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Univ. of South Carolina School of Law

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Saturday, December 15, 2007

So Turn And Forfeit: Massachusetts Court Applies Forfeiture By Wrongdoing Doctrine In 7-Eleven Stabbing Case

Blake Colella is on trial in state court in Massachusetts, facing charges of assault and battery with a dangerous weapon in connection with the stabbing of Richard Dalton outside a 7-Eleven last May.  Allegedly, Colella and Dalton's teenage cousin, Starann Butler, were having a "conversation" when Dalton intervended, and Colella stabbed him in the chest.  It is also alleged that Colella assaulted Dalton's younger brother Joseph.

Things initially appeared to be going surprisingly well for Collela at trial.  When Richard Dalton was called to the witness stand, he testified that he could not recall the events of the night of the stabbing.  Butler then testified that she could not remember much about the night of the stabbing.  When asked about her prior identification of a photograph of Colella as her assailant, Butler claimed that she made the identifcation only because the police had shown the photograph to her.  When the prosecution called Colella's father, Angelo, he refused entirely to testify.

It's difficult to prove a case without testimony implicating the defendant, but Salem Superior Court Judge David Lowy changed the landscape of the Colella trial when he determined that these witnesses were refusing to testify because of coercion or witness intimidation by Colella.  Based upon this determination, Judge Lowy found that the doctrine of forfeiture by wrongdoing was applicable to the case.  Under this doctrine "[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 admissible as an exception to the rule against hearsay.  Thus, pursuant to this doctrine, Judge Lowy allowed for the admission of statements made by Butler and Dalton to police and to a grand jury and recorded conversations between Colella and his father even though they typically would have constituted hearsay.

Massachusetts just recently incorporated the forfeiture by wrongdoing doctrine into its case law in the 2005 case, Commonwealth v. Edwards, 830 N.E.2d 526 (Mass. 2005), and that case provides an opportunity to explore some of the splits among courts about how to apply the doctrine.  Most courts hold that the party seeking to prove wrongdoing by the opposing party must do so only by a preponderance of the evidence, and Massachuseets joined the majority in Edwards.  A minority of courts, however, require proof by clear and convincing evidence.  I agree with the majority of courts because the determination of whether there was wrongdoing is a preliminary question of fact similar to the preliminary questions of fact presented when there is an alleged admission by a party's employee or coconspirator.  Because courts apply the preponderance burden of proof in these cases, they should apply the same burden of proof in forfeiture by wrongdoing cases. See id. at 172.

Additionally, most courts require that a judge hold an evidentiary hearing before determining whether the forfeiture by wrongdoing doctrine is applicable while other courts do not require such a hearing. See id. at 174.  Massachusetts joined the majority in Edwards. See id.  I haven't done enough research on this issue to definitively favor either side, but it appears at first blush that it would be unfair to apply the doctrine without giving the alleged wrongdoer the full and fair opportunity to contest the allegations provided by a hearing.

-CM

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