Dying Declaration: Judicial Musket Fire in the Boston Massacre

jorisvo, Stained glass window depicting an old man of his deathbed, surrounded by family. Stained glass window in the German Church in Stockholm, Shutterstock.

It’s perhaps fitting that one of the most controversial hearsay exceptions was first used in one of the most controversial trials of United States history. The muskets the British soldiers fired in the Boston Massacre found their marks in American patriotism. The massacre became a watershed event in American history – one of the events that incited the American Revolution.

A statement defense attorney John Adams introduced into evidence also echoed through the hallways of judicial history. The Boston Massacre trials marked the first time the American history the dying declaration was used as evidence.

What is the dying declaration? Why is it so controversial? And what role did it play in the Boston Massacre?

The dying declaration as a hearsay exception

Hearsay is one of those boundary stones that demarcate the law of evidence. It consists of an out-of-court statement, made by anyone other than a defendant, offered into evidence to prove the truth of the matter asserted. Courts exclude hearsay because it isn’t as reliable as court testimony – it isn’t made under oath and isn’t subject to cross-examination. The jury can’t judge the declarant’s demeanor.

But there are lots of exceptions. One of them is called the dying declaration.

Here’s how the Federal Rules of Evidence define the dying declaration. State rules of evidence are similar.

Rule 804. Hearsay Exceptions: Declarant Unavailable

 

(b) Heasay Exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

….

(2) Statement Under Belief of Impending Death. In a trial for homicide or in a civil action, a statement a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.*

Not a deathbed confession

Note the difference.

A declarant must have made a statement about the cause of what he or she believes to his or her impending death. Some states require that the declarant actually died before allowing the statement into evidence.

Courts consider dying declarations reliable enough to overcome the hearsay rule: A dying person doesn’t have reason to lie, and a statement about the cause of death might be the only evidence available. Think of it as giving the dead a say in court.

When a person clears their conscience on their deathbed, however, and confesses to a crime, law enforcement can use that to help close a case, but it can’t be admitted into evidence.

Shakespeare and the dying declaration

The dying declaration dates all the way back to 1202 – the reign of King John. And that’s perhaps fitting, because Shakespeare includes a dying declaration in his play King John (Act V, scene 4):

Have I not hideous death within my view …
What in the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false, since it is true
That I must die here and live hence by truth?

Dying declaration and the confrontation clause

The possibility that some people might lie on their deathbed makes the dying declaration controversial. In a 2004 decision, the U.S. Supreme Court called many of the traditional hearsay exceptions into question: The lack of opportunity to cross-examine the declarant can violate the confrontation clause of the Constitution. The Court hasn’t specifically addressed the dying declaration, but its future is now in the air.

Paul Revere’s engraving of the Boston Massacre (1770, public domain), via Wikipedia.

Dying declaration in the Boston Massacre

As a 34-year-old lawyer, the future President, John Adams, defended the British soldiers. The job guaranteed unpopularity with the American patriots, but Adams felt it was his ethical duty to offer representation. He did a good job, too. Most of the soldiers were acquitted, and for the other two, Adams could reduce the crime down to manslaughter.

Critical to his defense was the dying declaration of Patrick Carr, one of the victims. This testimony constituted the first use of the dying declaration in the American colonies. In violation of colonial law, two British soldiers had fired on a mob of Americans when the soldiers felt threatened. Carr’s deathbed statement to his doctor goes to the cause of his death and indicates a lack of premeditation – an element of murder.

Here is John Adams in the courtroom, examining the doctor on the stand:

John Adams, Second President of the United States, Gilbert Stuart [1823, Public domain], via Wikimedia Commons.

Testimony of Dr. John Jeffries

Q. Was you Patrick Carr’s surgeon?

 

