What is a “Dying Declaration” in Maryland?

american-cemetery-normandy-1433350-2-mA recent appellate case considered the “dying declaration” exception to the rule against hearsay evidence, among other things. The defendant was indicted for first-degree murder, armed robbery, conspiracy, and possession of a firearm by a person not permitted to have one. Before the trial, he moved to suppress the victim’s identification of him as the killer. The hearing judge suppressed the identification, and the State of Maryland appealed.

The murder victim, Melvin Pate, had identified his shooter to a registered nurse at a Shock Trauma Unit after the shooting before he died. He had been shot in the face and taken to the hospital to be stabilized. A few days later, he was sent to the Shock Trauma Unit in a critical and very unstable condition. His spinal cord was severed in his neck, which left him a quadriplegic. His lung had collapsed, and he was breathing with the help of a ventilator and eating through a feeding tube.

The issue in this case was whether the victim’s identification of the shooter’s photograph counted as a dying declaration exception to hearsay rules. Hearsay is “an out-of-court statement” that is introduced to prove the truth of what is being asserted. Hearsay evidence is not admissible unless an exception applies. One exception applies when somebody is unavailable as a witness and that person is making a statement with the belief of imminent death. This is called the “dying declaration exception.”

In Maryland, under Rule 5-804(b)(2) if somebody is unavailable as a witness to a homicide prosecution, the rule against hearsay will not exclude that person’s statement about the cause of what he believes is his imminent death. The appellate court explained that the statement has to reflect the victim’s personal knowledge. Any statements by the victim identifying a shooter fall within Rule 5-804(b)(2).

It isn’t necessary for a victim to state he expects he will die. The important issue is whether his condition is so poor that impending death can be inferred. It can also be inferred where people surrounding the victim have made statements that would lead the victim to believe he is likely to die imminently.

Historically, the dying declaration exception was only used in homicide prosecutions, but now it applies to attempted homicide or assault with intent to commit homicide.

The two issues before the court in determining whether the victim’s identification should be admitted were whether the victim was aware his death was imminent and his competence to give a meaningful declaration. With regard to the first issue, the victim’s mother was told her son wouldn’t make it when she came to the Shock Trauma Unit, and her son heard and cried.

A detective visited the unit to see if the victim could identify the shooter from a photographic array. The nurse had asked the victim questions to figure out if he was alert, and the victim had used a blinking technique to respond, since he was on a ventilator. The victim used the blinking technique to identify the photograph of the shooter, rather than words.

The victim did not actually die right away but lived two more years, even though he eventually died of the gunshot wounds. Although there was a lapse between the declaration and the victim’s death, the appellate court reasoned it didn’t disqualify the admissibility of the dying declaration.

The order suppressing the evidence was reversed. If you are arrested or charged with a crime, you should consult with an experienced Maryland criminal defense attorney. We will develop a strong strategy to defend your case. Contact us at 301-519-2801 or via our online form.

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Criminal Email Harassment in Maryland,  Maryland Criminal Lawyer Blog, February 12, 2014

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