August 2009, Page 18

Treads for the Dying Declaration Under Kumho Tire
By Justo Arenas and Carol Romey

Lente, lente, currite noctis equi
(slowly, slowly, run ye horses of the night).
Christopher Marlowe, Doctor Faustus, sc. 13, l. 70.


How fate loves a jest. Behold me ambushed,
taken in the rear. My battlefield a gutter;
my noble foe a lackey with a log of wood. …
I have missed everything. Even my death.
Edmond Rostand, Cyrano de Bergerac, Act V.

Introduction
The scene: Mid-autumn in a fast-food parking lot at 2:00 a.m., poorly lit, cool, drizzling.
The players: Yammo (the loan shark); Lenny (the liar); Huxley (the butler); and Jones (the state trooper).
Yammo — (kneeling on asphalt, Lenny’s head on his lap) — Lenny, who did this to you, buddy?
Trooper Jones — (notepad in hand) — Speak loud, Lenny!
Lenny — (bleeding from temporomandibular bullet wound) — Huxley, my butler, did it.
Yammo — (friendly, nonconfrontational) — Lenny, you don’t have a butler.
Lenny — (expiring) — … so … what … (expires).
Trooper Jones — (writing slowly and repeating) — Huxley ... my ... butler ... did ... it.

The sacrosanct nature of the dying declaration has been imbedded in the common law, in world literature, and in the American systems of justice for centuries,1 notwithstanding history’s lesson of instances where witnesses, even in the agonies of death, have, through malice, misapprehension, or weakness of mind, made declarations that were inconsistent with the actual facts.2 The typically blind faith with which the final statements of missing and deceased witnesses are allowed in court has rarely, if ever, been questioned within the framework of Federal Rule of Evidence 804(b)(2).3 This faith sanctioned by the Rules of Evidence is based on the candid belief that a person imminently facing eternity will likely tell the truth.4 This conclusion, however, lends itself to qualitative skepticism under the therapeutic lens of the mental health professional whose systematic method should assist a jury in understanding a fact in issue and thus reaching a sounder verdict. This is particularly so given the complexity of reconciling the Confrontation Clause with the easy evidentiary access allowed for dying declarations.5

Just as with the problematic deference given to experts in their fields under the professional judgment standard,6 deferential treatment directed to any unexamined judicial exception may have the unexpected effect of impeding, inhibiting, and obstructing the judicial gatekeeper’s review. The admission of dying declaration evidence is based upon myopic and no longer valid scientific and legal reasoning. This article does not propose the abdication of the jury’s role in weighing evidence and reaching truth. It does make note, however, that a trial judge’s blind admission of a dying declaration, because of the inordinate historical weight attached to its portent,7 may unwarrantedly tilt the scales of justice against a defendant. The postulates behind the admission of a dying declaration may supercede — with little scientific justification — a measured weighing of motive.

Assumptions
The trial judge makes a series of assumptions when determining whether to allow the admission of a dying declaration.8 Among those assumptions are that a statement was made; the declarant was conscious; the declarant was aware of his or her approaching, indeed impending, death;9 he or she believed there was no hope of recovery;10 he or she understood that death is final; the declarant was of sound mind when the statement was made;11 the statement was spontaneous and not the product of suggestion, coercion, or undue influence; and the statement was not the product of desire for revenge, self-exoneration, or protection of friends and family.12

The competency of the declarant is of paramount importance because if he or she is not competent, then the dying declaration is inadmissible as such.13 These assumptions give rise to a vacuum in the process of judicial review of the exceptions to the requirement that a declarant be available to testify in court and the reasons for such exceptions.14 This vacuum assumes validity without examination, thereby ignoring all notions of validity measures in the critical eye of the judicial examiner.15 Indeed, the conceptual vacuum assumes that motives to lie are silenced by one’s awareness of the imminence of death, and that such imminence creates the impetus for telling the truth, obviating “any motive on the part of the declarant to misstate the truth.”16 In summary, the dying declaration becomes a religious experience that a secular judge applies against the Confrontation Clause, producing a pro-prosecution tilt of the scales. The potential for abuse of legal standards is readily apparent given the dearth of scientific, systematic, and current reflection in social science journals.17

Hypothetical Application
Paramount in the application of Daubert expectations is the type and quality of information that would need to be known to assess the reliability of a dying declaration, as well as the factors that could affect the reliability of such a declaration. To illustrate, consider a proposed hypothetical application that addresses the dying declaration as if it were an area of mental competency to be assessed.

