Forfeiture by Wrongdoing: a Panacea for Victimless Domestic Violence Prosecutions

• Publication year: 2022

39 Creighton L. Rev. 441. FORFEITURE BY WRONGDOING: A PANACEA FOR VICTIMLESS DOMESTIC VIOLENCE PROSECUTIONS

Creighton Law Review

Vol. 39

ANDREW KING-RIES(fn*)

I. INTRODUCTION

The United States Supreme Court's decision in Crawford v. Washington(fn1) dramatically impacted the domestic violence community.(fn2) In Crawford, the Court reasserted the supremacy of the Confrontation Clause over the evidentiary rules pertaining to hearsay.(fn3) In addition, the Court established the rule that testimonial hearsay statements of witnesses will only be admissible if subjected to the opportunity for cross-examination.(fn4) The Crawford decision has the potential to destroy prosecutors' abilities to use victimless domestic violence prosecutions to combat domestic violence.(fn5) Of recent vintage, victimless prosecution is a highly effective tool against domestic violence, precisely because a victim's statements, admitted through hearsay exceptions, allow the State to proceed even when the victim is unable to participate in the prosecution.(fn6)

The Court's decision in Crawford threw victimless prosecutions into uncertainty, largely due to the Court's refusal to determine whether traditional excited utterances, present sense impressions, and statements to medical personnel constitute "testimonial" statements.(fn7) This uncertainty surrounding the heart, and thus the future, of victimless prosecutions has sparked considerable discussion as to how best to respond to Crawford.(fn8) Some of this discussion has focused on the rule of forfeiture by wrongdoing.(fn9) Although incidental to its holding and discussion, the Crawford Court expressly recognized the rule of forfeiture by wrongdoing as an exception to the Confrontation Clause.(fn10) This rule is an exception to the Confrontation Clause rules so potentially devastating to victimless domestic violence prosecutions. Under forfeiture by wrongdoing - codified as Federal Rule of Evidence 804(b)(6) - the defendant forfeits his right to confront a witness against him when he engages in conduct that makes it "impossible or infeasible for the witness" to testify at the trial.(fn11) The Crawford Court recognized that the rule of forfeiture by wrongdoing "extinguishes Confrontation claims on essentially equitable grounds."(fn12)

Many defendants charged with crimes of domestic violence engage in wrongdoing designed to make it impossible for their victims to testify against them.(fn13) Through threats, intimidation, financial control, and violence, domestic violence defendants prevent victims from testifying in a significant number of domestic violence prosecutions.(fn14) In fact, it was the success of these efforts - preventing victims from participating in prosecutions - that spawned the victimless prosecution in the first instance.(fn15) Ironically, Crawford may have placed victimless prosecutions in jeopardy and provided the solution at the same time.(fn16)

In this Article, I explore whether the rule of forfeiture by wrongdoing is the post-Crawford panacea for victimless domestic violence prosecutions. In Section II, I briefly discuss the Crawford decision and the revitalization of the Confrontation Clause. I also highlight Crawford's recognition of the rule of forfeiture by wrongdoing and the traditional concept of forfeiture by wrongdoing. In Section III, I present difficulties with the rule of forfeiture by wrongdoing in the domestic violence context. In section IV, I propose solutions to these difficulties along with additional requirements that are necessary when applying the rule in domestic violence cases being tried without the victim testifying in court.

Specifically, I propose that, when the victim refuses to testify, the prosecution be required to meet two procedural safeguards. First, the State must establish by a preponderance of the evidence the wrongdoing creating the forfeiture by demonstrating either (1) specific evidence of threats if the victim were to report the violence to authorities or testify at trial or (2) the existence of a battering relationship built on power and control dynamics.(fn17) Second, after establishing the wrongdoing creating the forfeiture, the statements the State seeks to introduce from the absent victim must satisfy a reliability determination, essentially a hearsay exception or other indicia of reliability.(fn18) In this way, I suggest that the criminal justice system can strike the appropriate balance between preserving the critical tool of victimless domestic violence prosecutions and maintaining confidence in verdicts reached in those prosecutions.

