EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, February 8, 2008

Forfeit Victory, Take 2: Supreme Court of Montana Finds Forfeiture By Wrongdoing Doctrine Doesn't Require Specific Intent

As I noted before, the United States Supreme Court recently 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.  The Court' opinion in the case is likely to have a significant impact across the country as courts are increasingly finding that such intent is not required.  Earlier, I wrote about how the Supreme Court of Wisconsin found that specific intent on the part of a defendant to render a prospective witness unavailable at trial was not required to apply the forfeiture by wrongdoing doctrine in the Mark D. Jensen trial.

Now, the Supreme Court of Montana has come to a similar conclusion in State v. Sanchez, 2008 WL 273926 (Mont. 2008).  In Sanchez, Raul Sanchez was convicted of deliberate homicide and sentenced to life without parole in connection with the shooting death of his estranged girlfriend, Aleasha M. Chenowith.  After dating Chenowith for about 4.5 months, Sanchez became suspicious that she was cheating on him with his co-worker.  He then confronted the co-worker, who confirmed his suspicions.  Subsequently, on the night of July 19, 2004, Sanchez was distraught, angry, and drinking as he tried to get Chenowith to come out of he trailer to talk to him.  She eventually came outside, they argued, and he shot her five times, allegedly when she threatened to have his children taken away.  These facts were not substantially disputed because Sanchez turned himself into law enforcement officials later that night and admitted to the shooting.  The question, though, was whether this was a planned murder or a heat of passion killing (Sanchez testified that something got dark in his head when Chenowith told him that she would have his children taken away.).

As evidence that the murder was planned, the prosecution sought to introduce, inter alia, a note written by Chenowith, which stated:

"On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if I ever was cought [sic] with another man while I was dating him, that he would kill me.  Raul told me that he had friends in Mexico that had medicine that wold kill me and our doctors wouldn't know what it was till it was to [sic] late and I would be dead."

This statement would have been inadmissible hearsay unless the forfeiture by wrongoing doctrine applied.  Under this doctrine, a defendant waives his hearsay and Confrontation Clause ojections to evidence when he engages or acquiesces in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.  So, for instance, in the Sanchez case, if an eyewitness saw Sanchez kill Chenowith, the eyewitness told a friend, and then Sanchez killed the eyewitness, the friend could testify about the eyewitness' statements at trial, despite the statements constituting hearsay.

The more difficult question is whether a defendant like Sanchez, who specifically intended to kill Chenowith but who did not specifically intend to prevent her from testifying at trial against him, triggers the forfeiture by wrongdoing doctrine.  Like the Supreme Court of Wisconsin, the Supreme Court of Montana found that such intent was not required and thus found that the note was admissible pursuant to the forfeiture by wrongdoing doctrine.  The United States Supreme Court's upcoming decision will either confirm the validity of the ruling or strike it down.  I have my own thoughts on the dcotrine in this post.



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