Rule 804(b) (6) - the illegitimate child of the failed liaison between the hearsay rule and confrontation clause.

• Author: Bocchino, Anthony J.

1. INTRODUCTION

   Federal Rule of Evidence 804(b)(6) (1) is a rule with a laudable purpose but a misperceived pedigree and a dangerous effect. Entitled "Forfeiture by Wrongdoing," the Rule purports to be the latest exception to the rule precluding hearsay. Unlike the other thirty hearsay exceptions, however, it admits out-of-court statements bearing no indicia of trustworthiness. (2) In fact, this hearsay exception is an unfocused sanction imposed on a party who intentionally makes a hearsay declarant unavailable. This sanction allows for the admission of any relevant statement made by the absent hearsay declarant irrespective of the trustworthiness of that statement. Moreover, the admission of such unreliable hearsay can provide the basis for a verdict and the imposition of the harshest criminal penalties or civil damages.

   The adverse effect of having cases decided on untrustworthy hearsay is facilitated by the operation of Rule 104, which permits the admission of such evidence on a minimal predicate showing that a party has procured the hearsay declarant's unavailability. When making the determination as to whether a party has procured a hearsay declarant's unavailability by wrongdoing, the trial judge need only find that a reasonable juror could find the wrongdoing by a preponderance of the evidence. (3) Such finding may be based on entirely inadmissible evidence. (4)

   The combination of the unreliability of FRE 804(b)(6) evidence, the fact that FRE 804 does not require any indicia of the reliability, combined with the low quantum of proof required by FRE 104 allows the liberty and property interests of parties to be decided by evidence that may very well be untrustworthy. As a result we will argue that the policy of FRE 804(b)(6) is unwise and contrary to the truth-seeking function of the criminal and civil trial because it allows the introduction of evidence which hundreds of years of Anglo-American legal experience have shown to be unreliable. Indeed, though not reaching the constitutional Due Process question, the Supreme Court noted in Bridges v. Wixon that "allow[ing] men to be convicted on un-sworn testimony of witnesses ... [is] a practice which runs counter to the notions of fairness on which our legal system is founded." (5)

   This article argues that the "Forfeiture by Wrongdoing" exception to the hearsay rule is utterly lacking in any of the traditional indicia of trustworthiness, which are the universal hallmark of all admissible hearsay evidence pursuant to the Federal Rules of Evidence. (6) Further, we take the position that this rule is an unnecessary systemic check against civil and criminal litigants who intentionally subvert the justice system by procuring the unavailability of witnesses by wrongdoing. Other sanctioning mechanisms which do not allow criminal and civil justice decisions be influenced or determined by untrustworthy evidence exist and are better tailored to the deterrence and punishment functions purportedly performed by Rule 804(b)(6).

   Part II of this article will examine the historical underpinnings of the law of hearsay and its exceptions, and the sometimes overlapping, but different, right to confront one's accusers in a criminal case as governed by the Sixth Amendment to the United States Constitution. (7) Although the forfeiture doctrine made its way into hearsay law by an imperfect and uncritical, though superficially appealing, analogy to the Confrontation Clause forfeiture doctrine, the Supreme Court's recent decoupling of any relationship between the Confrontation Clause and the hearsay rule (8) makes clear that the analogy was inappropriate. We will conclude, based in part on this Supreme Court analysis, that the determination of whether a criminal defendant can cross-examine a hearsay declarant or forfeits that right by misconduct in no way insures the reliability of hearsay evidence so as to make it admissible in criminal cases. Of course, the Confrontation Clause is inoperative in civil cases and provides no hearsay referent in civil cases. We will take the position that once Con frontation Clause rights, and the reliability of some hearsay, are recognized as separate concepts, Rule 804(b)(6) is an exception that fails to accomplish the indispensable function of the hearsay rule (and its exceptions) in keeping from the jury evidence which bears no imprint or even suggestion of reliability. As currently constructed, Rule 804(b)(6) should be eliminated.

   Part III will illustrate the current operation of FRE 804(b)(6) by tracing two hypothetical situations, one civil and one criminal, which demonstrate the over-breadth of the exception as a means of punishing wrongdoers who intentionally procure the unavailability of witnesses. We will question whether the sanctioning effect of the rule makes sense in the federal rules scheme for admitting and excluding evidence by examining the effect of this unique "exception" on the reliability of verdicts.

