The Sixth Amendment provides a criminal defendant the right to confront adverse witnesses, but this right is not absolute. In Giles v. California, the U.S. Supreme Court held a defendant will lose his or her Sixth Amendment right, under the forfeiture by wrongdoing doctrine, if the prosecution proves the defendant intended and caused a witness not to testify. Yet, the Court has not established a procedure that the trial court should use when making a forfeiture determination.
The Court’s 2004 holding in Crawford v. Washington significantly diminished numerous exceptions to the Confrontation Clause, overturned most of the alternative tests, and made it more difficult for the prosecution to admit an out-of-court statement by an unavailable witness who the defense did not have an opportunity to cross-examine. Pre-Crawford, the forfeiture by wrongdoing doctrine was less prevalent because other tests allowed the prosecution to circumvent the Confrontation Clause.
Post-Crawford, a circuit split evolved over whether a separate hearing is required prior to determining if a defendant has forfeited his or her right to confront an adverse witness. In A Reliable and Clear-Cut Determination: Is a Separate Hearing Required to Decide when Confrontation Forfeiture by Wrongdoing Applies, which will be featured in the New England Law Review’s Volume 49, Issue 2, Tim Donaldson predicts that the Court is likely to rule on the procedure for making a forfeiture determination in the near future as a result of Crawford.
Tim Donaldson’s Article argues that a trial court should make forfeiture determinations in a separate hearing, without a jury, unless admissible evidence was previously presented at trial that adequately shows forfeiture. To reach this conclusion, the author analyzes both sides of the circuit split. The Second and Tenth Circuits have held that a trial court must make forfeiture determinations in a separate evidentiary hearing where the jury is not present. The First, Fourth, Eighth, and D.C. Circuits, however, have held that a trial court judge is not obligated to conduct a separate hearing as long as sufficient evidence of forfeiture is presented at trial.
The jurisdictions that have held a separate evidentiary hearing is not always necessary to make forfeiture determinations have looked to procedures used in co-conspirator cases to reach this conclusion. Both the co-conspirator statement rule and the forfeiture by wrongdoing doctrine require a trial-court judge to determine whether an out-of-court statement may be used in court and in front of the jury. Despite the underlying theoretical differences between the doctrines, Donaldson demonstrates how the procedures for determining forfeiture in co-conspirator cases provide guidance into the appropriate procedures for determining forfeiture by wrongdoing.
Separate hearings outside of the jury’s presence are not always required by the circuit courts of appeal when determining whether a co-conspirator statement should be presented to the jury during trial. Furthermore, the circuit courts have applied various procedures depending on the facts of a case because co-conspirator-statement cases show that rigid procedural rules for forfeiture by wrongdoing would not be appropriate or equitable in all cases.
Since trials are complex and unpredictable, Donaldson argues that a trial-court judge must have discretion to determine the appropriate procedure for a case based on the specific facts and circumstances as they occur during the trial. When a trial-court judge conditionally allows the jury to hear an out-of-court statement, the judge risks causing a mistrial—if the information presented to the jury is insufficient to show forfeiture and too prejudicial for the jury to disregard. In some cases, a judge would need to declare a mistrial because a limiting instruction would not be sufficient to protect a defendant’s right to a fair trial. Nevertheless, the Supreme Court should not require a separate evidentiary hearing outside of the jury’s presence to determine forfeiture at every trial, as it would squander judicial resources. When information presented during the trial shows that the defendant’s wrongful conduct caused a witness to be unavailable at trial, requiring the trial court to conduct a separate evidentiary hearing outside the presence of the jury would be redundant and inefficient.
In order to prevent wasting judicial resources and protect a defendant’s right to a fair trial, Donaldson argues that when possible, a court should carefully determine, outside of the jury’s presence, whether the proof presented at trial would sufficiently establish forfeiture by wrongdoing. Since forfeiture by wrongdoing requires the prosecution show the defendant intended to prevent the witness from testifying at trial, unless the elements of the prosecution’s case involve the defendant’s intent to prevent a witness from testifying, the jury may be exposed to prejudicial information and a mistrial may be necessary if the prosecution is unable to establish forfeiture.
This Article will appear in full in Volume 49, Issue 2 of the New England Law Review, due to be published late Spring.