A matter of evidence? Fact and fiction in the courtroom
Dying declarations
The grim case of Chavez v. Martinez turns on a late-night shooting in Oxnard, California, in which Oliverio Martinez was badly wounded by gunshot from police officer Peña; he would be left blind and quadriplegic.1 Taken to the ER, he was interrogated relentlessly by Officer Chavez as he slipped in and out of consciousness and medics attempted to minister to his wounds. Later, he sued Chavez, but did not win. A deeply divided Supreme Court rejected his Fifth and Fourteenth Amendment claims that his interrogation was coercive on the grounds that his admissions in the ER were never used against him in a court of law. He was never tried. This set off a debate between Justices Thomas and Scalia on the one hand, and Stevens and Kennedy on the other, as to whether Miranda v. Arizona bans only coerced confessions used against a defendant in court—or reaches further, to ban brutal police behavior. Stevens in particular cites passages from the audio recording of the interrogation to make his point; just a short excerpt:
O. M. : I don’t want to say anything anymore.
Chavez: No?
O. M. : I want them to treat me, it hurts a lot, please.
Chavez: You don’t want to tell [sic] what happened with you over there?
O. M. : I don’t want to die, I don’t want to die.
Chavez: Well if you are going to die tell me what happened, and right now you think you are going to die?
O. M. : No.
Chavez: No, do you think you are going to die?
O. M. : Aren’t you going to treat me or what?
Chavez: Look, think you are going to die, [sic] that’s all I want to know, if you think you are going to die? Right now, do you think you are going to die?
O. M. : My belly hurts, please treat me.
Chavez: Sir?
O. M. : If you treat me I tell you everything, if not, no.
Chavez: Sir, I want to know if you think you are going to die right now?
O. M. : I think so.
(at 786)
And this macabre exchange goes on and on. But in his insistence that Martinez tell his story if he is about to die—indeed, because he is going to die—Officer Chavez represents a venerable legal doctrine as well as a long literary tradition. Justice Kennedy calls Chavez’s continued interrogation of Martinez in his agony “torture,” but he concedes that the pain of the dying witness may not necessarily preclude his wanting to speak. His fear of death may indeed constitute a motive to speak. Kennedy continues:
The words of a declarant who believes his death is imminent have a special status in the law of evidence. See, e. g., Mattox v. United States, 146 U. S. 140, 152 (1892) (“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 Fed. Rule Evid. 804(b)(2) (providing an exception from the hearsay rule for certain statements uttered under belief of impending death). A declarant in Martinez’s circumstances may want to tell his story' even if it increases his pain and agony' to do so. The Constitution does not forbid the police from offering a person an opportunity to volunteer evidence he wishes to reveal.
(at 797)
Kennedy may remind us of the dying Hamlet, and his urgent request to Horatio:
Absent thee from felicity' awhile,
And in this harsh world draw thy breath in pain
To tell my story.
(V, ii, 347-9)
But such does not appear to be Oliverio Martinez’s concern at this moment.
In law, then, the blanket rule against hearsay' evidence—the acceptance in court of sworn testimony' only, subject to confrontation of one’s witness—finds an exception in the ancient doctrine of dying declarations, which according to McCormick on Evidence existed long before the rule against hearsay took root in the early 18th century'. Mattox v. U. S., the 1892 case cited by' Kennedy, itself cites an English case from 1840, Regina v. Perkins-.
[T]he deceased received a severe wound from a gun loaded with shot, of which wound he died at five o’clock the next morning. On the evening of the day on which he was wounded, he was told by a surgeon that he could not recover, made no reply, but appeared dejected. It was held by all the judges of England that a declaration made by him at that time was receivable in evidence on the trial of a person for killing him as being a declaration in articulo mortis. There, the declaration was against the accused, and obviously no more rigorous rule should be applied when it is in his favor. The point is to ascertain the state of the mind at the time the declarations were made. 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.2
In other words, the certainty of impending death will remove any temptation to lie—because, as the Perkins court will further note, of the imminence of eternal damnation if one does. The “dying declarations” doctrine was given a characteristically aphoristic form by Justice Cardozo in 1933: “The patient must have spoken with the consciousness of a swift and certain doom.”3 Cardozo also states, citing an 1860 English case, Regina v. Peel: “There must be ‘a settled hopeless expectation’ ... that death is near at hand, and what is said must have been spoken in the hush of its impending presence” (at 291).
