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In People v. Nieves-Andino , the Court of Appeals allowed the introduction of police testimony which recounted the statements made by a dying man.

On November 28, 2000, Jose Millares was shot three times on a Bronx street corner. When officers arrived, they found Millares lying between two parked cars, surrounded by a crowd of onlookers.

Officer Doyle called for an ambulance, and then began to speak with Millares, who lay dying in the street. Amazingly, Millares was able to tell Doyle his name, address, phone number, and that a man named "Bori" had shot him after an argument. Meanwhile, another officer at the scene found four discharged casings from a .380 pistol.

Michael O'Carroll, Millares's "business associate," witnessed the murder and informed the officers that "Bori" was the alias of Juan Nieves-Andino, Millares's former employee-turned-competitor.

Nieves-Andino was apprehended in Puerto Rico and returned to New York to face prosecution for second-degree murder. At trial, the defense objected to Officer Doyle's recounting of Millares's dying statements as a violation of Nieves-Andino's Sixth Amendment right to confront his accuser. The Bronx County Supreme Court admitted the evidence as an "excited utterance," an exception to the rule against hearsay.

After his conviction, Nieves-Andino appealed to the Appellate Division, First Department, and the Court of Appeals, which both affirmed.

The Sixth Amendment of the U.S. Constitution guarantees the accused the right "to be confronted with the witnesses against him." This ensures that a criminal defendant will be able to cross-examine these individuals in an effort to reveal weaknesses or inconsistencies in their testimony.

In this instance, a corpse could not be cross-examined, even by the best trial attorney. Yet, notwithstanding that impediment, the United States Supreme Court -- our nation's highest court -- has previously held that responses to police inquiries are not "testimonial" when the circumstances "objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."

Since Officer Doyle's questioning of Millares was not in furtherance of a criminal investigation, but to assess the nature of the victim's injuries and whether an ongoing danger existed, any responses given by Millares were "non-testimonial," and their admission was not barred by the Confrontation Clause.

At the Court of Appeals, Judge Jones concurred with the majority's decision, but disagreed with its reasoning. The dissenter was of the opinion that Millares's statements should have been excluded under the Sixth Amendment. Yet, that error still would not disturb Nieves-Andino's conviction.

Since the prosecution had established its case beyond a reasonable doubt -- by way of O'Carroll's testimony and the corroborating autopsy evidence -- Jones was of the opinion the inclusion of Officer Doyle's testimony was "harmless error."

Thanks to Officer Doyle, and out state's appellate courts, a dead man was heard.

To download a copy of the Court of Appeals's decision, please use this link: People v. Nieves-Andino