The fact pattern here occurs from time to time. That is, an ultimate homicide victim makes a statement – sometimes orally, sometimes in writing – suggesting that if she is found dead suspicion should fall on a given person. After the victim's death, the identified person – the victim’s husband or boyfriend – is charged with the murder, and the prosecution seeks to introduce the victim’s statement. Other post-Crawford cases fitting this mold are State v. Cunningham, 337 Or. 528, 99 P.3d 271 (Or. 2004), and the very recent State v. Sanchez, 341 Mont. 240, 2008 WL 273926 (Mont. 2008). In Cunningham, the court concluded that the confrontation issue had not been preserved, and held the statement admissible. As in Jensen, the Sanchez court held the key statement to be testimonial in nature, but was willing to apply forfeiture doctrine to permit its admissibility.
I think the result in these cases is the right one. Statements of this sort are almost certainly testimonial in nature. The ultimate victim is anticipating her possible murder, and taking steps to ensure that if indeed she is found dead the authorities will focus on the possibility that the person designated by her has murdered her. Some of the judges in Sanchez thought the statement there – a letter found among the victim’s personal effects – was written to provide information for her health care in case she was found near death as a result of poisoning. That’s awfully strained. This was in effect testimony from the grave, and the courts should be frank in recognizing it as such.
But then the next question is forfeiture. If the courts are willing, as I believe they should be, to adopt forfeiture even in a reflexive situation – that is, when the wrongdoing alleged to have rendered the victim unavailable is the same act for which the accused is on trial – then, assuming the court makes the necessary findings, the accused should be held to have forfeited the confrontation right. The future of reflexive forfeiture is at stake in the Giles case now pending before the United States Supreme Court; the actual question presented there is whether there can be forfeiture even if the accused did not engage in the wrongful conduct for the purpose of rendering the witness unavailable, but if the Court answers in the negative then reflexive forfeiture will not be possible in most cases. I have already written extensively on this issue, and expect to put in an amicus brief on the merits in Giles, so I’ll limit myself here to two comments.
First, the “If anything happens to me” cases illustrate why I think that adopting a purpose requirement for forfeiture would tend to lead to an unduly narrow view of what is testimonial. The inclination of most judges is to admit these statements. I think forfeiture doctrine explains why – if the accused did in fact kill the victim without justification, then his own serious wrongdoing has created the unavailability about which he is complaining. If nevertheless judges were to be precluded from applying forfeiture doctrine in such cases, they would look for ways to treat such statements as non-testimonial, perhaps by adopting unrealistic theories such as the “for her health” rationale in Sanchez, or perhaps by adopting am unjustified rule that a statement made before the crime in question is committed cannot be deemed testimonial with respect to that crime.
Second, a dissenting judge in Jensen, responding to the majority’s reliance on my work, says that my approach,
if fully embraced by the majority, would clearly lead to nonsensical applications. For example, Friedman suggests that ‘[t]he prosecution should bear the burden of taking all reasonable steps to protect whatever aspects of confrontation are possible given the defendant's conduct, and of demonstrating that it has done so.’ [Confrontation and the Definition of Chutzpa] at 525. Thus, under the reflexive forfeiture principle advocated by Friedman, once Julie left the voicemail to Officer Kosman that indicated that she thought Jensen was trying to kill her, the State had an obligation to notify Jensen that Julie made the statement, and give him an opportunity to cross-examine her by way of videotape or deposition. Id. For obvious reasons, the majority does not advance that view. Yet, this is the proper application of Professor Friedman's reflexive forfeiture doctrine adopted by the majority in this case.Well, no it isn’t. The judge’s attempt to lampoon my view is fallacious on its face. Yes, I do believe that the prosecution should take all reasonable steps to protect whatever aspects of confrontation are possible given the defendant’s conduct. But as suggested by the judge himself, if a terrified woman calls a police officer to say that she believes her husband is poisoning her, most courts would not say that it is reasonable to expect that the police should notify the husband of the statement and give him a chance to take her deposition. What steps the state should be expected to take is often an immensely difficult question – but I don’t think most courts would find it so in this setting.