The Forfeiture by Wrongdoing Doctrine - July 2006 - Evidence
| Publication year | 2006 |
| Pages | 77 |
2006, July, Pg. 77. The Forfeiture by Wrongdoing Doctrine - July 2006 - Evidence
July 2006
Vol. 35, No. 7 [Page 77]
Evidence
The Forfeiture by Wrongdoing Doctrine
by Elizabeth Harris
Those interested in submitting an article for publication in the Evidence column should contact the editor, Lawrence M. Zavadil, at (303) 389-4644 or lzavadil@jcfkk.com.
This month's article was written by Elizabeth L. Harris, Denver, an associate with the law firm of Jacobs Chase Frick Kleinkopf & Kelley, LLC - eharris@jcfkk.com.
Q: To invoke the forfeiture by wrongdoing doctrine, is it necessary to establish that the defendant intended to procure the unavailability of the witness?
A: Yes, in federal courts in Colorado; the answer appears to be no in Colorado state courts.
Assumed Facts
Freddy, David, and Barry are members of a large-scale drug conspiracy in the Pueblo area. Freddy arranges a routine purchase from Carl, a drug supplier, but the meeting goes sour when Freddy questions the quality of Carl's cocaine. Freddy retrieves the gun he always carries to drug buys and shoots Carl.
Though seriously wounded, Carl manages to run to a nearby convenience store where a clerk calls the police and an ambulance. A police officer questions Carl on the way to the hospital. Carl admits that he is a regular supplier of a drug ring involving Freddy, David, and Barry, and identifies Freddy as the person who shot him. Carl dies before the ambulance arrives at the hospital.(fn1)
Carl's murder prompts an investigation into the Pueblo drug conspiracy. Freddy, David, and Barry ultimately are charged with conspiracy to distribute cocaine. At trial, the government moves to admit Carl's statements to the police officer pursuant to the forfeiture by wrongdoing doctrine, on the ground that the defendants wrongfully procured Carl's unavailability. Are Carl's statements admissible against Freddy? Against David and Barry?
Discussion
The forfeiture by wrongdoing doctrine was first articulated by the U.S. Supreme Court in Reynolds v. United States.(fn2) In Reynolds, police attempted to serve defendant's wife with a subpoena to testify against him at a bigamy trial, but defendant refused to reveal her whereabouts. The trial court concluded that defendant had procured the wife's unavailability and admitted her testimony from a prior bigamy trial as evidence against defendant.(fn3) On appeal, defendant argued he was denied his right to confrontation by the admission of his wife's prior testimony. The Court disagreed, holding that "if a witness is absent by [defendant's] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away."(fn4)
By the end of the 1970s, most federal courts - including...
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