Forfeiture by Wrongdoing

Forfeiture by Wrongdoing

The Crawford rule covered above is close to absolute: a testimonial statement by an absent declarant stays out unless the declarant is unavailable and the defendant had an earlier opportunity to cross-examine, and it makes no difference that a hearsay exception would otherwise admit the statement.¹ The Court has nonetheless recognized limits that rest on history rather than on reliability, and the one with the widest practical reach is forfeiture by wrongdoing. A defendant who wrongfully keeps a witness from testifying loses the right to object that the witness's out-of-court statements were admitted without confrontation.² The Court has described that loss as an implied waiver of the right by the accused.³ Two reasons support the rule. The Clause gives the accused a chance to test an accuser before the jury, and a defendant who removes the accuser has used up that chance himself, so he cannot say it was taken from him. The rule also removes an incentive: if silencing a witness left that witness's earlier accusation inadmissible, intimidation or murder would be the surest way to defeat a prosecution, and forfeiture takes that payoff away at its source.

The doctrine's foundation is Reynolds v. United States, an 1878 decision in which the Court allowed a witness's testimony from a former trial of the same offense, given under another indictment, to be used after the trial court found that she was absent through the defendant's own doing.⁴ The Court reasoned that the Constitution gives the accused the privilege of being confronted with the witnesses against him but does not shield him from the consequences of his own wrongful acts, so when he keeps a witness away, competent evidence may supply her place.⁵ That reasoning rests on the maxim that no one may take advantage of his own wrong, and the Court traced the practice to English law reaching back to Lord Morley's Case in 1666, where the House of Lords accepted that the examination of an absent witness could be read if the prisoner had procured the absence.⁶ Whether the defendant procured the absence is a question of fact that the trial court settles as a preliminary matter before the substitute evidence is admitted, and Reynolds treated that finding like a jury verdict, to be disturbed only for manifest error.⁷

Reynolds speaks of wrongful procurement, and the later decision in Giles fixes how much purpose that phrase demands. In Giles v. California the defendant killed his former girlfriend, and the prosecution offered her earlier complaint to police alleging abuse by him; California's high court had held that the killing forfeited his confrontation objection.⁸ The Supreme Court confirmed that the exception reaches a defendant who intentionally made the declarant unavailable, meaning one whose wrongdoing was intended to prevent the declarant from testifying, and the bare fact that he killed the declarant is not enough.⁹ The single variable, then, is intent to prevent testimony, and the reason follows from why forfeiture exists. The doctrine rests on the defendant's own interference with the confrontation process, so the wrong has to be aimed at that process. A defendant who kills for a reason unconnected with any prospective testimony has committed a grave crime but has not turned the trial's own machinery to his advantage. If causing the absence were enough, the Clause would lapse in every homicide prosecution where the victim had earlier spoken to police, which is exactly where an untested accusation carries the most force. The conduct must also work: the cases speak of wrongdoing intended to render the declarant unavailable and that did render the declarant unavailable.

Killing is the dramatic case, but the wrongdoing can take other forms, including threats and coercion directed at keeping a witness from testifying.¹⁰ The hearsay rules point the same way, because Rule 804(b)(6) reaches the statements of a witness whom the defendant wrongfully and intentionally prevented from testifying.¹¹ The related provision on wrongful procurement of unavailability is also built around a specific purpose of keeping the declarant from attending or testifying.¹² Once a court finds wrongdoing that was intended to produce, and did produce, the declarant's absence, the defendant can invoke neither the hearsay rule nor the Clause against the statement.

Forfeiture is not the only historical carve-out, and it helps to keep the second one separate. Dying declarations have long been treated as consistent with the Clause because eighteenth-century courts saw no confrontation problem in admitting them, and the Court has said so repeatedly.¹³ Crawford itself mentioned the point only in a footnote and left open whether a testimonial dying declaration, such as a formal police interrogation of a dying person, would qualify.¹⁴ The two doctrines ask different questions. A dying declaration turns on the declarant's circumstances, namely a belief that death was imminent and a statement about its cause or circumstances. Forfeiture turns entirely on the defendant's conduct.

The step students most often miscarry is the last. Students lose this issue when they treat killing the declarant as enough, because the fact that the defendant caused the declarant's death or absence says nothing about why he did it, and only a purpose of preventing testimony turns the wrongdoing into forfeiture.¹⁶ The court must find the intent and the resulting unavailability as preliminary facts, and without those findings the ordinary Crawford rule applies and the statement stays out.¹⁷ That completes the part of this chapter concerned with the witnesses against the accused. The next section turns to the accused himself and to the rules that govern his presence in the courtroom.