The dying, blinking witness

Chris Miller, an excellent former student of mine, has pointed out Woods v. Cook, a recent Sixth Circuit opinion of interest by Judge Sutton, who is sensitive to Confrontation Clause issues.  This was an “eye blink” case:  A shooting victim, Chandler, was grievously wounded, and was able to communicate only by blinking his eyes.  Five days after the shooting, in a police interview, Chandler identified Woods as the assailant; two days later, he suffered the first of a series of strokes, and he died ten days after the interview.  His eye-blink statement was admitted against him at a murder trial in Ohio court, he was convicted, and the Ohio courts affirmed the judgment.  He brought a federal habeas petition, which the district court denied, and now a Sixth Circuit panel has unanimously affirmed that judgment.

In the circumstances, it is not surprising that the Ohio courts deemed the identification to be within the dying-declaration exception to the hearsay rule.  Chandler did not die all that soon after the statement, but he was in bad shape, and as the exception is usually articulated (including in Fed. R. Evid. 804(b)(2), all it requires with respect to imminence is that the declarant believed death to be imminent.  So maybe Chandler believed his death to be imminent.

And what about the Confrontation Clause?  The federal courts were treating this case under the constrained standards of habeas, but that doesn’t seem to have made much difference to the federal judges.  Crawford and Giles v. California both indicated that there is a dying declaration exception to the confrontation right, which I think is unfortunate – I’ve written enough about this before, that these cases ought instead to be considered applications of forfeiture doctrine, but the cramped view of forfeiture adopted by Giles made that impossible.

But let’s put that issue aside.  My difficulty with the outcome in this case – and it was not one that could be appropriately considered in a federal habeas case -- is that there was ample opportunity to take Chandler’s deposition.  Does that sound grotesque?  Clearly, the police had no compunction against taking a statement from Chandler that was intended for prosecutorial purposes; the session was videotaped (so indicates the decision of the Ohio Court of Appeals) and the police showed him a photo of Woods.  So how about bringing in the defendant and counsel?  It could have been done.  And in the old days, the courts would have insisted on it.  Consider R. v. Forbes, 171 Eng. Rep. 354 (1814):  A dying victim was giving a statement, and the accused was brought before him partway through.  The court held that only the portion from that point on could be admitted.  To similar effect, consider R. v. Smith, 171 Eng. Rep. 357 (1817).  There, the dying victim (though he was not yet under apprehension of death) made a statement to two justices of the peace.  When it was almost over, the defendant was brought in, and the statement was read over to the victim, who assented to it.  The defendant ought to be present, said the court, but given that he was present when the victim assented to what he had previously said, and had an opportunity for cross-examination, that was good enough. 

In some cases, there is no time to arrange for a deposition.  But where there is, and the authorities are willing to take a testimonial statement from the victim, the right of confrontation, including cross-examination ought to be preserved.