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“Like a Liar Gone to Burning Hell”: Shakespeare and Dying Declarations Harriet C. Frazier The relationship between the most mystical of the hearsay exceptions, the dying declaration, and Shakespeare’s plays is the subject of this paper. A statement is admissible as a dying declaration in either a civil or criminal evidentiary hearing or trial only under all of the following circumstances: (1) the death of the declarant or maker of the statement has occurred; (2) the causes or circumstances of that death are at issue in a trial; (3) the dying person made a statement concerning his death observed by a witness or witnesses for the proponent of the statement; (4) the declarant would have been a competent witness if testifying; and (5) the dying person believed his death imminent. Generally, the proponent of a dying declara­ tion is the prosecutor in a criminal homicide, and typically his or her witness(es) for relevant deathbed statements are law enforcement and health professionals such as police, sheriff’s deputies, highway patrol, ambulance drivers, paramedics, nurses, and physicians. If the death is sufficiently prolonged for the dying to make a statement, it will usually be witnessed and later testified to by our official emergency care providers. All legal systems which derive from the English recognize this hearsay exception. Both trial and appellate courts determine that one dying declarant knew death was at hand, another did not. From these multiple judicial determinations flows either the admissibility of the dying declaration or its exclusion from evidence. Since the act of dying is beyond the understanding of the living, the sting of death has been, is, and will remain an insoluble mystery. HARRIET C. FRAZIER, a lawyer who also possesses a Ph.D. in literature, teaches in the Department of Criminal Justice Administration at Central Missouri State Uni­ versity. Her previous scholarship includes a book on Lewis Theobald, the eighteenthcentury editor of Shakespeare, published by Mouton. 166 Harriet C. Frazier 167 The English legal writer and editor, Thomas Leach (17461818 ), provides the first formal link between Shakespeare’s glorious perceptions about the mystical state of dying and the present-day dying declaration exception to the hearsay rule. In Leach’s first edition of Cases in Crown Law (1789), he includes Justice Baron Eyre’s then recent decision, Woodcock’s Case (1789), without editorial marginalia other than: “In murder, the declaration of the deceased after the mortal wound is given, may be received in evidence, though the party did not express any apprehension of approaching dissolution.”! Throughout sub­ sequent editions, Leach’s initial synopsis of this case remains the same. However, in his second edition (1792) he attaches to Woodcock’s Case: “See Johnson’s Shakespeare, King John, Act the 5th, Scene the 6th, line 27.”2 Further, Leach reprints this selfsame solitary mention of Shakespeare’s King John as Wood­ cock’s Case marginalia in both his third edition (1800) and his fourth (1815) of Cases in Crown Law. In addition, the 1925 English Reports reprinting of Woodcock’s Case maintains the Shakespearian connection to dying declarations through the continuing inclusion of King John marginalia. In this manner, Shakespeare is first tied to the dying declaration exception to the hearsay rule approximately two hundred years after he wrote this early play. Woodcock’s Case is not an antiquated and long since forgot­ ten legal decision. Rather, it is the most frequently referenced of all dying declaration cases. Its massive citation and equally massive quotation surely in large part derive from the wide latitude this case affords trial and appellate judges when they assess the subjective experience of dying. In it, a homicide victim is discovered in a ditch. She is removed to the local poorhouse , and there, where she lay dying, as the Court observes, “She never expressed or seemed sensible of her approaching dissolution.. . . The surgeon said she did not seem to be at all sensible of the danger of her situation, dreadful as it appeared to all around her.”3 The Court rules her deathbed statement— one incriminating her husband—admissible. Justice Baron Eyre reasons that anyone with the character and severity of the vic­ tim’s wounds would realize she was...


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pp. 166-180
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