Forfeiture by Wrongdoing: Turning the Tables on Witness Intimidation.

• Author: Steward, Joshua P.

WITNESS INTIMIDATION, once just a common trope in mob movies, made the jump from Hollywood to the courtroom with the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004). Prior to Crawford, a prosecutor could admit hearsay evidence against a defendant, without ever putting the declarant on the stand, so long as that evidence either fell "within a firmly rooted hearsay exception or [bore] particularized guarantees of trustworthiness." In overturning Crawford's conviction, the Supreme Court breathed new life into the Constitution's guarantee that every defendant shall have the right to confront the witnesses against him. Post-Crawford, this means that a defendant must have a meaningful right to cross-examine the witnesses in his case. What most now agree is a correct interpretation of the Confrontation Clause became, unfortunately, an ace up the sleeve for many defendants.

When the evidence is against him and conviction seems a certainty, a less-than-honest defendant merely needs to ensure that the complaining witness recants, "forgets", or doesn't show up to court at all. This is especially problematic in cases involving a particularly vulnerable victim, such as a child or battered spouse. In domestic cases, we prosecutors will never have the access to or influence over the victim that the defendant has spent years cultivating. So what are we to do when the defendant turns the rules of the justice system against justice itself?

Fortunately, the Crawford Court, while empowering some supremely dishonest defendants, provided them with the rope to hang themselves. Tucked into the Court's analysis is an acknowledgment that forfeiture by wrongdoing is a valid doctrine that "extinguishes confrontation claims on essentially equitable grounds." Four years later, in Giles v. California, 554 U.S. 353 (2008), the Supreme Court went further and acknowledged that forfeiture by wrongdoing does not merely extinguish confrontation arguments; it serves as an exception to the rule against hearsay.

SO WHAT IS FORFEITURE BY WRONGDOING?

Rule 804(b)(6) of the Federal Rules of Evidence practically defines forfeiture by wrongdoing as a "statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result." Many states' rules of evidence closely mirror the federal rules, but not all include such an explicit definition and hearsay...