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New York’s Appellate Division, 1st Department, has held that the admission of a man’s dying declaration of his murderer’s identity did not violate the rule set forth by the U.S. Supreme Court in Crawford v. Washington, 641 US 36. But the panel declined to create an absolute exception regarding testimonial dying declarations, instead limiting its holding to the facts of the case, State of New York v. Paul, 3861/05. The decision adds to the judiciary’s ongoing effort to clarify Crawford. “Much remains to be decided in the wake of Crawford,” Justice David B. Saxe wrote for the unanimous panel. “For one thing, the Court ‘le[ft] for another day any effort to spell out a comprehensive definition’ of the term ‘testimonial statement.’” One such potentially “testimonial” statement was at issue in Paul. Two neighbors testified that they witnessed the shooting of Derrick Thompson on July 1, 2001, on East 169th Street in the Bronx. They presented similar accounts of his final words. Both stated that as he lay dying, Thompson said that a man named “Jermaine” or “Dreds” shot him. One of the witnesses claimed she knew the defendant, Ahib Paul, as “Jermaine.” At the time of the shooting, Paul had “long, wild dreadlocks,” according to the decision. Paul was convicted of second-degree murder, first-degree manslaughter and attempted robbery. He appealed the conviction, arguing that the admission of the victim’s hearsay testimony violated his constitutional right to confront witnesses. Thursday, the appellate panel affirmed the conviction. The decision centered around the definition of “testimonial.” “At least two distinct schools of thought exist, based upon the divergent views contained in two scholarly discussions which were both cited in Crawford,” Saxe wrote. According to Richard Freidman’s “Confrontation: The Search for Basic Principles,” a hearsay statement is “testimonial” if “the declarant makes a restatement with the expectation that it will be used in the prosecution or investigation of the crime,” Saxe wrote. Under the narrower standard set forth by Akhil Reed Amar in “Confrontation Clause First Principles: A Reply to Professor Friedman,” a statement is “testimonial” only if it was “prepared by the government for in-court use.” Under Amar’s standard, which has been favored by New York courts, Thompson’s dying declaration was not testimonial and therefore admissible, the panel held. “While, parenthetically, it seems unlikely that a series of responses to an orderly series of structured questions by an investigator will often take place while the declarant’s death is imminent, in any event the statements at issue here were neither elicited in a formal manner nor elicited by an investigator,” Saxe wrote. Even under the broader exclusion proposed by Friedman, the statement could be admitted, Saxe added. That approach has a specific exception, “If the inability of the witness to testify … is attributable to wrongdoing by the accused.” The court, however, declined to determine whether “testimonial dying declarations are subject to an absolute exception to the application of the Confrontation Clause.” Jody Ratner of the Center for Appellate Litigation represented Paul. She said her client intends to file for leave to appeal. Allen H. Saperstein and Peter D. Coddington represented the Bronx District Attorney’s Office, which declined comment.

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