Expanding forfeiture without sacrificing confrontation after Crawford.

• Author: Deahl, Joshua

I love murder cases; you have one less witness to worry about.

--Murray Richman, defense lawyer (1)

TABLE OF CONTENTS

INTRODUCTION I. HOW CRAWFORD CALLS FOR A NEW APPROACH TO FORFEITURE II. EXPANDING FORFEITURE BEYOND WITNESS-TAMPERING CASES A. Three Applications of Forfeiture: Revealing a Trend 1. The Classic Case for Forfeiture 2. Reflexive Application of Forfeiture in Witness-Tampering Cases 3. A Broader Application of Reflexive Forfeiture B. An Evidentiary Explanation for the Discrepancies III. How EXPANSIVE FORFEITURE COULD BECOME AND SOME PROPOSED LIMITATIONS A. The New Approach to Forfeiture and Its Implications B. Two Suggested Limitations 1. A Narrow Interpretation of Unavailability 2. A Rule against the Bootstrapping of Testimony CONCLUSION INTRODUCTION

The central holding of Crawford v. Washington (2) is fairly straightforward: The Confrontation Clause (3) bars the admission of out-of-court testimonial statements unless the defendant had a prior opportunity to cross-examine the witness. (4) Crawford, however, has an often overlooked caveat. In renouncing numerous exceptions to the confrontation fight, the Court rejected only those that purport to test the reliability of testimonial statements. It left equitable exceptions undisturbed. As the Court pointed out, "[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds." (5)

The parameters of the rule of forfeiture are a matter of some dispute. As opposed to a waiver, which requires a knowing and intelligent relinquishment of a right, forfeiture occurs when an individual commits an act inconsistent with maintaining a right. (6) It has traditionally applied in witness-tampering cases, where a defendant intimidates, bribes or kills a witness just before she is scheduled to testify. In those situations, forfeiture should bar the defendant from successfully objecting to the admission of the witness's prior unconfronted testimony.

To illustrate, consider a defendant who is charged with running a large drug operation. (7) The day the prosecution's key witness is to testify, he is killed on the way to the courthouse. Luckily for the prosecutor, the witness already gave testimony implicating the defendant before a grand jury, and the prosecutor now seeks to admit it in lieu of the witness's in-court testimony. Let us assume that there is no question that the defendant played a role in killing the witness; he admits it. Nevertheless, he objects, "The Sixth Amendment grants me the right to confront this witness, and since I have not been afforded that right, this unconfronted testimony should be excluded." The rule of forfeiture prevents this objection from succeeding, since it was the defendant who caused the unavailability of the witness. As one authority explained, applying the rule of forfeiture effectively says to the defendant, "You have no valid complaint about the loss of a right that, as a natural and desired result of your own conduct, it is impossible to afford you." (8)

Before Crawford, only when a defendant acted to silence a witness to a prior crime would courts apply forfeiture. (9) The rule operated as a disincentive to keep organized crime affiliates from "knocking off' witnesses. (10) But as one judge succinctly put it, "Crawford heightens the importance of ... the rule of forfeiture by wrongdoing." (11) In the brief period of time since Crawford was decided, a number of courts have extended the rule's reach to instances where the wrongdoing that makes a witness unavailable is identical to the defendant's alleged crime, (12) while several courts have declined the invitation. (13) The California Supreme Court recently granted review to answer the question, "Does [forfeiture] apply where the alleged 'wrongdoing' is the same as the offense for which defendant was on trial?" (14) This has been referred to as applying forfeiture "reflexively," (15) and I will borrow the term throughout this Note.

