One Doesn’t Have to Guess About an Accused’s Intent When He Tells One What It Is
By Ken K. Gourdin
See this story in the Deseret News (last accessed January 7, 2015): http://www.deseretnews.com/article/865618991/Man-may-have-fired-shots-while-fleeing-officers-police-say.html. Notwithstanding all of the unpleasant things about dealing with criminals, one of the nice things about doing so is that they can be so transparent: sometimes, prosecutors don’t have to guess what they’re thinking and, in turn, to guess about what charges to file as a result. Sometimes, prosecutors in situations similar to this one scratch their chins and muse, “Should I charge him with aggravated assault or with attempted murder? Gee, that’s a toughie. Should I give him a break or not?”
Not so here. Since he’s made it clear that there was no question about his intent (the only question being about his ability to effectuate that intent—that is to say, from his perspective, his only problem was his bad aim), this clearly seems, based on what has come directly from the suspect’s own mouth, to be a case of attempted murder (perhaps even two counts, depending on the circumstances under which each shot was fired). And while I’m not a lawyer, I don’t think there will be any problem vis-a-vis the hearsay rule getting a judge to admit this statement in court; arguably, it’s admissible under either of two hearsay exceptions: (1) statement against penal interest; and (2) statement of intent.