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Univ. of South Carolina School of Law

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Wednesday, February 20, 2008

One Dead In Ohio: Court Of Appeals Of Ohio Finds Forfeiture By Wrongdoing Doctrine Only Applies To Actions Taken After The Charged Event

As I noted before, the Supreme Court has granted certiorari in Giles v. California, a case that addresses the issue of whether the forfeiture by wrongdoing doctrine applies even when the prosecution cannot prove a specific intent on the part of a defendant to render a prospective witness unavailable to testify at trial.  Case law uniformly holds that the doctrine applies where a defendant facing trial kills or injures a prospective witness against him because such a defendant has the specific intent to render the prospective witness unavailable.  But what happens when, say, a husband kills his wife and is on trial for her murder?  Should the doctrine apply even though the husband's specific intent in that case was not to render his wife unavailable to testify against him?  As I've noted, a few courts, such as the Supreme Court of Montana in State v. Sanchez, 2008 WL 273926 (Mont. 2008) and the Supreme Court of Wisconisn in the Mark D. Jensen case have found that the forfeiture by wrongdoing doctrine applies in such circumstances and thus must be awaiting the Supreme Court's decision with baited breath.

An example of a court coming to the opposite conclusion can be found in the Court of Appeals of Ohio's recent opinion in State v. McCarley, 2008 WL 375842 (Ohio App. 9 Dist. 2008).  In McCarley, Charlene Puffenbarger filed a paternity/child support suit in November 1991 naming Willard McCarley as the father of her two year old son.  On January 20, 1992, a neighbor came to Charlene's apartment and found her dead on a couch with several scalp lacerations, defensive wounds on her hands, and a leather strap wrapped twice around her neck.  After trial, McCarley was found guilty of aggravated murder after, inter alia, witnesses testified about statements Charlene made to them after she brought her paternity suit and before her murder, which were admitted pursuant to Ohio Rule of Evidence 804(b)(6), its version of the forfeiture by wrongdoing doctrine, which allows for the admission of "[a] statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying." 

The Court of Appeals of Ohio found that this evidentiary ruling was erroneous because "[i]t would be a very strange case indeed if a person murdered another for the purpose of preventing the other from testifying in their own murder trial."  The court then noted that the Staff Notes to Ohio Rule of Evidence 804(b)(6) indicate that “the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...."  The court thus concluded that "when a homicide victim and a Rule 804 witness are the same person, the forfeiture by wrongdoing provision generally cannot be used to admit that person's statements in their own trial."

Based upon the Staff Notes to Ohio Rule of Evidence 804(b)(6), this conclusion makes sense, but I have a serious question about the Staff Notes themselves.  As noted, the Staff Notes to Ohio Rule of Evidence 804(b)(6) do note that “the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...."  But this conclusion only comes after the following language in the Staff Notes:  "As the federal drafter's note, [t]he wrongdoing need not consist of a criminal act.  The rule applies to all parties, including the government.  It applies to actions taken after the event to prevent a witness from testifying.' Fed.R.Evid. advisory committee's note."  Obviously, only the third sentence quoted from the advisory committee's notes provides support for Ohio's rule, and that leads to the problem, which is that I can't find this sentence listed in the advisory committee's note.

On Westlaw, the first two sentences are listed, but not the third.  The same is true on Cornell's page listing the Rules.  Unless there's some version of the advisory committee's notes I'm not finding, the emperor has no clothes, and the stated rationale for its line drawing dissipates. 

-CM

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