The dying declarations doctrine has fallen into some disrepute, yet as the Federal Rule of Evidence 804(b)(2) cited by Justice Kennedy demonstrates, it still stands as good law. Like the oath, it responds to some sense of a mysterium tremendum—to use the evocative term of Rudolph Otto in his book, The Idea of the Holy—that prevents falsehood.4 Faced with imminent death (and all the cases contend it must be imminent, not simply likely or probable), one does not lie. I have long been dubious about what tremendum may be left in the oath in a secular age—but at least the lie under oath provides grounds for prosecution for petjury. The dying declaration seems to have a more absolute sort of status—“mystical,” Charles McCormick calls it—since the declarant is gone by the time it becomes evidence in a court of law.5
The religious dimension of the dying declarations doctrine may be even more evident when we juxtapose it to the “Newgate Biography”—those confessional narratives collected by the Ordinary (the chaplain) of Newgate Prison at the foot of the Tyburn gallows, and published by him in chapbooks costing sixpence that tended to sell quite well, and to bring in a handsome supplement—as much as £200—to his ecclesiastical stipend. The genre continued for about a century, from 1676 to 1772, and offered accounts of some 2,500 hangings. They are pathetic stuff, tales both sensationalistic and moralistic, recounting how ordinary lives could slip gradually, though moral negligence, into crime. Many an idle apprentice, for instance, will end up robbing his master or setting his house afire. They are presented often as first-person accounts. But, of course, they are “as told to”—to this professional biographer who is also a representative of the Church of England.6 While the
Newgate biographies are considered an exceptionally rich source of information on ordinary lives in seventeenth- and eighteenth-century' England, those of us who worry' about narrative forms and veracity must harbor some doubts. They may' resemble the confessions produced in present-day custodial interrogations, where the words of the suspect-perpetrator are lent to him oilier by the police. Though narrated in the first person, they' might be characterized as hearsay.
The classical novel generally prefers to have its dying declarations take place at center stage. I have not done a ty'pology of novelistic death scenes, but I have the impression that they range from the sacrificial/Christologic through the Gothic to the Socratic, as in J.-L. David’s tableau of the Death of Socrates, where he sits abed exhorting his disciples as he prepares to drink the hemlock. The sacrificial, of course, stands early in the tradition in Clarissa Harlowe’s death with the words “Oh death! Where is thy' sting!” on her lips. And is worthily continued with Sydney Carton’s “It is a far, far better thing that I do, than I have ever done” in Charles Dickens’s Talc of Two Cities. The best example of the Socratic in the novel (though it is also Gothic) might be the death of Old Goriot in Balzac’s Pere Goriot, a long personal confession and diatribe, a scathing lesson addressed to the entire nineteenth century in which all familial relations have become denatured, so that he declares there shall be “No more marriages!” Marriage is a financial transaction by which fathers are replaced by rapacious sons-in-law, and daughters become whores. Society' will perish if fathers are trodden underfoot, Goriot declares; and the repudiation of paternity echoes throughout the Human Comedy, where the “law of disorganization” that characterizes contemporary French society can be traced directly to the parricide of 1793, the killing of the father-king Louis XVI on the guillotine. Goriot’s death rant is all about a failure in the transmission of wisdom through traditional routes, most often figured as father to child/
One could accumulate versions of the death scene as the passing-on of wisdom from one generation to another in many' different registers, from the sentimental to the ironic or even the blasphemous. Dickens in particular wrings illumination from the death bed and its legacies in nearly' all his novels. Barkis’s “going out with the tide,” in David Copperfield, is the least talkative but possibly' the most effective of his death scenes: Barkis has only' to repeat the famous single line that characterizes him, “Barkis is willing,” to achieve the effect of transmission on Davy’ and the Peggottys. Other death scenes are far more elaborate: Magwitch, Little Nell. At times, unbearably' maudlin. Though also important, as in Stephen Blackpool’s death in Hard Times: “I ha’ fell into th’ pit, my' dear, as have cost w’in the knowledge o’ old fok now livin’, hundreds and hundreds o’ men’s lives”—an indictment of industrial England somewhat compromised by' his hope that the star he has seen from deep in the abandoned mine will lead to an understanding of masters and workers. Then there is the extraordinary' twist given to the resolution of death in Wilkie Collins’s The Woman in White in the chapter called “The Narrative of the Tombstone,” which reads: “Sacred to the Memory' of Laura, Lady Glyde”—who does not in fact lie under the tombstone, but rather her unfortunate half-sister, Anne Catherick. A couple of hundred more pages will be needed to sort out the true meaning of the deceptive tombstone, and to get the legacies in the novel correctly aligned.
