Here's a post I meant to put up several weeks ago:
The Washington Supreme Court has joined the minority of courts that have adopted an elevated standard of proof that a defendant engaged in the wrongful conduct that rendered a potential witness unavailable. In State v. Mason, 2007 WL 2051541 (Wash. Jul. 19, 2007), the court held that “in deciding whether to apply the doctrine of forfeiture by wrongdoing, the trial court must decide whether the witness has been made unavailable by the wrongdoing of the accused based upon evidence that is clear, cogent, and convincing.” The court held, with apparent justification, that the standard was met in the case before it. This was a murder case, and the statements at issue, which the court held were testimonial, were accusations by the victim of a prior assault on the victim. The court appears not to have been troubled by the fact that the accusations in question were made before the crime in question – the murder – was committed.
I think the Washington court is right that an elevated standard should apply in determining forfeiture, but the betting has to be that if the Supreme Court ever resolves the question as a matter of federal constitutional law it will adopt a preponderance standard; it certainly gave a big hint in that direction in Davis v. Washington, 126 S.Ct. 2266 (2006). If it does so, though, state courts will remain free to apply elevated standards as a matter of their own constitutional law.
In any event, I believe this issue is less important than might first appear. A court inclined to let evidence in on the basis of forfeiture will most likely be willing to recite the "clear, cogent and convincing" standard if it has to. I doubt this language will help very many defendants.
More important, it seems to me, is the question of what duty to mitigate the prosecution has when it seeks to invoke the forfeiture doctrine. Sometimes, when the wrongdoing that rendered the witness unavailable is murder, the prosecution has an opportunity between the time of the fatal blow and the death of the victim to take the victim's deposition; most often, as in Mason's case, that is not so. And, when the contention is that the accused forfeited the right by intimidating the witness, a slew of issues arises concerning what steps, if any, the prosecutor or court should take to ascertain how much of the confrontation right can be preserved. I have commented on some of these issues in prior posts -- for example, Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth.
In Mason, by the way, four justices refused to sign the majority opinion. The principal reason was that they believed the court should not adopt what I have called a doctrine of reflexive forfeiture – that is, applying forfeiture doctrine when the act that purportedly rendered the witness unavailable is the same as the act with which the defendant is tried. (Two judges dissented on this basis; the other two concurred because they believed the error was harmless.) That is, the accused was charged with murder, and the act that allegedly rendered the witness (the alleged murder victim) unavailable was the act of murdering him. These four justices regarded application of the doctrine in this circumstance as a violation of the presumption of innocence and the principle requiring proof of guilt beyond a reasonable doubt. In my view, this is simply a logical error. Because I've expressed this view often before, see, e.g., Forfeiture and dying declarations, I'll address it very briefly here.
In a case of this sort, two basic factual determinations must be made, and usually by two separate decision-makers. The jury must decide whether the defendant is guilty beyond a reasonable doubt of the crime charged. In the course of the trial the court must decide whether the criteria for the admission of evidence are met. If, say, the accused claims that admission of an out-of-court testimonial statement by a witness to a robbery would violate his confrontation right, but in fact the reason the accused has not had an opportunity to cross-examine the witness is that he murdered her, it seems obvious to me that the accused has forfeited the confrontation right. It seems equally obvious that it is the court that must determine whether the facts supporting a conclusion of forfeiture are true to the requisite degree of probability. The situation does not change when the act that purportedly rendered the witness unavailable is the crime being tried. If in fact the accused’s wrongful conduct is what kept the witness from testifying in court, then it would be abhorrent to keep that testimony out on the basis that the accused never had an opportunity to cross-examine. There are still two fact-finding functions that are separate. The jury must determine guilt; to do so it must begin with the presumption of innocence, it can only use the evidence allowed by the court, and it can fund guilt only if it is persuaded beyond a reasonable doubt. The court has to determine whether the conditions for forfeiture are made out, and if it does it admits the evidence – but of course it does not say, “Jurors, the reason you’re hearing this evidence is that I’ve determined that the accused murdered this potential witness” – just as in a conspiracy case it does not say, “Jurors, the reason you’re hearing this statement is that I’ve concluded that it was made during the course of and in furtherance of a conspiracy of which both the declarant and the accused were members. Now it’s up to you to determine whether they were conspirators for the purpose of determining guilt.” In short, I believe this resistance to reflexive forfeiture is a red herring.
