May 16, 2011 – The Wisconsin Supreme Court recently struck down a criminal defendant’s argument that dying declarations are no longer reliable and should not be admissible as an exception to the hearsay rule.
A jury convicted Marvin Beauchamp of first-degree intentional homicide while using a dangerous weapon. Beauchamp appealed, arguing the circuit court improperly admitted statements made by the victim, Bryon Somerville, to medical and law enforcement before he died of gunshot wounds. Somerville gave officers Beauchamp’s first name and provided a physical description.
Beauchamp argued that he did not have an opportunity to cross-examine Somerville, and this deprived him of a constitutional right to confront witnesses under the Sixth Amendment and under the U.S. Supreme Court case of Crawford v. Washington, 541 U.S. 36 (2004).
But in State v. Beauchamp, 2011 WI 27 (May 3, 2011) – in an opinion written by Justice N. Patrick Crooks – the Wisconsin Supreme Court ruled that the dying declaration exception to the hearsay rule is still viable despite Crawford.
Although the Crawford court announced that the confrontation of witnesses is the “only indicium of reliability sufficient to satisfy constitutional demands,” Wisconsin’s high court explained that Crawford does not compel exclusion of dying declarations.
Confrontation Clause and Crawford
The Sixth Amendment to the U.S. Constitution gives the accused in all criminal prosecutions the right to be confronted by the witnesses against him or her.
In Crawford, the U.S. Supreme Court held that for testimonial hearsay statements – statements elicited from a witness for the purposes of future prosecution – to be admissible absent confrontation, the witness must be unavailable and the defendant must have had a prior opportunity to cross-examine the witness.
But the Crawford court, the Wisconsin Supreme Court explained, did not foreclose the opportunity for courts to apply historical exceptions, exceptions in place when the U.S. Constitution was founded.
The court made this conclusion assuming Somerville’s statements were testimonial, but did not address that question specifically. Chief Justice Shirley Abrahamson wrote a concurring opinion, basing her conclusion on the grounds that Somerville’s statements were not testimonial.
“The majority opinion unnecessarily creates an exception to an accused’s Sixth Amendment right to confrontation – an exception not yet recognized by the United State Supreme Court,” Chief Justice Abrahamson wrote. “The present case can be decided upon existing law.”
But Justice Crooks saw no reason to avoid the question of whether a dying declaration constitutes an exception to an accused’s Sixth Amendment right to confrontation, and noted that the U.S. Supreme Court has not decided the issue.
“While the United States Supreme Court has yet to give its explicit blessing to the dying declaration exception, it has given us no reason to abandon a principle that is so deeply rooted in the common law,” wrote Justice N. Patrick Crooks in the opinion.
The supreme court noted that nothing stops defendants from pursuing an aggressive impeachment of a dying declaration.
“In other words, if there is evidence the declarant had a motive to accuse falsely, introduce it. If there is evidence that the declarant was cognitively impaired and incapable of perceiving events accurately, introduce it,” Justice Crooks wrote. “Such facts may, in particular cases, justifiably undermine the reliability of a dying declaration.”
The supreme court rejected Beauchamp’s argument that dying declarations are likely to be unreliable and advances in forensic science make the exception unnecessary.
“We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder,” Justice Crooks wrote.
The court also ruled that it was not plain error for the circuit court to allow prior inconsistent statements of witnesses who identified Beauchamp as the shooter but later recanted.
Craig S. Powell of Kohler & Hart LLP, Milwaukee, represented Marvin Beauchamp. Assistant Attorney General Maura F.J. Whelan represented the state.