Sunday, May 9, 2010
Forfeited Opportunity: Supreme Court Of Minnesota Fails To Rule On Sole Intent Theory Of Forfeiture By Wrongdoing
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.
This Rule, however, is merely a recent evidentiary creation, and there was a separate founding-era forfeiture by wrongdoing doctrine. In Giles v. California, the Supreme Court of California had held that this founding-era version of the doctrine applied when a party procured the unavailability of a witness, regardless of whether the party intended such a result, but the Supreme Court of United States reversed, finding that such a specific intent is required. Thus, both the federal rule (and states counterparts) and the founding-era exception now require specific intent to render a witness unavailable at trial.
But must that be the sole intent? For instance, assume that Defendant robs a bank, and Prospective Witness goes to the cops and turns Defendant in, resulting in Defendant being charged with robbery. Defendant then kills Prospective Witness. Obviously, it can be inferred that Defendant killed Prospective Witness in part to prevent him from testifying at trial, but it can also be inferred that Defendant killed Prospective Witness in part as revenge for his betrayal. It seems obvious to me that sole intent is not required for application of the forfeiture by wrongdoing doctrine, but the Supreme Court of Minnesota was not yet ready to take that leap in its recent opinion in State v. Her, 2010 WL 1791154 (Minn. 2010).
In Her, Moua Her was convicted of murdering his estranged wife, Sheng Vang. At the time of the murder, there were domestic assault charges pending against Her, based upon acts that he allegedly committed against Vang. After he was convicted, Her appealed, claiming that the trial court improperly allowed for the admission of an officer's testimony concerning statements that Vang had made to him after the alleged acts which led to the domestic assault charges being brought against Her. Reading the forfeiture by wrongdoing doctrine in a way that did not require intent to render a prospective witness unavailable at trial, the Supreme Court of Minnesota found that the trial court properly admitted Vang's statements because the prosecution presented sufficient evidence that Her killed Vang.
Soon after this decision was handed down, however, the United States Supreme Court decided Giles, forcing the Minnesota Supremes to reconsider their decision. According to the Supreme Court of Minnesota, Her implied in his argument that the forfeiture by wrongdoing doctrine only applies when a party kills a prospective witness with the sole intent of rendering her unavailable to testify at trial. Specifically, he claimed that
the record establishe[d] that he did not kill Vang because he wanted to keep her from being a witness against him. For example, Her note[d] that the State argued at trial that Her murdered Vang because "he didn't want to live his life without her." Her also argue[d] that the additional evidence the State s[ought] to offer on remand, including evidence relating to a domestic assault charge pending at the time of Vang's murder and Vang's order for protection, [wa]s insufficient as a matter of law to satisfy Giles.
The government countered that "intent-to-silence does not have to be the sole motive for the murder." And, indeed, the government was able to point to several cases
which have held that to show forfeiture under Rule 804(b)(6), the State must show that the defendant was motivated only in part to silence the victim. See, e.g., United States v. Gray, 405 F.3d 227, 242 (4th Cir. 2005) (“Although the Rule requires that the wrongdoing was intended to render the declarant unavailable as a witness, we have held that a defendant need only intend ‘in part’ to procure the declarant's unavailability.”); United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir.2001) (“The government need not, however, show that the defendant's sole motivation was to procure the declarant's absence; rather, it need only show that the defendant ‘was motivated in part by a desire to silence the witness.’ “ (internal citation omitted)); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.1996) ( “Moreover, it is sufficient in this regard to show that the evildoer was motivated in part by a desire to silence the witness; the intent to deprive the prosecution of testimony need not be the actor's sole motivation.”).
The Minnesota Supremes, however, punted this issue, finding that the factual record was not yet developed enough for it to be able to rule on this issue. As I said above, though, the resolution of this issue seems as clear as day to me. For the forfeiture by wrongdoing doctrine to apply, a party must act with the intent of rendering a prospective witness unavailable to testify at trial. This means that the prospective witness plans to testify at trial against the party. This means that the party would almost certainly be angry at the prospective witness for planning to testify. Thus, it seems that any party killing a prospective witness in such a case would at least partially be acting based upon revenge. Therefore, if courts used a "sole intent" theory, it is hard to see how any statements would be admissible under the forfeiture by wrongdoing doctrine.