Monday, December 14, 2009
Forfeit Victory: Florida Opinion Reveals That Florida Has Not Adopted The Forfeiture By Wrongdoing Doctrine
Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing doctrine, provides an exception to the rule against hearsay 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.
As the recent opinion of the District Court of Florida, First District, in Chavez v. State, 2009 WL 4591048 (Fla.App. 1 Dist. 2009), makes clear, however, the common-law hearsay exception of forfeiture by wrongdoing is not authorized under Florida's Evidence Code, unlike numerous other states' evidence codes.
Seven months after their marriage, Mrs. Chavez moved out of the marital residence, leaving behind her wedding ring. Mrs. Chavez told her mother, Teresa Hemanes, that [Daniel] told her that if he could not have her as his wife, then nobody else could; she told a friend that [Daniel] told her that he was going to stab her; and three weeks before her death, she told another friend that she and [Daniel] had argued and [Daniel] said that if she left him, he would stab her to death and no one would have her. Mrs. Chavez moved in with Patsy Haley, a friend to whom she also relayed [Daniel]'s threat that if he could not have her as his wife, then nobody would.
The trial court admitted Kathy Chavez's statements by finding that "they were admissible under the common-law hearsay exception of forfeiture by wrongdoing." After he was convicted, Daniel appealed on this issue, and the District Court of Florida reversed in part, finding that the common-law hearsay exception of forfeiture by wrongdoing is not authorized under Florida's Evidence Code, unlike numerous other states' evidence codes."
Moreover, the court noted that even if Florida had recognized the doctrine of forfeiture by wrongdoing, it would not have applied because the Supreme Court found in Giles v. California that statements are "not admissible under the doctrine of forfeiture by wrongdoing unless the defendant specifically intended to prevent that witness from testifying." Because the prosecution did not present (and, indeed, could not have presented) evidence of such specific intent, the forfeiture by wrongdoing doctrine would not have applied even if it existed in Florida.
Of course, that leaves the question of whether Florida should recognize the forfeiture by wrongdoing doctrine, and I direct readers to Timothy M. Moore, Forfeiture by Wrongdoing: A Survey and an Argument for its Place in Florida, 9 Fla. Coastal L. Rev. 525 (2008), for comprehensive analysis of the issue.