Forfeiture by Wrongdoing After Crawford and Giles: An Effective Tool for Prosecutors with an Absent Victim at Trial.

• Date: 01 October 2018
• Author: Pappas, Evanthia A.

THE SIXTH AMENDMENT'S confrontation clause of the United States Constitution gives a defendant the right to cross-examine witnesses who offer testimony or make out-of-court testimonial statements against them. Depending on the defendant's actions and circumstances, however, that right may be revoked using the forfeiture by wrongdoing doctrine.

Forfeiture by wrongdoing is an exception to a defendant's Sixth Amendment confrontation right. The theory behind the doctrine is that a defendant should not profit from his or her own misconduct if the defendant is the reason the witness is unavailable. A defendant who wrongfully procures the absence of a witness cannot complain about his or her inability to cross-examine that witness. (1)

For example, if a defendant in a domestic violence case has murdered, or simply persuaded the victim not to attend a hearing, and yet is still permitted to invoke his or her confrontation right to exclude hearsay statements from the victim, it unfairly rewards that defendant for procuring the victim's absence.

When considering whether the forfeiture by wrongdoing doctrine is applicable, focus on the defendant's own misconduct. There is a difference between "waiver" and "forfeiture by wrongdoing." Waiver is "an intentional relinquishment or abandonment of a known right or privilege." (2) Forfeiture by wrongdoing "results in the loss of a right regardless of the defendant's knowledge thereof and irrespective of whether the defendant intended to relinquish the right." (3)

HISTORY OF THE DOCTRINE

In 1878, the U.S. Supreme Court adopted the forfeiture by wrongdoing doctrine in Reynolds v. United States, holding that "if a witness is kept away by the adverse party, his testimony, taken on a former trial between the same parties upon the same issues, may be given as evidence." (4) Thus, the Court in Reynolds maintained a broad view of the doctrine of forfeiture and did not depend on the defendant's purpose or motivation in keeping the witness away in order for the rule to apply. Reynolds relied on 17th and 19th century English and American cases discussing the historical application of the equitable principles of the common law doctrine of forfeiture, which recognize the maxim that a defendant may not complain about the inability to confront and cross-examine a witness whose absence is a result of the defendant's own wrongful act. (5)

Nevertheless, the forfeiture by wrongdoing doctrine remained essentially dormant for more than a century until Crawford v. Washington in 2004. (6) In Crawford, the U.S. Supreme Court held that the confrontation clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (7)

Since Crawford, there has been a resurgence in the application of the forfeiture by wrongdoing doctrine, and the U.S. Supreme Court has endeavored to explain how and under what circumstances it is applicable. Of significance to modern application of the doctrine, Crawford held that while firmly rooted hearsay exceptions or out-of-court testimonies do not necessarily satisfy a defendant's Sixth Amendment right to confrontation, the equitable principle of forfeiture by wrongdoing remains a valid exception to the confrontation clause. (8) The forfeiture by wrongdoing doctrine survives Crawford because it is based on the equitable consequences of the defendant's misconduct, not the reliability of a declarant's statements.

In 2006, the U.S. Supreme Court reinforced its acceptance of forfeiture by wrongdoing in Davis v. Washington, stating:

We reiterate what we said in Crawford: that "the rule of forfeiture by wrongdoing... extinguishes confrontation claims on essentially equitable grounds." [Citation.] That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. (9) Accordingly, Davis clarified that testimonial statements as defined in Crawford and its progeny do not affect the applicability of the forfeiture by wrongdoing doctrine. However, the Court provided no further guidelines for application of the doctrine or any standard of proof applicable to a finding of forfeiture by wrongdoing. The late Justice Antonin Scalia only referenced Federal Rules of Evidence section 804(b)(6), which codifies the forfeiture doctrine and "holds the Government to the preponderance-of-the evidence standard." (10)

DEVELOPING THE FORFEITURE BY WRONGDOING DOCTRINE

While the Court recognized the equitable principle of forfeiture by wrongdoing in Crawford, it gave no comprehensive guidelines as to what type of wrongdoing is sufficient to trigger application of the exception and thus prevent the defendant from asserting his or her Sixth Amendment confrontation clause right.