Even though it is argued that the dying declaration rule is more a religious and historical concept (experience) than a judicially assumed fact derived from scientific study, there is a possibility that the rule may have face validity. Face validity states that although the rule cannot be proven, most people believe it to be true and useful. The rule may be valid, although it is not certain why it is so.

If we assume that the dying declaration rule may have face validity and that dying declarations should comply with standard clinical assessment procedures, then the assessment of a dying declaration as evidence of mental competence should address specific clinical variables. There would be two prongs in the examination of competency to offer a dying declaration. One prong assesses the person who died, and the second prong assesses the person who heard the dying declaration.

Here are key clinical criteria in the post-mortem assessment of the psychological competence of a person who dies.
  • Evaluate the cognitive awareness and insight of the person about to die and awareness on his or her part that death was final.
  • Determine if the dying person, just prior to the moment of death, was able to intellectually function in a rational, organized, and goal-directed manner.
  • Consider whether the dying person was a moral and religion-oriented person whose pillars for decision-making were religious beliefs.
  • Assess prior religious beliefs of the person for evidence of the belief in an afterlife.
  • Inquire into prior beliefs for evidence that at the time of death the decedent expected to come face-to-face with her Creator and that she had the cognitive and emotional resources to handle adequately the high levels of situational stress generated by imminent death and this anticipated encounter.
  • Determine if the main response to this face-to-face encounter with the Creator inspired a moral transformation in those that may not have led exemplary lives (and not a reaction of fear, panic, cowardice, etc.).
  • Assess whether the decedent was inspired to unburden his soul of any information that he may have wanted to leave on earth and not take to the afterlife.
  • Determine if every motive to lie was silenced by awareness of the imminence of death.
  • Consider if, at the moment of facing death, the decedent’s mind was induced to verbal communication and that he was predisposed to speak the truth.

The listener must demonstrate cognitive, emotional, legal, and religious competency in all of the areas expected of the person dying such that both the person dying and the listener share in the appreciation of the importance and legal implications of the moment of death.

Moreover, the listener must be assessed for the ability to remember (memory functions) and relate verbatim (short term memory, verbal fluency skills) the content of the dying declaration. The listener should be assessed for the ability to identify people in positions of trust, control, or authority and to pass on the content of the dying declaration in a timely and appropriate fashion to the people in authority. Finally, the listener must be aware of the fact that there may be religious and legal consequences should the listener lie, distort, or conceal a dying declaration that has been heard.

The examination of the clinical criteria that need to be assessed in a Competency to Offer and/or Receive a Dying Declaration places the mental health professional in a position that interfaces religious belief systems, psychological assessment procedures and practices, and theories of human nature. It is argued that with the judicial application of the dying declaration rule to a case, the procedures to assess competency should be formulated and examined with the same rigor as those applied to all mental competency assessments.18 There is no clinical or scientific reason to create a standard for assessing competency to offer a dying declaration that is different from the standards applied to competency to stand trial, plead, be sentenced, or be executed.

Analysis
The invitation offered by Rule 702 and Kumho Tire19 to the field of social scientific knowledge lends support to the analytical framework of law and science,20 also inviting a revisionist focus on the dying declaration icon. Post-Kumho Rule 702 of the Federal Rules of Evidence reads as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.21

By its very nature, specialized knowledge clearly falls within the parameters of the analytical framework of Rule 702.22 The clerical realm of the dying declaration invites a comprehensive and inquisitive approach that goes beyond the familiar marketplace consideration of the results of life-threatening acts. The dying declaration rule proffers this invitation precisely because of the affront to the Confrontation Clause and the oft-times exclusivity of the dying declaration as the premier piece of evidence to prove the homicide.23

Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called “general truths derived from … specialized experience.” Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 54 (1901). And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert’s testimony often will rest “upon an experience confessedly foreign in kind to [the jury’s] own.” Ibid. The trial judge’s effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge.24

How is it that the trial judge assures that the specialized testimony is reliable and relevant? Even if the trial judge applies only some of the Daubert25 factors to the construct of the dying declaration, this construct hardly passes muster.

