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

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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.

IChavez, Daniel Chavez challenged his conviction for the first-degree murder of his wife, Kathy Chavez. The evidence presented at trial established that

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.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/12/forfeiture-flchavez-v-state----so3d------2009-wl-4591048flaapp-1-dist2009.html

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Comments

Doesn't it make sense to limit the forfeiture by wrongdoing exception to cases where the defendant specifically intends to prevent the witness from testifying? Otherwise, wouldn't the victim's statements always be admitted in a murder trial? Where's the reliability in that?

Posted by: Tom Jacob | Dec 14, 2009 1:52:00 PM

Tom, in Giles, that is exactly what the court found. In Florida, though, there is no forfeiture by wrongdoing doctrine, even in cases where specific intent can be proven.

Posted by: Colin Miller | Dec 14, 2009 3:30:33 PM

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