Wednesday, October 21, 2009
Forfeit Victory, Take 11: California Appellate Court Finds Forfeiture By Wrongdoing Doctrine Applies To Attempts To Prevent Victims From Reporting Abuse
Last year, I did a series of posts on the Supreme Court's opinion in Giles v. California, which construed the scope of the forfeiture by wrongdoing doctrine. Under that doctrine, there is an exception to the rule against hearsay (and the Confrontation Clause) for
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.
In Giles, the Court held that application of the forfeiture by wrongdoing doctrine requires a specific intent on the part of a criminal defendant to render a witness unavailable for trial (e.g., the witness tampering situation), meaning that the doctrine does not apply in a case where, for instance, a man allegedly murders a woman and then stands trial for her murder. But what if a man murders a woman (at least in part) to prevent her from reporting domestic violence and/or to prevent her from testifying against him at his trial for domestic violence? Can the man raise a hearsay/Confrontation Clause objection to the admission of the woman's prior statements at his trial for murdering the woman? Well, that's an interesting question and one which I previously answered incorrectly, if dicta from the recent opinion of the California Court of Appeal, Second District, in People v. Banos, 2009 WL 3337673 (Cal.App. 2 Dist. 2009), is accurate.
In Banos, Manuel Banos was convicted of the second degree murder of his ex-girlfriend, Mary Ann Cortez, and two counts of first degree burglary. Before Cortez was murdered, she made a couple of statements to authortities concerning acts of domestic violence committed against her by Banos. At the time that Cortez was killed, there was a pending hearing on Banos' violation of a restraining order that Cortez had gotten against him. The trial court admitted these statements under California's version of the forfeiture by wrongdoing doctrine, and the California Court of Appeal, Second District, subsequently affirmed.
How could it reach this conclusion if Banos could not have had the specific intent to render Cortez unavailable at his murder trial at the time that he allegedly killed her (because there could be no murder trial until the killing was completed)? Well, as I noted in one of my posts on Giles, the Supreme Court in Giles seemed to adopt a transferred intent theory of forfeiture by wrongdoing, meaning that, as long as a defendant specifically intends to render a prospective witness unavailable to testify against him at some trial, that intent can transfer to another trial (e.g., the defendant's trial for murdering the prospective witness), making the forfeiture by wrongdoing doctrine applicable. I based this conclusion on a portion of the Court's opinion, which stated that
Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution-rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.
In other words, if a defendant specifically intends to render a domestic violence victim unavailable at ongoing criminal proceedings by killing her, that intent can transfer to his subsequent trial for murdering the victim, making the forfeiture by wrongdoing doctrine applicable. Now, some commentators, such as Lyle Denniston at SCOTUSblog, speculated that the Court's holding was even broader and that courts could find transferred intent even when the defendant's initial intent was only to prevent the victim from reporting abuse.
I can certainly see how the above block quote would support this conclusion, and this is indeed what the California Court of Appeal, Second District, found in dicta in Banos. According to the court, the Supreme Court's use of the disjunctive "or" in the above block quote
reflect[ed] the court's intent to designate two alternative ways of satisfying the factual predicate for application of the forfeiture by wrongdoing doctrine: evidence that the defendant (1) intended to stop the witness from reporting abuse to the authorities; or (2) intended to stop the witness from testifying in a criminal proceeding.
As I noted in my earlier post, however, at other points in its opinion, the Court clearly noted that the forfeiture by wrongdoing doctrine only applies "when the defendant engaged in conduct designed to prevent the witness from testifying." (emphasis added). Thus, notwithstanding the language above, I think that "evidence of ongoing criminal proceedings at which the victim would have been expected to testify" appears to be the sine qua non for application of the forfeiture by wrongdoing doctrine.
But according to at least one appellate court in California, I am wrong. Then again, it was the broad interpretation of the forfeiture by wrongdoing doctrine by California which led to Giles and the Supreme Court's more restrictive reading of the doctrine, so it will be interesting to see whether other courts follow suit.