The State Calls the Deceased to the Stand

All right, so why is this funny?

OK, it's funny for lots of reasons, most of them absurd.  But the most absurd bit involves a barrister seeking testimony from a dead man.  You just don't do such things.

Or do you?

A NPR story from last week tells of a crime in Brazil in which the victim came back from the grave to testify.  It involved a love triangle - two guys, one girl - that turned violent, leaving one of the male suitors, Rosa, dead.  So far, so straightforward and downright cliched.  And then:

Lenira is riven with guilt — she still loved Rosa — and so she goes to see a medium, a very famous one. She receives a letter from Rosa from the beyond.

'In the letter, channeled by this medium, the deceased confesses,' de Lima explains. 'He says his jealousy was the reason for his death. The letter includes details that only people close to him could have known.'

Nice injection of woo into the story, but here's where it gets really strange.  The letter was actually introduced in court on behalf of the shooter.  He was acquitted.

Turns out, this is not such an unusual occurrence in Brazil, particularly in the region where these events took place:

Judge Hertha Helena Rollemberg Padilha de Oliveira (no relation to Lenira) says there are many cases involving spirits in Brazil.

'If the proof is not illegal, it is lawful — you have to accept it in the process,' she says.
So when individuals present letters from the dead, written by a medium, de Oliveira says the judge has to accept it. 'He has to accept the proof in the process,' she says. 'He can't say, 'Take the letter away from the process.'

'[Brazil] is a very spiritual society,' the judge explains. 'Ninely percent of people probably will believe in some kind of spiritual influence. Most of the people believe in life after death.'

It's hard to argue with the defense attorney for introducing the letter - it worked, after all (let's hear it for zealous representation!).  It's harder to accept a court of law treating it as anything other than the trumped up sham it is.  Putting to one side that mediums are bunk (or giant douches), how on earth is the letter admissible as evidence?

In an American court, I think you'd have a serious problem getting around a hearsay objection.  True, there is an exception to the hearsay rule for statements made by a person against his own interest, but the justification for that is firmly rooted in the here and now.  The theory goes that no person would say something incriminating about himself if it wasn't true, so such statements are generally trustworthy.*  I'm not sure that justification applies to a statement from beyond the grave - if the declarant's already dead, what's the risk in making an incriminating statement?  Not to mention, those left behind and charged with a crime would have a hell of a motive to fabricate such a thing.

As it happens, according to at least one source, Brazilian law doesn't include a prohibition against hearsay, so that might not be a problem in cases like this one.  And, assuming you believe the woo involved, I suppose it's highly relevant.  It's certainly persuasive, although the two aren't always the same thing.

It's tempting to look at a story like this and dismiss it as something that happens elsewhere.  Indeed, the NPR pieces calls it "a tale of Brazil" that brings to mind the work of Gabriel Garcia-Marquez.  Only the use of spectral evidence is hardly limited to Brazil.

On January 23, 1897, Zona Shue was found dead in her home in Greenbrier County, down along the border with Virginia.  Suspicion almost immediately fell on Zona's husand, Erasmus (or Edward, if you prefer), thanks to his taking care of the body for burial, rather than leaving the task to others in the community.  The doctor who pronounced Zona dead made only a cursory examination.  Nonetheless, Zona was buried, with the cause of death listed first as "everlasting faint," and then simply "childbirth."

Shortly after Zona was buried, her mother Mary Jane reported that her daughter's ghost appeared to her, described what a cruel and otherwise shitty guy Erasmus was, and that he had broken her neck, killing her.  Mary Jane wen to the prosecutor, who had the body exhumed and a proper autopsy (such as those things were in 1897) done.  Sure enough, Zona's neck had been broken.

Erasmus was charged with murder and, at trial, Mary Jane was the main witness for the state.  In a clever bit of trial strategy, the prosecutor stayed away from the ghost stuff, but the defense attorney cross examined her about it anyway, allowing the jury to hear the story in all its glory.  Erasmus was convicted of murder and escaped a lynch mob, only to die in the Moundsville penitentiary a few years later.

Which just goes to show that woo, and its ability to seep into what should be deadly serious matters, knows no boundaries.  And it's pretty funny.

* The rules of evidence aren't necessarily based on modern psychological science or the evidence of fairly routine false confessions.