II. CRAWFORD V. WASHINGTON AND THE REVITALIZATION OF THE CONFRONTATION CLAUSE

In Crawford v. Washington, the Supreme Court dramatically revitalized the Confrontation Clause and restored it to a place of prominence in criminal prosecutions.(fn19) For the twenty-four years prior to Crawford, starting with Ohio v. Roberts,(fn20) the Supreme Court had largely collapsed the Confrontation Clause into the hearsay rules.(fn21) The Crawford Court separated the Confrontation Clause from the rules regarding hearsay and elevated a Confrontation Clause analysis above a hearsay analysis.(fn22)

In Ohio v. Roberts, the Court held that statements of unavailable witnesses could be admitted at trial - and satisfy the Confrontation Clause - if they were reliable.(fn23) According to the Court, statements were reliable if they either met a "firmly rooted hearsay exception" or had "particularized guarantees of trustworthiness."(fn24) The "firmly rooted hearsay exception" largely became synonymous with portions of Rules 803(fn25) and 804(fn26) of the Federal Rules of Evidence.(fn27) The "particular guarantees of trustworthiness" issue was largely equated with the residual hearsay exception codified as Rule 807(fn28) of the Federal Rules of Evidence. In essence, the Court found that the Confrontation Clause posed no additional obstacle to the admission of an out-of-court statement by an unavailable witness other than the satisfaction of particular hearsay rules.(fn29) For twenty-four years, the Ohio v. Roberts test governed the admissibility of statements from witnesses who did not testify at trial.(fn30)

Many in the academic and legal community criticized the Ohio v. Roberts decision.(fn31) The criticism largely focused on three areas. First, commentators found difficult the Court's equating a portion of the Constitution with statutory evidentiary rules.(fn32) Second, many commentators and courts struggled with the uncertainty surrounding the Roberts test, especially the "particular guarantees of trustworthiness" portion.(fn33) Courts often reached divergent results on the same facts; circuits split on the weight and significance of various factors in assessing reliability.(fn34) Finally, critics contended that the Roberts test was both overbroad and underinclusive.(fn35) As to overbreadth, commentators argued that the test's grounding in the hearsay rules meant every hearsay statement implicated the Confrontation Clause, even when the particular hearsay statement did not raise a core confrontation concern.(fn36) Regarding underinclusiveness, many raised the concern that admitting statements on a finding of reliability did not adequately protect the central issue of confrontation of witnesses.(fn37) Despite this criticism, the Supreme Court did not readdress the Roberts test until Crawford v. Washington.(fn38)

In Crawford, the Supreme Court was confronted with a case that highlighted most of the difficulties with the Roberts test. In the summer of 1999, Sylvia Crawford, the defendant's wife, led the defendant to the residence of Kenneth Lee.(fn39) The defendant accused Lee of attempting to rape Sylvia.(fn40) During the ensuing altercation - witnessed by Sylvia - the defendant stabbed Lee.(fn41) The State charged Crawford with assaulting Lee,(fn42) and he argued self-defense.(fn43) When the prose-cution subpoenaed his wife, the defendant invoked his marital privilege and precluded Sylvia from testifying in court.(fn44) The prosecution sought to admit the custodial tape-recorded statement Sylvia gave to the police implicating the defendant.(fn45) Applying the Roberts test, the trial court found that the tape-recorded statement did not satisfy a firmly rooted hearsay exception.(fn46) Rather, the trial court admitted the taped statement after determining that it had "particular guarantees of trustworthiness."(fn47) The trial court found the statement was trustworthy for several reasons: the statement corroborated Crawford's self-defense, Sylvia was an eyewitness to the assault, she described recent events, and she was questioned by a "neutral" police officer.(fn48)

The Washington Court of Appeals, in a two-to-one decision, reached a contrary conclusion as to the trustworthiness of Sylvia's statement.(fn49) The Appellate Court applied a nine-part test to determine "particular guarantees of trustworthiness": (1) whether the declarant, at the time of making the statement, had an apparent motive to lie; (2) whether the declarant's general character suggests trustworthiness; (3) whether more than one person heard the statement; (4) the spontaneity of the statement; (5) whether trustworthiness is suggested from the timing of the statement and the relationship between the declarant and the witness; (6) whether the statement contains express assertions of past...