The Accusing Hand

Charge: murder. M.O.: poisoning patients in a Veterans' Administration hospital where D was a nurse. At D's trial the prosecution seeks to introduce a note written by a patient, now deceased, two hours after suffering a respiratory arrest allegedly caused by D. The patient's doctor testified that about two hours after the arrest he ascertained that the patient was resting comfortably and assured the patient he was out of danger. The doctor then asked if anyone had given him any medication just before the arrest. The patient responded by writing D's name. On D's objection, what ruling and why?

Should out-of-court statements of present memory or facts believed by the declarant ever be admitted to show that the remembered or believed fact previously existed? In other words, should the Hillmon exception, incorporated in Rule 803(3), point backward in time as well as forward?

In the Shepard case, discussed above at page 479 on another point, the prosecution sought to introduce testimony through a nurse that the defendant's wife, the victim, had told her, "Dr. Shepard [the deceased's husband] has poisoned me." Admissible?

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