Testing the theory or technique. The dying declaration construct has not been subject to testing. Hypotheses have not been generated based on the dying declaration construct. Tests have not been developed to measure validity.

Peer review and publication. The construct of dying declarant has not been subject to peer review in the legal or psychological literature. There are no consensually affirmed reference sources to analyze the appropriateness of the dying declaration construct in court cases. The reliance on dying declaration data is not common practice in mental health assessment literature.

Potential rate of error. The construct does not have a known or potential rate of error. It is argued that the sample of persons giving a dying declaration is the exception and not a homogeneous grouping, therefore there cannot be a normative group from which statistical analysis and comparison can be made.

Level of acceptance within the relevant discipline. The rule concededly is generally accepted in the legal community, this notwithstanding the weaknesses of the underlying theoretical foundation for its application. However, the field of social sciences does not address the issue of dying declarations in its theoretical or research projects.

Conclusion
There may be no statement more dramatic than one given by a post-mortem victim.26 His legacy easily lives on in the hearts and minds of jurors.27 There are at least two comparable areas that receive deference similar to the deference given the dying declaration — hypnosis and the taking of an oath.28 While a jury may be called upon to base its verdict primarily on the word of a dead person, would a mental health professional, using his or her best professional judgment, base a clinical opinion as to the mental competency or mental status of a person using the dying declaration as the only source of clinical data? Again, the invocation, or incantation, of Fed. Evid. R. 804(b)(2) invites a skeptic’s inquisition engraved with constitutional concerns.

The rule allowing statements tottering on the edge of oblivion to be used against a criminal defendant must be looked at askance, or at least critically, in application as well as in theory. The social scientist and mental health expert are in a preferential position to assist the trier of fact in determining a morbid fact in issue and to recognize such a fact as contested. A conclusion to the contrary relegates a criminal defendant to be brutalized by an unfiltered death rattle, inordinately lightens the burden of the prosecution, and leaves a jury at the mercy of rote words. Et tu, Brute!29

The authors acknowledge the invaluable research assistance of attorney Héctor Ramos.