Flaubert, I note, offers us parodies of the Christologic dying declaration in Emma Bovary’s suicide, and her encounter at the final moment of her agony' with the blind beggar, singer of obscene ballads:
“The blind man!” she cried out.
And Emma burst into laughter, horrible, frantic, despairing laughter, thinking she saw the hideous face of the poor wretch looming like terror itself in the darkness of eternity'.8
Flaubert will also parody' the Socratic dying declaration in Sentimental Education, with the demise of the rapacious capitalist and fixer Dambreuse, who cherished “Power with such love that he would have paid to be able to sell himself.” Here, as in so many nineteenth- and early' twentieth-century' novels, what seems to be at stake in moments of ultimate truth and transmission is a legacy larger than a single person. Will the ilk of Dambreuse inherit France? What is the legacy' of this historical moment to the future? E. M. Forster in a famous chapter of Howards End pursues a mediation, looking down from the Purbeck Hills, on the question: To whom does England belong? Across the Channel, you see a variant in the question thrown up by' a revolutionary' century': Who shall inherit France? This is the crucial question posed by Julien Sorel’s life and death in Stendhal’s The Red and the Black. The usurpatoty career of Julien Sorel—modeled, of course, on Napoleon’s—puts into question all the traditional lines of inheritance.
One could go on accumulating examples, in George Eliot, Thomas Hardy, Virginia Woolf, Emile Zola, Marcel Proust (whose entire novel may be a dying declaration)—in all those novelists who, however experimental, feel an attachment to the central moral and political questions of the traditional novel, and who see the novel as engaged in the transmission of wisdom, to reprise the term used by' Walter Benjamin in talking about the oral tale. It is because, as Benjamin suggests, the reader of novels is solitary, uncounseled, that the wisdom passed on in the death he or she reads about matters so much. “Death is the flame at which we warm our shivering lives,” he writes.9 We confer on the death scene and the dying declaration an authority’ because we can never know it in our own lives, since the “meaning of life” can become apparent only' retrospectively.
