The First Thing We Do, We Kill All The Witnesses, part 3

State v. Harper, no. 07-0449 (Iowa Feb. 6, 2009).

This is a continuation of a particularly nasty bit of criminal business from Webster County, and, we presume, the last we will hear of Sessions Harper for a long time.

A woman badly injured in a house fire was brought to the hospital for treatment. An x-ray technician heard her say "Harper did it, Harper did it."

The attending physician asked her what had happened and she said "Sessions Harper raped me, tied me, and set my house on fire." Asked to repeat it, she did. Another doctor asked her essentially the same thing and she answered the same way. 

She died eighteen days later. Investigation revealed that the house had been torched and the fire alarms had been disabled.

Harper moved to bar the admission of the victim's statements at trial, arguing that they were hearsay and violated.....a drum roll, maestro!.....his rights under the Confrontation Clause to confront his accusers. That motion was denied and Harper was convicted and earned himself three consecutive life sentences.

The court ruled that the statements made by the victim were admissible as contemporaneously made, spontaneous excited utterances and also as dying declarations. 

Specifically, the victim knew that death was near, because she said she thought she was going to die.

In addressing the Confrontation Clause argument, the court noted that out of court statements that are non testimonial in nature are admissible where the victim is neither acting as a witness or testifying, but describing events that actually happened. In particular, the emergent view of courts around the country is that statements to medical personnel are for the most part nontestimonial.

If a statement is testimonial it may still be admissible if it is a dying declaration or a forfeiture by wrongdoing, where the intent of the defendant was to prevent the victim from testifying.

The takehome from this case is clear. With an injured victim, resist the temptation to ask what happened and who did it before the medical people have done their work, unless it seems that they are in imminent danger of death. 

What the medics learn may well avoid the reach of the confrontation clause.