People v. Giles (Giles I)

In People v. Giles (Giles I) in 2007, the California Court of Appeal took a broad view of the forfeiture by wrongdoing doctrine, holding that it applied regardless of whether the defendant "intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable." (11) Therefore, applying the doctrine did not "hinge" on a defendant's "purpose or motivation in committing the wrongful act." (12)

In Giles I, the defendant was charged with murder of his former girlfriend and claimed it was self-defense. The trial court found admission of the victim's statement to the police after an earlier domestic violence incident did not violate the confrontation clause as defined by Crawford, finding Giles had forfeited his right to confrontation because (1) he committed the murder for which he was on trial, and (2) his intentional criminal act ultimately rendered the victim/witness unavailable to testify. The Court of Appeal affirmed and Giles appealed. The California Supreme Court granted Giles' petition for review to decide whether the Court of Appeal properly applied the forfeiture by wrongdoing doctrine and affirmed the lower court's decision.

Giles v. California (Giles II)

In 2008, the U.S. Supreme Court re-examined the application of forfeiture by wrongdoing in Giles II and granted review on the issue of the defendant's "intent." (13) Ultimately, the Court more narrowly construed the forfeiture by wrongdoing exception and its availability for use by prosecutors at trial.

On appeal, Giles claimed that he did not murder the victim for the purpose of rendering her unavailable as a witness, but rather in self-defense, which he claimed was essential for the forfeiture by wrongdoing doctrine to apply. The majority agreed with Giles and held that if a batterer kills his victim, he can still keep her past statement out of the trial pursuant to his right of confrontation, unless he intended to silence her testimony when he killed her.

In reviewing Giles I, the Court discussed that the defendant's actions causing the victim's absence at trial were undertaken for the purpose of preventing the witness from testifying. Thus, a defendant's intent must be examined when using the forfeiture by wrongdoing doctrine. (14)

In Giles II, the Court decided that the purpose or motive behind the defendant's wrongful act that caused the witness' unavailability was relevant and vacated the judgment, directing the state court to consider the defendant's intent on remand and to apply the exception only when a defendant is engaged in conduct designed to prevent the witness from testifying. (15) Notably, the Court made no decision on any requirement that the defendant's desire to silence the witness be the sole or primary motivation for his or her misconduct. Further, when considering whether a defendant has forfeited his or her confrontation rights, the Court declined to consider a defendant's intent to silence the victim.

Giles II did acknowledge that intent can be shown by a defendant's pattern of conduct before and during criminal proceedings, and that domestic violence is often about silencing the victim and preventing the abuse from being reported. A history of abuse is relevant as to whether the defendant intended to silence the victim sufficiently to forfeit his or her confrontation rights. (16) If it is for personal reasons, then the defendant has not forfeited his or her right to object to the introduction of the victim's prior testimonial statement.

However, while the Court re-affirmed its acceptance of the forfeiture by wrongdoing doctrine, it failed to clarify what constituted sufficient intent to trigger forfeiture by wrongdoing, remanding the issue to the state to re-analyze. It was not until 2009 that clear guidelines were established regarding intent in People v. Banos. (17)

THE IMPORTANCE OF BANOS AND APPLYING FORFEITURE BY WRONGDOING AFTER GILES II

The California Supreme Court has taken a broader view of the application of forfeiture by wrongdoing and has criticized the holding by the U.S. Supreme Court in Giles 77. The 2009 decision in People v. Banos is--in this author's opinion--directly on-point and instructive on the issue of when and how to apply the forfeiture by wrongdoing doctrine.

People v. Banos

In Banos, the defendant was convicted of second-degree murder of his ex-girlfriend, Cortez, and two counts of residential burglary. On April 11, 2004--nine days before a scheduled hearing on a restraining order violation--the defendant called the victim's apartment three times at approximately 3:00 a.m. The victim's new boyfriend hung up the first two times, but on the third, he gave the phone to the victim who stated that the defendant threatened to kill her. At about 4:00 a.m., the victim heard noises and saw the defendant climbing through a window. The victim's new boyfriend ran out the back door, and the defendant bludgeoned the victim with a hammer. When the police arrived, the defendant was kneeling by the body. He then got up and slammed the door on the police.

On appeal, the...