Tuesday, November 20, 2007
The Wrongdoers: Colorado Finds Forfeiture By Wrongdoing Doctrine Does Not Preclude Hearsay Challenge
In June 2002, Jimmy Vasquez was placed under a restraining order prohibiting contact with his wife, Angela Vasquez. In July 2002, Jimmy was arrested on harassment charges and released on a bail bond which again prohibited contact with his wife. In August 2002, Angela reported to police that Jimmy was violating both the restraining order and the bail bond by calling her frequently and leaving phone messages.
As a result of this reporting, Jimmy was convicted of violating the restraining order and bond conditions. Shortly after Angela reported to the police, and two days before Angela was to testify in the trial on the harassment charges brought against Jimmy, her dead body was discovered in a hotel room. An officer at the crime scene encountered Jimmy, who admitted that he killed his wife because she set him up. Jimmy was later tried and convicted of murder in the first degree in connection with Angela's death.
In the harassment case, over Jimmy's objection, the trial court admitted Angela's statements to police identifying the voice on the phone messages as Jimmy's voice in August 2002. After Jimmy was convicted, he appealed to the Supreme Court of Colorado on several grounds, including the ground that the admission of Angela's hearsay statements violated his rights under the Confrontation Clause.
Under Federal Rule of Evidence 804(b)(6), added in 1997, "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" is "not excluded by the hearsay rule...." While Colorado has not adopted a state rule of evidence similar to Rule 804(b)(6), the Supreme Court of Colorado has adopted a form of this doctrine of "forfeiture by wrongdoing" in People v. Moreno, 160 P.3d 242 (Colo. 2007).
What the Supreme Court of Colorado had to address in the Vasquez case, however, was whether this doctrine of "forfeiture by wrongdoing" means that the wrongdoer only waives his objections under the Confrontation Clause or whether he also waives his hearsay objections. In other words, a party who engages in forfeiture by wrongdoing waives his objection that he could not confront the witness whom he prevented from testifying through his wrongdoing, but can he still object that the witness' statements are inadmissible hearsay?
As the Supreme Court of Colorado noted, most courts interpreting the "forfeiture by wrongdoing" doctrine have held that the wrongdoer waives both his Confrontation Clause and hearsay objections because the Confrontation Clause and the hearsay rules are designed to protect similar values and because the Confrontation Clause, as a Constitutional provision, provides more expansive protections than the hearsay rules. The court then noted, however, that a small minority of courts have held that while the wrongdoer waives his Confrontation Clause objections, he does not waive the objection that the evidence the other party seeks to introduce constitutes inadmissible hearsay. The Supreme Court of Colorado adopted this approach, noting that it still had to ensure that the evidence introduced against the wrongdoer was reliable.
I find this conclusion troubling. In arguing that Rule 804(b)(6) should be added in 1997, the Advisory Committee noted that the Rule "filled the need for a prophylactic rule to deal with abhorrent behavior 'which strikes at the heart of the system of justice itself.''" In other words, we don't want a party to be able to kill a witness so that the witness' statements cannot be used against him at trial.
What the Supreme Court of Colorado is saying, however, is that in the typical case where a witness makes out-of-court statements implicating a defendant and the defendant kills the witness, Rule 804(b)(6) serves no practical purpose because the witness' statements will still be excluded as hearsay. Only in the rare case where the witness' statements happen to meet some hearsay exception will the rule have any teeth and serve its prophylactic purpose. The very purpose of the "forfeiture by wrongdoing" doctrine is to shift the court's focus from the reliability of the statements at issue to the equitable goal of preventing a party from benefiting from his wrongdoing, but the Supreme Court of Colorado collapses this dichotomy in its analysis. See Crawford v. Washington, 541 U.S. 36, 62 (2004).
In the end, though, the court's ruling had no practical effect in the Vasquez case because the court determined that Angela's statements were admissible pursuant to Colorado Rule of Evidence 807, which contains Colorado's residual hearsay exception. This decision, however, raises another question. Like its federal counterpart, Colorado Rule of Evidence 801(d)(1)(C) defines statements identifying a person as admissible non-hearsay. While a statement of identification typically involves a witness identifying a defendant at a lineup, some courts have applied it to the identification of a person based upon identifying his voice. See, e.g., United States v. Ramirez, 45 F.3d 1096, 1101 (7th Cir. 1996). I'm not sure whether those rulings are based upon a correct application of Rule 801(d)(1)(C), but it would have been interesting to see how the Supreme Court of Colorado would have addressed the issue.