A.  I was in the company of others. I was called that evening about eleven o’clock to him…. Dr. Lloyd, who was present, turned round to me and said Jeffries, I believe this man will be able to tell us how the affair was, we had better ask him: I asked him then how long he had been in King-street when they fired? he said he went from Mr. Field’s when the bells rung, when he got to Walker’s corner, he saw many persons coming from Cornhill, who he was told had been quarrelling with the soldiers down there, that he went with them as far as the stocks, that he stopped there, but they passed on: while he was standing there he saw many things thrown at the Sentry. I asked him if he knew what was thrown? He said he heard the things strike against the guns, and they sounded hard, he believed they were oyster shells and ice; he heard the people huzza every time they heard anything strike that sounded hard: that he then saw some soldiers going down towards the Custom House, that he saw the people pelt them as they went along, after they had got down there, he crossed over towards Warden and Vernon’s shop, in order to see what they would do, that as he was passing he was shot, that he was taken up and carried home to Mr. Field’s by some of his friends. I asked him whether he thought the soldiers would fire; he told me he thought the soldiers would have fired long before. I then asked him whether he thought the soldiers were abused a great deal after they went down there; he said he thought they were. I asked him whether he thought the soldiers would have been hurt if they had not fired; he said he really thought they would, for he heard many voices cry out, kill them. I asked him then, meaning to close all, whether he thought they fired in self-defense, or on purpose to destroy the people; he said he really thought they did fire to defend themselves, that he did not blame the man, whoever he was, that shot him. This conversation was on Wednesday. He always gave the same answers to the same questions every time I visited him.

 

Q.  Was he apprehensive of his danger?

 

A.  He was told of it. He told me … he was a native of Ireland, that he had frequently seen mobs, and soldiers called upon to quell them…he had seen soldiers often fire on the people in Ireland, but had never seen them bear half so much before they fired in his life…

 

Q: How long did he live after he received his wound?

 

A. Ten days.

 

Q.  When had you the last conversation with him?

 

A.  About four o’clock in the afternoon, preceding the night on which he died, and he then particularly said, he forgave the man whoever he was that shot him, he was satisfied he had no malice, but fired to defend himself.**

Justice Oliver gave the following instruction to the jury:

This Carr was not upon oath, it is true, but you will determine whether a man, just stepping into eternity, is not to be believed; especially in favor of a a set of men by whom he had lost his life.***

John Adams’s legacy

John Adams later confided to his diary that his representation of the British soldiers was one of the most important things he’d ever done in his life:

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.****

You might also like: The Five Greatest Criminal Trials of History. It also goes into the witch trials John Adams so despised.

What do you think? Should dying declarations be allowed as evidence?

Literature on point:

****John Adams, diary, March 5, 1773 (public domain).

Crawford v. Washington, 541 U.S. 36 (2004).

*Federal Rules of Evidence.

***Frederic Kidder & John Adams, History of the Boston Massacre, March 5, 1770 (Albany, NY: Joel Munsell, 1870).

Liang, B. A. and Liang, A. C., Lies on the Lips: Dying Declarations, Western Legal Bias, and Unreliability as Reported Speech, Law Text Culture , 5, 2000.

Douglas Linder, “The Boston Massacre Trials.” Jurist (July 2001).

**Trial of the British Soldiers (Boston: William Emmons, 1824).

Greengages: Mark Twain and the Sweetest Fruit of Germany

A bowl of greengages.

He put up a fine luncheon for us and added to it a quantity of great light-green plums, the pleasantest fruit in Germany…. Mark Twain, A Tramp Abroad

Greengages

Anna Pavord, writing for the British newspaper Independent, calls them “most ambrosial of all tree fruit.”

David Karp describes them as “the best fruit in the world” in the New York Times.

Mark Twain traveled to Germany in 1878 and tried them at his hotel in Heilbronn, where he dubbed them the “pleasantest fruit in Germany.”

With respect to sweetness, all three authors have a point. Greengages taste like honey. Long considered one of the sweetest fruits, the green plums enjoy a delectably “noble” reputation in Germany. Germans call them the “queen of the plums.” David Karp measured their sugar content in France with his refractometer and obtained a value, 30.5, that nearly went off the scale.

Greengages on a branch.

Hard to grow

You’ll have a hard time finding fresh greengages in America. They’re difficult to grow. Rain can make them split open. It’s expensive to pick the fruit. And they don’t produce regularly – greengage trees will sport a bumper crop one year and the next, for no apparent reason, grow only a few plums. And to make it worse, you should really leave them on the tree until they’re ripe. They taste best fresh off the tree.

Popular in Europe, but not America

Greengages originated in the Middle East. France has had them since the 15^th century. In both Germany and France, the fruit is named after Queen Claude (d. 1524): Reine-Claudes, Reineclaude, or Reneklode. She must have liked the light green plums as much as Twain did.

The fruit came to England in the 17^th century. The man who introduced them, Sir William Gage of Suffolk, also lent them his name.

Greengages were once popular in the United States, but farmers found them too difficult to grow. They have almost vanished from the American orchards and tables. Across the ocean, however, greengages surfed a juicy wave of popularity in the 19^th century – at the time Mark Twain tried them in Heilbronn. In fact, German markets of the 18^th century often forbade all other plum varieties outside of greengages and mirabelles. The other varieties were thought to be unhealthy.

