## Facts

- George Hodge, Jr. was shot multiple times in St. Thomas, U.S. Virgin Islands, and was later hospitalized, intubated, and unable to speak.
- Hospital staff used an established system by which Hodge communicated through blinking and nodding.
- About five days after the shooting, a police officer showed Hodge a photographic array; using the blink/nod system as interpreted by a nurse, Hodge selected a photograph of someone other than Dion Lawrence, and Lawrence’s photograph was not included in that array.
- Hodge later died from his injuries and was unavailable to testify at Lawrence’s trial.
- Lawrence was tried in federal court for first-degree murder and related offenses; the prosecution relied largely on eyewitness identification and circumstantial evidence.
- The defense sought to introduce Hodge’s non-identification of Lawrence and selection of another person to support an alternative-perpetrator theory and impeach the government’s identification evidence.

## Issues

1. Whether Hodge’s nonverbal communication, interpreted and relayed by a nurse, qualified as Hodge’s “statement” and was admissible as a dying declaration under Federal Rule of Evidence 804(b)(2).
2. Whether excluding the evidence was an abuse of discretion and, if erroneous, whether the error was harmless.
3. Whether excluding the victim’s only identification evidence improperly impaired the defense’s ability to present its theory of the case.

## Decision

- The Third Circuit held that Hodge’s blink/nod responses were his own statements, with the nurse functioning as an interpreter rather than an independent declarant.
- The court held the statement met Rule 804(b)(2): Hodge was unavailable, the case was a homicide prosecution, circumstances supported that Hodge believed death was imminent, and the statement concerned the cause or circumstances of the impending death (including identification of the shooter).
- The court ruled the district court abused its discretion by excluding the evidence as hearsay.
- The court found the error not harmless because the excluded evidence was central and noncumulative and could have affected the jury’s assessment of guilt.
- The court vacated the convictions and remanded for a new trial.

## Legal Principles

- Nonverbal conduct intended as an assertion (including blinking/nodding) can constitute a “statement” for hearsay purposes.
- For dying declarations under Fed. R. Evid. 804(b)(2), belief in imminent death need not be expressly stated and may be inferred from wounds, medical condition, and surrounding circumstances.
- Identification of an assailant can fall within the “cause or circumstances” requirement of Rule 804(b)(2) in a homicide prosecution.
- Interpreter-mediated communication may be treated as the declarant’s statement; concerns about translation accuracy generally go to weight for the jury, not admissibility.
- Excluding admissible, uniquely exculpatory evidence central to the defense can be reversible error when it undermines the reliability of the verdict.

## Conclusion

The Third Circuit required a new trial because the victim’s blink/nod identification of a different suspect was admissible as a dying declaration, and its exclusion deprived the jury of critical, potentially exculpatory evidence in a case resting heavily on identification proof.


United States v. Lawrence, 349 F.3d 109 (3d Cir. 2003)