Preliminarily Guilty? Reflexive Confrontation Forfeiture

JurisdictionUnited States,Federal
CitationVol. 50
Publication year2022



Tim Donaldson(fn*)


A criminal defendant forfeits the constitutional right to confront a witness if the defendant purposefully prevents the witness from testifying at trial.(fn1) The rule "is applicable to a missing witness's statements even in a trial for murdering that witness . . . ."(fn2) The application of the rule in these types of cases has been referred to as reflexive forfeiture.(fn3) In such cases, the alleged misconduct causing confrontation forfeiture is the same underlying act for which a defendant is criminally charged.(fn4) This creates a potential conundrum because the doctrine applies only if the trial judge makes "a preliminary finding of fact that the defendant's wrongful conduct prevented the witness's testimony."(fn5) In other words, a trial judge inescapably must make a preliminary determination regarding a defendant's ultimate guilt whenever reflexive confrontation forfeiture is at issue.(fn6)

Requiring a judge to decide "the very question for which the defendant is on trial may seem, at first glance, troublesome."(fn7) It may be argued that reflexive forfeiture creates a circular trap. "Anytime a set of unconfronted, extrajudicial statements tend both to incriminate the defendant and establish grounds for forfeiture, that defendant could lose any opportunity to challenge their accuracy and truthfulness through cross-examination."(fn8) A majority of courts have nonetheless resolved that a court may make a preliminary finding for purposes of confrontation forfeiture even though a jury will ultimately decide the same issue when reaching its verdict.(fn9) Comments made by a plurality in Giles v. California(fn10) indicate that the United States Supreme Court likely accepts the majority rule. Justice Scalia wrote in a footnote in which he was joined by three other justices that:

We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt-when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony.(fn11)

Justice Breyer expressed apparent approval of this proposition in his dissenting opinion in which two other justices joined, writing that "[w]e have previously said that courts may make preliminary findings of this kind . . . . And even the plurality is forced to admit that it is 'sometimes' necessary for a 'judge . . . to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling.'"(fn12)

A minority of courts have strongly disagreed. Federal District Court Judge Gerald Lee refused to allow reflexive forfeiture in United States v. Lentz,(fn13) explaining:

In this case for which Defendant is being tried under well settled Constitutional principles, Defendant is presumed to be innocent until proven guilty. To hold otherwise would be to deprive a defendant of his right to a jury trial and allow for a judge to preliminarily convict a defendant of the crime on which he was charged.(fn14)

Washington State Supreme Court Justice Richard Sanders expressed those same concerns in State v. Mason,(fn15) concluding that "[i]t makes no sense for the evidentiary rules of trial to depend upon the court's pretrial determination of the defendant's guilt or innocence."(fn16) Sanders wrote that reflexive forfeiture illogically invades upon the province of the jury by forcing a judge to determine a defendant's guilt prior to trial.(fn17) Washington Supreme Court Chief Justice Gerry Alexander agreed with Justice Sanders that "the doctrine should be eschewed" when the alleged conduct that rendered a victim/witness unavailable forms the basis for the charge against a defendant.(fn18) Justice Alexander wrote that "[f]or a trial court to determine, during the trial, that the defendant has committed the charged crime, albeit by a standard less than 'beyond a reasonable doubt,' is offensive to the presumption of innocence that must prevail throughout the trial."(fn19)

These concerns find some support in Giles. Justice Scalia wrote for the plurality in Giles that it was satisfied that the purpose requirement adopted by the majority avoided unconstitutional infringement upon a defendant's right to a jury trial.(fn20) However, the plurality also indicated that it would be "repugnant to our constitutional system of trial by jury" if judges were generally allowed based upon preliminary evidentiary rulings to strip a person of "the right to have his guilt in a criminal proceeding determined by a jury, and on the basis of evidence the Constitution deems reliable and admissible."(fn21)

This article examines the constitutionality of reflexive forfeiture.


Tony Emery was convicted in the United States District Court for the Western District of Missouri of killing Elkins, a federal informant, based in part on out-of-court statements made by the informant.(fn22) Emery contended on appeal that principles of forfeiture-by-wrongdoing "should apply only in a trial on the underlying crimes about which he feared Ms. Elkins would testify, not in a trial for murdering her."(fn23) The United States Court of Appeals for the Eighth Circuit rejected that argument, explaining that:

The rule contains no limitation on the subject matter of the statements that it exempts from the prohibition on hearsay evidence. Instead, it establishes the general proposition that a defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness. Accepting Mr. Emery's position would allow him to do just that.(fn24)

Reginald Meeks argued in the appeal of his conviction for murdering James Green that the trial court erred by admitting Green's statement to police that "Meeks shot me."(fn25) The Kansas Supreme Court held in State v. Meeks(fn26) that reflexive forfeiture posed no problem, writing:

If the trial court determines as a threshold matter that the reason the victim cannot testify at trial is that the accused murdered her, then the accused should be deemed to have forfeited the confrontation right, even though the act with which the accused is charged is the same as the one by which he allegedly rendered the witness unavailable.(fn27)

Angela Johnson argued during her prosecution for murder that the forfeiture-by-wrongdoing doctrine admits only statements unrelated to the conduct for which a defendant is on trial, "or there would be a 'murder victim's' hearsay exception."(fn28) Judge Bennett of the United States District Court for the Northern District of Iowa held the doctrine contains no such limitation and applies even in a trial for murder of a witness, and "not just in a trial for the underlying crimes about which the defendant allegedly feared that the missing witness would testify."(fn29) Judge Bennett similarly held during the prosecution of Johnson's accomplice that the forfeiture-by-wrongdoing rule contains no subject matter limitation.(fn30)

The Wisconsin Supreme Court explained in State v. Jensen(fn31) that the coincidence between the wrongful conduct causing the unavailability of a witness and the elements of the crime charged is immaterial to forfeiture analysis.(fn32) The court noted that the identity between a victim and a declarant should not have any bearing on confrontation forfeiture.(fn33) The court explained that compelling public policy interests warrant broad application of the doctrine.(fn34) Therefore, the court concluded that the forfeiture-by-wrongdoing rule contains no limitation on the subject matter of the statements that may be admitted thereunder and that forfeiture may apply even when a defendant is on trial for murdering the witness whose out-of-court statements are offered into evidence.(fn35)

Sheng Vang was found dead on July 18, 2004, and her estranged husband, Moua Her, was charged with murder.(fn36) Moua Her appealed the admission during trial of statements made by Vang about prior incidents of domestic abuse and argued that his constitutional right to confront witnesses had been violated.(fn37) The Minnesota Supreme Court held in State v. Moua Her(fn38) that confrontation forfeiture should be handled like any other admissibility question and rejected Her's argument that reflexive forfeiture violates a criminal defendant's presumption of innocence, writing:

At oral argument, Her argued that application of the forfeiture-by-wrongdoing doctrine in this way undermines his presumption of innocence. The applicability of the doctrine depends on a finding that Her was responsible for Vang's death. But Her contends that no determination can be made that he was responsible for Vang's absence until the jury has found him guilty of the murder. This argument does not preclude application of the doctrine here. In cases where the forfeiture-by-wrongdoing doctrine is at issue, the district court should resolve the matter consistent with its obligations to make determinations on the admissibility of evidence.(fn39)

Moua Her was remanded following the United States Supreme Court's decision in Giles v. California(fn40) to consider whether Her killed Vang with the intent of preventing her from testifying against him.(fn41)...

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