying declaration became an exception to the rule against hearsay in the early 18th Century.” And the court followed its inaccurate assertion with a series of non sequiturs:
At the time of enactment of the Sixth Amendment, "sworn statements of witnesses before coroners" were admissible despite not being subject to cross-examination. [124 S.Ct.] at 1376. Crawford requires both necessity (unavailability) and an opportunity for cross-examination (Sixth Amendment confrontation to test reliability). Based on my reading of Crawford, in the case of a dying declaration, the presence of only one will not suffice. Inability to test Stone's statements through the constitutionally rooted crucible of cross-examination is fatal to application of the dying declaration exception to the hearsay rule in this case.I agree with the Jordan court that the dying declaration exception makes little sense and that it does not square well at all with the theory of Crawford. (See the post on Forfeiture and dying declarations.) But it is plain that the doctrine did exist at the time of the Sixth Amendment, that Crawford acknowledges this, and that Crawford at least holds open the possibility that, notwithstanding the absence of an opportunity for cross-examination, statements fitting within the exception ought to be admissible on historical grounds. I do not believe that this invitation should be taken up, largely because forfeiture dotrine achieves much the same results in a far more persuasive manner.
But the Jordan court also declined to apply forfeiture doctrine. It relied on Fed. R. Evid. 804(b)(6), which applies only if the wrongdoing on which the forfeiture contention is based "was intended to, and did, procure the unavailability of the declarant as a witness." But in the context of the case, it was wrong for the court to give anything more than persuasive weight to the Federal Rule. The statements were, as noted above, dying declarations within the meaning of Fed. R. Evid. 804(b)(2). Even assuming that – as the court held, and as I think proper – this does not relieve the confrontation problem, it certainly does resolve the hearsay problem. There is therefore no need to find a further way around the Federal Rules' presumptive ban on hearsay. The court, in short, should not have looked to the Federal Rules' expression of forfeiture doctrine. Whether the confrontation right is forfeited is a matter of federal constitutional law, and there is no reason why the constitutional standard of forfeiture must conform to the Federal Rules' expression of the doctrine. Therefore, even if it is true that, as the court said, there are no cases holding "that a murder whose by-product is the unavailability of a witness to that killing is covered by the rule [i.e., Rule 804(b)(6)]," this does not answer the constitutional question. As I have indicated in the post on Forfeiture and dying declarations, there are already several post-Crawford cases holding that a murder defendant may forfeit the confrontation right by committing he very killing with which he is now charged. And for reasons expressed in that same post, I believe these decisions are correct: The constitutional right should be forfeited if the accused's wrongdoing rendered the witness unable to testify subjeect to confrontation, whether or not that wrongdoing was motivated by the desire to achieve that result.
Ultimately, the strangest aspect of the Jordan case is the outcome. For hundreds of years, dying declarations have been admitted against homicide defendants. The courts have not usually articulated sound reasons for this result, but it is one that has strong intuitive appeal, as implicitly recognized by Crawford. Had the Jordan court held that in the circumstances of this case the statement could not be admitted because the prosecution had failed to mitigate the problem created by Jordan's wrongdoing, the decision would have had relatively narrow implications and would have been on firm theoretical grounds, see the post on Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth, however dubious might be the factual conclusion that mitigation was a reasonable possibility. But instead, the court's decision appears to preclude any use of a dying declaration identifying a killer and made to an investigator (and in my view the logic should carry beyond that, whether the audience was a public official or not), unless the prosecution can show that the assailant was motivated by the desire to prevent the victim from testifying. That is not a result most courts will find at all attractive. If the Government decides to appeal, my guess is that this decision will be dead on arrival at the 10th Circuit.