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Univ. of South Carolina School of Law

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Wednesday, September 15, 2010

The Marrying Man: Supreme Judicial Court Of Massachusetts Finds Defendant Marrying His Alleged Victim Triggered Forfeiture By Wrongdoing Doctrine

On Monday, I posted an entry about the strangest spousal testimonial privilege case that I have ever seen. In that case, the State filed an order to show cause seeking to enjoin a planned marriage between the defendant and the alleged victim's sister until after the defendant's trial so that the sister could not invoke the spousal testimonial privilege. It took me a mere two days to find a spousal testimonial privilege that topped that one. Here is the question raised by the recent opinion of the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Szerlong, 2010 WL 3530019 (Mass. 2010): Does the forfeiture by wrongdoing doctrine apply when the defendant marries his alleged victim so that she can exercise the spousal testimonial privilege? According to the court, the answer is "yes."

In Szerlong,

At approximately 2 a.m. on December 13, 2007, the defendant entered his girl friend's home, grabbed her by the throat while she was asleep, and held a knife to her throat. On December 21, 2007, the defendant was charged in a criminal complaint with assault and battery...; assault by means of a dangerous weapon...; and home invasion,...and a warrant was issued for his arrest. The defendant and the victim had not been engaged to marry at the time of the assault, but they were married on January 5, 2008, at the North Attleborough town hall. On January 15, the defendant voluntarily surrendered himself to the court and was arraigned. At that time, the Commonwealth moved for a dangerousness hearing....At the dangerousness hearing on January 23, the victim testified that she was married to the defendant and invoked her spousal privilege. She continued to invoke her spousal privilege, and refused to testify at trial.

Before trial, however, "the Commonwealth moved in limine to admit hearsay statements made by the victim before she married the defendant to a close friend, to her sister, and to a police detective."  According to the Commonwealth, "by marrying the victim so that she could claim her spousal privilege, the defendant had forfeited his right to object on confrontation and hearsay grounds to the admission of her out-of-court statements under the forfeiture by wrongdoing doctrine." The trial court agreed, the statements were admitted at trial, and the defendant was eventually convicted of assault and battery.

The defendant thereafter appealed, and the Supreme Judicial Court of Masachussetts noted that in Commonwealth v. Edwards, 830 N.E.2d 158 (2005), it found that under Article 12 of the Masachusetts Declaration of Rights and Masachussetts' common-law rules of evidence (Masachussetts doesn't have codified rules of evidence), Masachussetts recognizes the doctrine of forfeiture by wrongdoing as long as

(1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness's unavailability.

In Edwards, the Supreme Judicial Court of Masachussetts found that the defendant's act which procured the unavailability of the subject witness does not need to be criminal for the doctrine to apply, and the court in Szerlong found that the recent opinion of the United States Supreme Court in Giles v. California, 128 S.Ct. 2678 (2008) didn't require a change to this conclusion because it found that the doctrine broadly covers "conduct designed to prevent a witness from testifying."

Thereafter, the court affirmed the trial court's verdict, finding that

Though he made no findings of fact, the judge implicitly found that the defendant married the victim with the intent to enable her to claim her spousal privilege and thereby avoid testifying against the defendant....We conclude that this implicit finding is supported by a preponderance of the evidence....The defendant and the victim were not engaged to be married when the incident occurred on December 13, 2007, but they were wed in town hall on January 5, 2008, after Johnson reported the incident to the police but before the arraignment, while the defendant remained a fugitive. The defendant knew that, as a result of the marriage, the victim would be entitled to the spousal privilege, and that the victim intended to exercise the privilege because she did not want her testimony to cause his conviction. Even if the idea to marry originated with the victim, the defendant agreed to marry, and the victim's spousal privilege existed only because of his agreement. In these circumstances, the judge was entitled to infer that the defendant intended to make her unavailable to testify by agreeing to marry her. The judge did not need to find that making her unavailable as a witness was the defendant's sole or primary purpose in marrying her; it is sufficient that it was a purpose in marrying her.

This seems like a strange conclusion to me. It is the doctrine of forfeiture by "wrongdoing." And while the defendant's act of marrying his alleged victim was not criminal, it seems like a strain to deem it wrongdoing. Now, if the court were declaring the marriage a "sham" marriage like a marriage in which one of the parties is just trying to get a Green Card, then maybe that would be wrongdoing sufficient to trigger the doctrine. But it doesn't seem to me that the court was concluding that this was a sham marriage, just a marriage which also allowed the alleged victim to refuse to testify against her new husband.

If the court is correct, though, does that mean that we have seen the end of the classic case of the gangster marrying his moll to prevent her from testifying against him at trial? It might, and I'm not exactly shedding a tear over the defendant in Szerlong not being able to prevent the alleged victim's statements about the scary acts he allegedly committed against her from being admitted into evidence. I'm just not quite sure that this is the type of situation that the forfeiture by wrongdoing doctrine is intended to cover.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/09/804b06-com-v-szerlong-ne2d-2010-wl-3530019mass2010.html

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