Notes
1. See Carver v. United States, 164 U.S. 694, 697 (1897); Mattox v. United States, 146 U.S. 140, 151-53 (1892).
2. See Bryan Liang, Shortcuts to ‘Truth’: The Legal Mythology of Dying Declarations, 35 Am. Crim. L. Rev. 229, 237-38 (1998).
3. Rule 804(b)(2) provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
…
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Fed. R. Evid. 804(b)(2); cf. United States v. Rivera-Figueroa, 149 F.3d 1, 5-6 (1st Cir. 1998) (refusing to find under plain error review that the exclusion of a dying declaration would have led to defendant’s acquittal).
4. See Mattox v. United States, 146 U.S. at 152 (“The admission of the testimony is justified upon the ground of necessity, and in view of the consideration that the certain expectation of almost immediate death will remove all temptation to falsehood and enforce as strict adherence to the truth as the obligation of an oath could impose.”); see also John H. Wigmore, Evidence in Trials at Common Law §1443, at 302 (Chadbourn Rev. 1974).
5. See, e.g., Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004); Lilly v. Virginia, 527 U.S. 116, 123-24 (1999); Bourjaily v. United States, 483 U.S. 171, 182-84 (1987); Ohio v. Roberts, 448 U.S. 56, 66 n.9 (1980); Commonwealth v. Nesbitt, 452 Mass. 236, 249-50, 892 N.E.2d 299, 310-11 (2008); People v. Monterroso, 34 Cal. 4th 743, 763-65, 101 P.3d 956, 971-73 (2004).
6. See Justo Arenas & Carol M. Romey, Professional Judgment Standard and Losing Games for Psychology, Experts and the Courts, 68 Rev. Jur. U.P.R. 159 (1999).
7. It may be that there is no third person present to be an eyewitness to the fact. Dying Declarations, 3 Geo. L. J. 8, 11 (1914-15) (citing Serjeant East (I Pleas of the Crown, 353)).
8. See David P. Leonard, Perspectives on Proposed Federal Rules of Evidence 413-415: The Federal Rules of Evidence and the Political Process, 22 Fordham Urb. L.J. 305, 313-15 (1995) (One significant assumption adopted from common law principles is that a dying declaration is “likely sincere because a person who believes she is dying would not lie.”).
9. Cf. United States v. Shields, 497 F.3d 789, 793 (8th Cir. 2007).
10. See, e.g., People v. Ingram, 382 Ill. App. 3d 997, 888 N.E.2d 520, 526 (2008).
11. Sound mind invites the validity of the dying declaration assuming that there was no serious blow to the intellectual function. See Dying Declarations, supra note 7, at 12. The assumption is clearly one of competency.
12. See Martin D. Litt, Dying Declarations, 27 Colo. Law 49 (1998); United States v. Rivera-Figueroa 149 F.3d at 4-5; United States v. Angleton, 269 F. Supp. 2d 878, 882-83 (S.D. Tex. 2003).
13. The assumption of competency infers that one is able to intellectually function at the moment of impending death in a rational, organized, and goal-directed manner.
14. The assumption presupposes a religious belief in the hereafter, that one is a moral and religiously oriented person whose key pillars for decision-making are religious beliefs, that at the moment of death one comes face to face with the Creator, and that such encounter will inspire moral transformation in those who have been less than saintly in life. See Queen v. Osman, 15 Cox Crim. Cas. 1, 3 (Eng. N. Wales Cir. 1881) (Lush, L.J.), cited in Idaho v. Wright, 497 U.S. 805, 820 (1990) (“No person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips.”). (Nemo moriturus praesumitur mentire.) The assumption presumes the fear of God and that if one should lie at the moment of death, one will be destined to a particular section of hell with its unrequited torment (Dante’s Inferno, Canto XXX), and that one is inspired to unburden the soul of any information that should be left on earth and not taken to the hereafter.
15. Cf. Wallace v. State, 836 N.E.2d 985, 991 (Ind. 2005),
16. Vázquez v. Nat’l Car Rental Sys. Inc., 24 F. Supp. 2d 197, 200 (D.P.R. 1998) (citing United States v. Thevis, 84 F.R.D. 57, 63 (N.D. Ga. 1979), aff’d 665 F.2d 616 (5th Cir. 1982)).
17. See Ralph Slovenko, Deathbed Declarations, J. Psychiatry L. 469-484 (1996).
18. This is contrary to the current practice of not questioning the dying declaration as to its reliability because it is a “firmly rooted” hearsay exception. Head v. State, 171 Md. App. 642, 663-64, 912 A.2d 1, 13-14 (2006) (citing Bourjaily v. United States, 483 U.S. at 183).
19. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
20. See generally Henry Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony, 2 Fed. Court L. Rev. 1, 23 (2007).
21. Fed. R. Evid. 702(b).
22. Kumho Tire, 526 U.S. at 141.
23. See Liang, supra note 2, at 256 n.98 (discussing the necessity of admitting dying declarations where the declaration is often the only evidence available).
24. Kumho Tire, 526 U.S. at 148-49.
25. Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 593-94 (1993) (Some of the Daubert factors include: (1) whether the theory or technique can be and/or has been tested; (2) whether the technique has been subject to peer review and publication; (3) the potential rate of error; and (4) the level of acceptance within the relevant discipline).
26. See Liang, supra note 2, at 244 n.22 (discussing the dramatic nature of dying declarations).
27. See Kidd v. State, 258 So. 2d 423, 430 (Miss. 1972) (Smith, J.).
28. See State v. Lewis, 235 S.W.3d 136, 148-49 (Tenn. 2007).
29. Shakespeare, Julius Caesar, Act III, sc. 1. n
© Justo Arenas and Carol M. Romey, 2009. All rights reserved.


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