Joseph Conrad dramatizes this very' problem over and over, most succinctly' and dramatically' in Heart of Darkness, where Marlow the narrator comes to fix his attention on Kurtz’s dying declaration: “The horror! The horror!” Kurtz has appeared to Marlow especially as “a voice” discoursing eloquently' of life’s meanings. Following Kurtz’s death, Marlow comes close to death himself, and discovers: “I was within a hair’s breadth of the last opportunity for pronouncement, and I found with humiliation that probably I would have nothing to say.” Kurtz had stepped over the edge, “while I had been permitted to draw back my hesitating foot.” Marlow goes on to address what seems to me the crucial issue, in literature as in law:
And perhaps in this is the whole difference; perhaps all the wisdom, and all truth, and all sincerity, are just compressed into that inappreciable moment of time in which we step over the threshold of the invisible. Perhaps! I like to think that my summing-up would not have been a word of careless contempt. Better his cry—much better. It was an affirmation, a moral victory' paid for by innumerable defeats, by abominable terrors, by abominable satisfactions.10
The passage is a crucible of all our problems with Marlow as narrator: a “word of careless contempt” would seem to be just what “the horror! the horror!” is—yet Marlow insists on seeing it as a moral victory' following a life of abomination. Yet Kurtz’s affirmation is such that when Marlow later meets Kurtz’s Intended and she asks him for her hero’s last words, he can only offer her a lie. “I was on the point of crying at her: ‘Don’t you hear them?’” But instead of repeating the words of horror he hears “like the first whisper of a rising wind,” he pulls himself together to offer the conventional dying declaration: “‘The last word he pronounced was—your name’” (p. 161) I knew it, she replies, assuring transmission of a lie.
Conrad gives us the theory' of the last utterance in the novel he was composing contemporaneously with Heart of Darkness, Lord Jim, where Marlow meditates:
And besides, the last word is not said,—probably shall never be said. Are not our lives too short for that full utterance which through all our stammerings is of course our only and abiding intention? I have given up expecting those last words, whose ring, if they' could only be pronounced, would shake both heaven and earth. There is never time to say our last word ...n
Here I think Conrad offers his justification of the modernist novel with its incomplete, restless endings—as in Henry' James, for instance—and gives us a profound critique of the law, which wants to believe in last words to the extent that it still today' recognizes an exception to the hearsay' rule in “dying declarations.”
That seems to me important beyond the one example of dying declarations doctrine: the law is invested in believing in all sorts of words whose ring is supposed to shake heaven and earth. Law speaks from a place of mystified authority from which it can pronounce, in the words that so often conclude Supreme Court opinions: “It is so ordered.” Legal adjudication requires finality, of course. But that finality, as Justice Jackson long ago noted, offers an illusion of the authoritative and indeed the infallible that is deceptive.12 Legal actors become used to assuming that the performative function of their words confers on them the mysterium of the dying declaration, the testimony from beyond the grave that cannot, by its very nature, be questioned. How often do we feel that legal speech needs to be more Conradian, to understand that the finality of the judicial word needs to be met with the skepticism of Marlow if not the cynicism of Kurtz.
Notes
- 1 Chavez p. Martinez, 538 U.S. 760 (2000). This chapter was originally delivered to the annual conference of the Association of Law, Culture, and the Humanities at Georgetown Law Center in March 2018. My thanks to Sarah Raft’ for organizing the panel in which it figured.
- 2 Mattox v. United States, 146 U.S. 140 (1892), at 152.
- 3 Shepard v. US, 290 U.S. 96 (1933), at 290.
- 4 See Rudolph Otto, The Idea of the Holy, trans. J. W. Haney (Oxford: Oxford University Press, 1958).
- 5 Charles T. McCormick, Law of Evidence (St. Paul: West Publishing, 1954), §258.
- 6 See my discussion of these accounts in Troubline Confessions: Speaking Guilt in Law and Literature (Chicago: University of Chicago Press, 2000), 159-60.
- 7 See my Introduction to Pere Goriot, trans. Henn' Reed (New York: Signet Classics, 2004), ix-xvii.
- 8 Gustave Flaubert, Madame Bovary, trans, Lydia Davis (New York: Penguin, 2010), 290.
- 9 Walter Benjamin, “The Ston'teller,” in Illuminations, trans. Harn' Zohn (New York: Schocken 1978), 101.
- 10 Joseph Conrad, Heart of Darkness in Youth and Two Other Stories (Garden City: Doubleday Page and Co., 1924), 151.
- 11 Joseph Conrad, Lord Jim (Garden City: Double Page and Co., 1924), 225.
- 12 See Justice Robert Jackson’s famous comment on the Supreme Court: “We are not final because we are infallible, we are infallible because we are final.”