Greengages. Photo from Pixabay, with permission.

 Pleasantest fruit of the summer?

Summer begins this week, and after that the plum season will soon be upon us. Keep your eyes open for the queen of the plums at the marketplace and offer yourself a treat Mark Twain once enjoyed. One taste might transport you to ambrosial heaven.

Have you ever had the opportunity to try a greengage? If so, what did you think of the taste?

Literature on point:

Karl Günther Barth, “Die Königin der Pflaumen – ein fast vergessene Sorte,” Hamberger Abendblatt (2 August 2014).

Rudolf Habs & L. Rosner, Appetitlexikon (Insel Verlag 1982).

David Karp, “A Finicky Fruit Is Sweet When Coddled,” New York Times (1 Sept. 2004).

Anna Pavord, “Plum job: A juicy guide to greengages and plums,” Independent (12 August 2011).

“Reineclaude,” Lebensmittel Warenkunde (2017).

Reneklode aus Oullins, Manufactum

Mark Twain, A Tramp Abroad, ch. 14 (public domain).

Mark Twain’s “A Dying Man’s Confession”: Truth or Tall Tale?

Mark Twain, Library of Congress Prints and Photographs Division, public domain

God! how delicious the memory of it!—I caught him escaping from his grave, and thrust him back into it. – Mark Twain, “A Dying Man’s Confession,” in Life on the Mississippi

 Murder and revenge.

These two themes form the warp and weft in “A Dying Man’s Confession,” the most memorable short story in Mark Twain’s Life on the Mississippi. The story spans the globe. It starts a murder in Arkansas during the Civil War and ends in one of the creepiest buildings of Germany history: the Leichenhaus (literally: corpse house) or waiting mortuary. And it contains a forensic method that was very modern for its time.

But are there any kernels of truth in Twain’s story?

 A bit of background: the German Leichenhaus

Waiting halls for the dead sprung up throughout Germany in the 19^th century, in part due to societal fears of premature burial, and in part due to the medical profession’s argument that decomposition constituted the only sure sign of death.  Bodies were laid out in the mortuary halls, in their coffins and covered with shrouds, to await that one sure medical sign before burial. Flowers decked the coffins to offset the odor.

To prevent someone from being buried alive, the mortuary attached rings and cables to the hands of the presumptive dead. If a hand moved, a bell would sound and alert a mortuary attendant, trained to give first aid.

The Munich Leichenhaus. Garner’s Magazine, 1833 (public domain).

 Twain in the Munich Leichenhaus

Munich’s Leichenhaus was one of the most famous. Open to the public, it quickly became a tourist attraction. Mark Twain visited on Jan. 4, 1879. His impressions unnerved him:

 Toward the end of last year, I spent a few months in Munich, Bavaria…. One day, during a ramble about the city, I visited one of the two establishments where the Government keeps and watches corpses until the doctors decide that they are permanently dead, and not in a trance state. It was a grisly place, that spacious room. There were thirty-six corpses of adults in sight, stretched on their backs on slightly slanted boards, in three long rows—all of them with wax-white, rigid faces, and all of them wrapped in white shrouds. Along the sides of the room were deep alcoves, like bay windows; and in each of these lay several marble-visaged babes, utterly hidden and buried under banks of fresh flowers, all but their faces and crossed hands. Around a finger of each of these fifty still forms, both great and small, was a ring; and from the ring a wire led to the ceiling, and thence to a bell in a watch-room yonder, where, day and night, a watchman sits always alert and ready to spring to the aid of any of that pallid company who, waking out of death, shall make a movement—for any, even the slightest, movement will twitch the wire and ring that fearful bell. I imagined myself a death-sentinel drowsing there alone, far in the dragging watches of some wailing, gusty night, and having in a twinkling all my body stricken to quivering jelly by the sudden clamor of that awful summons!*

 The experience sparked a short story.

 A Dying Man’s Confession

“A Dying Man’s Confession,” which climaxes in the Munich Leichenhaus, begins in Arkansas during the Civil War.  A German on his deathbed, whom Twain supposedly met during his Munich travels, narrates the story. He lived in Napoleon, Arkansas with his wife and daughter during the war. But one night, during a burglary, the narrator was chloroformed and his family murdered. One burglar was missing his thumb and was the nicer of the two. His accomplice committed the murder; the thumbless man could only protest.

