EvidenceProf Blog

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

Sunday, May 2, 2010

Forfeit Loss: Supreme Court Of Utah Adopts Preponderance Of The Evidence Standard For Forfeiture By Wrongdoing Doctrine

Federal Rule of Evidence 804(b)(6) provides 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.

Utah does not have a codified state counterpart to this federal rule, but it does similarly recognize the doctrine of forfeiture by wrongdoing. Before its recent opinion in State v. Poole, 2010 WL 1727819 (Utah 2010), however, the Supreme Court of Utah had not yet resolved the issue of what burden of proof the state must meet to show that a defendant has forfeited the right to confrontation through misconduct. Now, it has.

In Poole,

Christian Poole entered conditional guilty pleas to three counts of rape of a child and [wa]s...serving a six-year-to-life prison sentence. Because his pleas were conditional, Mr. Poole was permitted to appeal the district court's finding that he forfeited the right to confront the victim of his sexual assault through wrongdoing....While [the Supreme Court of Utah] recognize[d] the doctrine of forfeiture by wrongdoing, the procedural posture of Mr. Poole's criminal prosecution prevent[ed] [it] from determining whether he...forfeited his right to confrontation....The district court's decision on this issue was premature....

That said, the Supreme Court of Utah decided to give the district court guidance on what test to apply when it did properly reach the issue. According to the Utah Supremes, 

in all criminal prosecutions the state must prove the elements of a crime beyond a reasonable doubt....The same standard does not apply to questions concerning the admissibility of evidence, however....The majority of the courts addressing the forfeiture issue have applied a preponderance of the evidence standard....A minority of jurisdictions that have addressed the issue have held the preponderance-of-the-evidence standard is insufficient to protect the defendant's right to confrontation. These courts instead require the prosecution to demonstrate forfeiture by clear and convincing evidence.

According to the court, "[t]he argument in favor of imposing a more rigorous standard of proof is founded on a theory that when constitutional rights are at issue 'the stakes are simply too high to be left to a mere preponderance standard....[T]he right of confrontation should not be easily deemed forfeited by an accused.'" The court then acknowledged that "[t]his argument has some force, particularly in light of this court's history of careful protection of constitutional rights."   

That said, the court decided to adopt the majority view. According to the court,

Our general rule for evidentiary rulings is an important factor. Moreover, the prosecution must establish all three elements of the forfeiture test before the unavailable witness's out-of-court statements may be admitted. Two of these elements-the wrongful conduct and the defendant's subjective intent in engaging in the conduct-are particularly difficult to prove. An evidentiary hearing on this issue will be necessary in most cases, and a higher burden on the state would often result in an unnecessary mini-trial on forfeiture. Moreover, an increase in the standard to clear and convincing evidence could undermine the policy behind the forfeiture-by-wrongdoing doctrine by making the prosecution's burden so high that it can be met in only the most egregious cases of witness tampering or intimidation.



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