Wisconsin Supreme Court Affirms Admissibility of Dying Declaration

In 2004, the United States Supreme Court issued its most significant decision in decades on the right a criminal defendant has to confront the witnesses against him at trial in Crawford v. Washington.  In Crawford, the Court held that, with few exceptions, hearsay (testimony by one person about what another person said) could not be used to prove a defendant guilty.  Before Crawford, throughout the nation frequently allowed witnesses to testify to what other witnesses told them under exceptions to the rule of evidence governing hearsay permitting hearsay to be used where the statement of the third party recounted by the person who testified was deemed "reliable." 

Crawford made it clear the touchstone of whether hearsay would be admissible in a criminal case was not whether the statement was "reliable" (likely to be true based on circumstantial guarantees of trustworthiness) but whether the statement was "testimonial" (given by someone under circumstances where the statement was for the purpose of accusing someone of wrongdoing).  If the statement was "testimonial" (such as most statements given to a police officer) it would not be allowed unless the person who made the statement was actually present at trial to be subjected to cross examination.

Last week, in State of Wisconsin v. Beauchamp, the Wisconsin Supreme Court decided statements made by someone who believed they were about to die in which they sought to identify their killer were still admissible at criminal trials despite Crawford - even if they died and could thus not testify at trial.  The Supreme Court ruled that the United States constitutional amendment creating the right to confront witnesses (the 6th Amendment) was not intended to change what was then admissible in evidence and since court decisions from before the 6^th Amendment was adopted allowed dying declarations to be admissible, the 6^th Amendment did not prohibit them from being used in evidence now.  While this decision was not unexpected, it is an example of a significant development in the law governing criminal prosecutions that criminal defense attorneys must constantly be on the alert for in order to provide their clients with effective representation.