A reflexive application of forfeiture occurs whenever a defendant is charged with the very act that allegedly made the witness unavailable. Consider a defendant (D) who is charged with murder. Just before death, the victim calmly told the police, "I would like to report that D inflicted this potentially fatal injury upon me." (16) The prosecutor may then seek to admit this testimony at D's murder trial--although D has not had the chance to confront the victim--on the grounds that D forfeited his confrontation right by killing the victim. Post-Crawford courts have been somewhat receptive to this rather innovative application of forfeiture. (17)

This extension of the rule would understandably be an unwelcome development for a number of jurists. One judge responded to suggestions that forfeiture ought to apply reflexively by saying, "It's almost frivolous to argue forfeiture in this case.... I wouldn't have given anybody five minutes to argue forfeiture." (18) Nevertheless, it may have been exactly what the Supreme Court intended when it mentioned the rule of forfeiture in Crawford and described it as an equitable principle. (19) After all, the only brief that mentioned forfeiture explicitly advocated this reflexive application of it. (20)

This Note argues that forfeiture ought to apply reflexively and that there is no principled way to limit the doctrine--as pre-Crawford courts had--to witness-tampering cases. Forfeiture should apply whenever a defendant's wrongdoing caused a witness's unavailability. Extending forfeiture in this way could drastically alter the way certain crimes are prosecuted. Unavailable victims who were intimidated by the crimes against them, such as domestic abuse victims, could have their prior unconfronted testimony admitted based on forfeiture findings.

Beyond revisiting the arguments in favor of the reflexive application of forfeiture, this Note adds a new layer of analysis. It requires looking at a hybrid case. It is different from the two hypotheticals described above insofar as it includes both witness tampering and reflexive application of forfeiture. The case I have in mind involves a witness coming forward to the police and reporting, "D is engaged in a large drug operation, and he threatened to kill me if I cooperated with the police." When the witness is subsequently killed, prosecutors seek to admit this statement against D, not in his trial for running the drug operation, but in his trial for murdering the witness. The reason for discussing this third type of case is that it requires the reflexive application of forfeiture--but even pre-Crawford courts were typically willing to apply forfeiture reflexively so long as it involved a fact pattern like this one. This suggests that courts are not opposed to applying forfeiture reflexively in any principled way. Instead, there is likely an alternative explanation that captures why courts are willing to apply forfeiture reflexively in witness-tampering cases but are reluctant to do so under other circumstances.

Part I of this Note sets the stage by briefly reviewing Crawford and its implications for the rule of forfeiture. Part II argues that forfeiture ought to apply reflexively and that the reason why courts are reluctant to apply it as such is not because of a principled objection to it, but for an alternative, purely evidentiary reason. That is, evidence of forfeiture's occurrence is likely to be particularly strong in witness-tampering cases. Part III considers the potentially vast ramifications of applying forfeiture so expansively, as it threatens to extinguish the right to confront critical witnesses in a variety of cases. Part III, therefore, also suggests some principled limitations to the rule. I argue that two limitations--a narrow interpretation of witness unavailability and a bar on bootstrapping testimonial evidence--should largely allay the concerns of jurists worried about the expansion of forfeiture. I conclude that while forfeiture should be substantially limited to protect the vitality of the Confrontation Clause, it should not be restricted to witness-tampering cases. After rejecting this limitation, which has needlessly preoccupied courts and commentators, we should expect more defensible constraints to develop.

1. HOW CRAWFORD CALLS FOR A NEW APPROACH TO FORFEITURE

   While Crawford largely revamped and clarified Confrontation Clause analysis, it also called the scope of forfeiture into question. This may come as a surprise, since the language of Crawford appears to have done nothing more than reaffirm the rule of forfeiture in passing. (21) It becomes necessary to review the changing face of the Confrontation Clause post-Crawford alongside the rule of forfeiture to understand how forfeiture is due for a makeover.

   Before Crawford, Ohio v. Roberts (22) provided the predominant framework for interpreting the Confrontation Clause. Under Roberts, the Confrontation Clause was concerned with all statements made by out-of-court declarants. (23) Noting, however, that confrontation was aimed at testing the reliability of these statements, a defendant's confrontation right could be satisfied if the witness was unavailable and the contested statement contained "adequate 'indicia of reliability.'" (24) These indicia were usually found within "firmly rooted hearsay exception[s]." (25) For example, one firmly rooted hearsay exception is the dying declaration, which allows the admission of hearsay statements in homicide prosecutions if they are "made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death." (26) The peculiar rationale for this exception is that "[n]o person who is immediately going into the presence of his Maker will do so with a lie upon his lips." (27)

   Crawford drastically altered this framework in two principal ways. First, it held that the Confrontation Clause...