The burglary was interrupted when the burglars’ company arrived and the captain asked for water; the burglars left with their comrades. The poor narrator found his wife and daughter murdered – along with an important clue: a piece of paper with a thumbprint in their blood. When the narrator discovered that a Captain Blakely and Company C had come through that night, he decided to track down the murderers.

In disguise as a fortune teller, the narrator followed Company C and found a German private missing a thumb. He started telling fortunes, but required his clients to provide their thumbprints first as means for interpreting their future. By careful comparison, he discovered one print that matched the print from his house. The print belonged to another German private, Franz Adler. The narrator tried to murder him and thought he was successful.

 In Munich’s Leichenhaus

The narrator returned to Germany and years later began working as a watchman in the Munich Leichenhaus. There the unconceivable happened.

 Two years ago—I had been there a year then—I was sitting all alone in the watch-room, one gusty winter’s night, chilled, numb, comfortless; drowsing gradually into unconsciousness; the sobbing of the wind and the slamming of distant shutters falling fainter and fainter upon my dulling ear each moment, when sharp and suddenly that dead-bell rang out a blood-curdling alarum over my head! The shock of it nearly paralyzed me; for it was the first time I had ever heard it.

 I gathered myself together and flew to the corpse-room. About midway down the outside rank, a shrouded figure was sitting upright, wagging its head slowly from one side to the other—a grisly spectacle! Its side was toward me. I hurried to it and peered into its face. Heavens, it was Adler!

 Adler had survived the narrator’s murder attempt in Arkansas and had also returned to Munich. The narrator refused all first aid and let Adler sink back and die in his coffin.

He ends his “Dying Man’s Confession” with the observation:

 It is believed that in all these eighteen years that have elapsed since the institution of the corpse-watch, no shrouded occupant of the Bavarian dead-houses has ever rung its bell. Well, it is a harmless belief. Let it stand at that.

Interior of the Munich Leichenhaus. William Tebbs, Premature Burial and How It Can Be Prevented (1905, public domain).

 Truth or Tall Tale?

With Mark Twain, you can’t always tell. Franz Adler and his death in the Leichenhaus are certainly products of Twain’s imagination. But that begs the question of whether any of the bodies in the waiting mortuary ever did come back to life.

Jan Bondeson, a professor at the University of Wales College of Medicine has tracked down stories of premature burial, and in particular, folklore about “resurrections” in the Munich Leichenhaus. He followed the few stories about ringing bells and bodies sitting up in their coffins to their sources, only to find the 19^th-century version of fake news.

In the course of the 19^th century, how many people did the German waiting mortuaries actually save?

Zero, says Bondeson.

That’s right, none. The 19^th-century physician’s diagnosis of death was pretty accurate.

By the 1890s, Germany made the decision to remove the alarm systems from its mortuaries. And we can safely say that Twain’s depiction of Adler ringing his bell crossed the line into the highly improbable.

The narrator waits for Adler to die. Mark Twain, Life on the Mississippi (1833, public domain, via Project Gutenberg).

 Fingerprint identification

But one aspect of “A Dying Man’s Confession” was remarkably accurate and state-of-the-art. Experts had just begun to discuss fingerprinting as a method of identifying suspects. In 1858, Sir William James Herschel, Chief Magistrate in India, began using fingerprints to validate signatures on contracts and noticed you could really use the fingerprints to tell people apart. By 1877, the American Journal of Microscopy published a review of a lecture by Thomas Thompson, who suggested fingerprints could be used to identify murderers. In 1880, Dr. Henry Faulds published an article in Nature claiming fingerprints could be used to identify people.

Twain published Life on the Mississippi in 1883.

The first fingerprint identification in a criminal case was made in 1892 in Argentina.

Hats off to Mark Twain for including such an innovative technique in his short story! In fact, “A Dying Man’s Confession” might be the first murder mystery to use fingerprinting as a forensic tool.

You might also enjoy:

Mark Twain’s Raft Trip on the Neckar: Truth or Tall Tale?

Mark Twain and the Secret of Dilsberg, Germany

 Literature on point:

Jan Bondeson, Buried Alive: The Terrifying History of Our Most Primal Fear (New York: Norton, 2001).

The History of Fingerprints.

William Tebbs, Premature Burial and How It Can Be Prevented (London: Swan, Sonnenschein & Co, 1905).

*Mark Twain, Life on the Mississippi, chapter 31 (public domain).

Mark Twain, Notes and Journals, vol. II (Berkeley: Univ. of California Press, 1975) (mention of the Munich Leichenhaus visit on p. 256).