Saturday, April 12, 2008

Written opinion in Jensen on the "dying declaration" point

Judge Bruce Schroeder, the trial judge in the Jensen case, has filed a written memorandum in support of the decision he previously issued orally, deeming Julie Jensen’s letter to be a dying declaration. Because I referred to the oral decision in my brief in Giles – and in unflattering terms – the judge has quite appropriately sent copies of the memorandum to counsel of record in the Supreme Court in Giles and to the Court itself. (Despite my jab at his oral opinion, he has been very polite to me in our brief, non-substantive exchange.) You can read the memorandum by clicking here.

In the oral opinion, the judge contended that Julie’s letter spoke only as of the time that it was opened by another person, after her death. The judge repeats the argument in the written memorandum. I stand by my criticism of it. Ascertaining the time of a statement for purposes of the "dying declaration" excpetion to the hearsay rule is not a matter of determining when, say, a contract offer becomes effective. The law of evidence looks to the realities of the situation, and Julie made the statement as of the time she committed words to paper, just as if she were writing a diary.

But the judge's written memorandum appears to make, or at least suggest, an alternative argument, which put in what I think are the strongest terms conflicts with the first argument: Even though the letter spoke as of when it was first written, Julie could have withdrawn it before it was opened, so in some sense it continued to speak until she was no longer able to withdraw it. Under the supposed logic of the dying declaration exception, if the declarant continuously made a statement, the determinative time should probably be the latest time she did so; if the supposed guarantee of reliability applied then, the fact that it did not apply earlier presumably would not matter.

This is a subtler theory than the “letter from the grave” idea, but I still think it is a distortion of the “dying declaration” exception. For it to be even plausible, there would have to have been a moment when Julie knew she was about to die and yet was able to withdraw the letter. The judge does not show that there was such a moment. Was Julie ever aware that death was imminent? And if she was, could she plausibly have gotten in touch with the letter-holder to pull the letter back? Even if the answers to both these questions are affirmative, I don’t think the argument is persuasive even within the strange logic of the “dying declaration” exception. Assuming a dying victim would be precluded by fear of eternal damnation from using her dying breaths to make a lying accusation, it is not clear that the same factor would prompt her to remember a statement made weeks before that expressed a basis for suspicion, and to use her dying breaths to take the initiative to nullify it.

The distortion of the exception is suggested by the fact that the prosecutor declined to rely on the exception, and the judge was not prompted to do so until the grant of certiorari in Giles made him think that the forfeiture theory on which the state supreme court relied might be vulnerable – therefore possibly leading to a mistrial and precluding the sensible result of allowing admission of the document. Really, rather than stretching the exception out of shape, it would be much better to hold that Mark Jensen forfeited the confrontation right with respect to Julie by killing her. I believe the judge’s reasons for reluctance to adopt this approach are addressed in my amicus brief in Giles.

While I'm at it -- in my discussion of Jensen in the amicus brief, I committed a blooper by saying that in Jensen the Wisconsin Supreme Court cited the California Supreme Court's decision in Giles. Would be amazing if true, given that Giles came down after Jensen. I've corrected the mistake by notifying the Court and counsel. I don't think my substantive argument is changed in the slightest.

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