§ 34.06 FORFEITURE BY WRONGDOING: FRE 804(B)(6)

• Jurisdiction: United States

§ 34.06. FORFEITURE BY WRONGDOING: FRE 804(b)(6)

In 1997, a new subsection was added to Rule 804(b) for statements offered against a party who causes the unavailability of the declarant by wrongdoing — e.g., killing or scaring a witness.⁹⁹ "The forfeiture principle . . . is designed to prevent a defendant from thwarting the normal operation of the criminal justice system."¹⁰⁰

The rule applies when a party "wrongfully caused — or acquiesced in wrongfully causing — the declarant's unavailability as a witness, and did so intending that result." Tacit assent is sufficient.¹⁰¹

There is no subject matter limitation, restricting the exception to the case in which the declarant planned to testify. In other words, if a defendant kills a witness because that witness was to testify about the defendant's role in a bank robbery, the witness's hearsay statements are admissible against the defendant in the trial for the witness's murder as well as in the robbery.¹⁰²

In United States v. Cherry,¹⁰³ the Tenth Circuit held that if a murder is reasonably foreseeable to a conspirator and within the scope and in furtherance of the conspiracy, the conspirator waives his right to confront that witness just as if he had killed the witness himself.¹⁰⁴

The preponderance-of-evidence standard applies in federal practice.¹⁰⁵ Some states apply a clear and convincing evidence standard.¹⁰⁶ The Confrontation Clause also recognizes a forfeiture rule, under which an intent to procure the declarant's unavailability (e.g., witness tampering) is also required.¹⁰⁷

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Notes:

^[99] See generally Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982); Comment, The Admission of Hearsay Evidence Where Defendant Misconduct Causes the Unavailability of a Prosecution Witness, 43 Am. U. L. Rev. 995 (1994).

^[100] United States v. White, 116 F.3d 903, 912 (D.C. Cir. 1997) (informant murdered; eyewitnesses identified several of the defendants).

^[101] See United States v. Rivera, 412 F.3d 562, 567 (4th Cir. 2005) (defendant incarcerated at time declarant murdered; A "defendant need only tacitly assent to wrongdoing in order to trigger the Rule's applicability. Active participation or engagement, or, as Rivera would have it, the personal commission of the crime, is not required."). See also Commonwealth v. Edwards, 830 N.E.2d 158 (Mass. 2005) ("While no court has expressly applied the doctrine to 'collusion,' no court has rejected such a broad application either."; "The public policy interests underlying...