   Part IV will enumerate the alternatives for sanctioning these unavailability-inducing wrongdoers which currently exist in the criminal and civil justice system and argue that these sanctions are better tailored to remedy the wrong. We will conclude that Rule 804(b)(6) over-reaches in its zeal to punish these wrongdoers. The current construction of Rule 804 (b)(6), which allows the admissibility of potentially untrustworthy evidence takes the place of and supersedes other methods, better designed and more effectively focused, in which conduct that triggers the sanction of the rule can be more appropriately dealt with in both the civil and criminal justice systems. We will conclude that Federal Rule 804(b)(6) should be repealed.

2. HEARSAY RULE AND THE FORFEITURE EXCEPTION

   1. Brief History of Hearsay, Its Exceptions and Cross-Examination

      The Federal Rules of Evidence define hearsay as an out-of-court written or oral statement which is offered to prove the content of the statement at trial. (9) Generally, even the offer of hearsay by a witness who is reporting in court her own out-of-court statement is inadmissible. (10) Hearsay is inadmissible, in part, on the theory that it is not cross-examined at the time it is uttered. (11) Hearsay simply does not meet the testimonial ideal of American justice: in-court testimony by a witness of her first-hand, out-of-court observations followed immediately by at least the opportunity for a partisan cross-examination.

      In the Anglo-American world, cross-examination is considered to be critical to the fact-finder's ability to accurately assess the credibility of the witness and the weight to be given to that witness's testimony. (12) A witness's ability to perceive, remember, and narrate events observed in the outside world, (13) and the witness's reasons or propensities to be either truthful or untruthful in giving testimony, (14) are considered indispensable aids to the fact-finder's performance of its function. Through cross-examination, counsel has the ability to both impeach the credibility of the witness's direct examination testimony as well as draw out qualifying circumstances which limit or contextualize the testimony. In addition, all of this examination is done in the presence of the fact-finder who can evaluate the demeanor and the manner in which testimony is provided in determining the weight, if any, to be given to the testimony of any witness. (15)

      It is, of course, the weighing of the credibility of conflicting witnesses, taken together with a consideration of exhibits, which usually determines the outcome of cases litigated through trial. Because American justice, the most pristine remaining exemplar of the adversarial system, is committed to limiting evidence to that information gathered by the parties and presented in a single trial through courtroom exhibits and witnesses, cross-examination and the concomitant exclusion of hearsay (i.e., un-cross-examined evidence) are critical to our system of criminal and civil justice, particularly when the case is presented to a jury. (16)

      Prior to the Sixteenth Century, the above-described trial system did not exist in America. As in England at the time, American jurors obtained the facts of the case not from witnesses who testified at trial but rather through their own individual knowledge and investigations of the events and the parties in question. (17) Indeed, jurors drawn from the locale of the litigated events usually had pre-existing knowledge of the parties and incidents involved and were permitted to use such information in reaching their verdicts. (18) During this period, consideration of the hearsay nature of information was of little concern. (19) By the 1500's, however, jury trials began to resemble the trials of today (20) and juries began to acquire their information from courtroom witnesses rather than their own personal knowledge and independent research. (21) As jurors became obligated to rely on the testimony of witnesses at trial, courts became more fastidious concerning the reliability of the evidence jurors could consider; (22) and cross-examination became the means to provide jurors with the information necessary to evaluate witness credibility and the reliability of the evidence they offered. (23) The fact that hearsay--unlike in-court testimony--was not cross-examined when uttered raised doubts about its reliability and made its admission suspect. (24) By the 1600's hearsay was routinely the subject of objection at trial, and by the 1700's a general doctrine excluding the admission of hearsay from evidence at trial was firmly established. (25) This doctrine is codified in rules 801 and 802 of the Federal Rules of Evidence. (26)

      As long as there has been a rule precluding hearsay from trial evidence, there have been exceptions to the rule. (27) Although the rule against hearsay places a premium on excluding from evidence statements that cannot be tested by cross-examination, there has always been the...