EvidenceProf Blog

Conspiracy Theory: Eleventh Circuit Finds No Confrontation Clause Problem With Co-Conspirator Admission Made To Confidential Informant

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause. Thus, in its recent opinion in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit was able to find a statement admissible without regard for the Confrontation Clause because co-conspirator admissions are nontestimonial, even if they are made to confidential informants.

In Diaz, Carlos Diaz was convicted of conspiracy to possess with intent to distribute five kilograms or more of cocaine, attempt to possess with intent to distribute five kilograms or more of cocaine, and carrying a firearm during and in relation to a drug trafficking crime. He thereafter appealed, claiming, inter alia, that the district court erred in allowing for the admission of a statement by his alleged co-conspirator, Carmello Crespo-Dones. This statement occurred when Diaz and Crespo-Dones met with two confidential informants to discuss the purchase of ten kilograms of cocaine, with one CI questioning the presence of Diaz, and Crespo-Dones reassuring the CI that Diaz was a friend and a drug dealer with many contacts who would be useful for future deals. At trial, the CI testified regarding this statement, but Crespo-Dones did not, prompting Diaz's appeal.

Now, the question of what exactly constitutes a "testimonial" statement is a question which has prompted considerable debate. Generally, courts have found that a statement is testimonial if it was made under circumstances which would lead a reasonable man to believe that his statement would be available for use at a later trial. But what are those circumstances? Well, as the Eleventh Circuit noted, one such circumstance is when a statement is a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E). According to the court, "[t]he Supreme Court has noted that statements in furtherance of a conspiracy are 'by their nature...not testimonial.'"    

Moreover, the court held that

We have likewise held that a co-conspirator's statements to a confidential informant, which are admissible under Federal Rule of Evidence 801(d)(2)(E), are not "testimonial" and thus do not violate a defendant's Sixth Amendment confrontation rights....We explained in Underwood that a co-conspirator's recorded conversations "clearly were not made under circumstances which would have led him reasonably to believe that his statement[s] would be available for use at a later trial."...Had the coconspirator known the true identity of the confidential informant, he would never have spoken to her in the first place.

-CM

D.C. Follies?: D.C. Court Of Appeals Seems To Find That D.C. Courts Don't Apply Federal Rule Of Evidence 704(b)

Federal Rule of Evidence 704 indicates that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. 

While D.C. doesn't has codified rules of evidence, D.C. courts clearly apply Federal Rule of Evidence 704(a) in their opinions. Before the recent opinion of the District of Columbia Court of Appeals in Gaines v. United States, 2010 WL 1806662 (D.C. 2010), it appeared that the same held for Federal Rule of Evidence 704(b), but now I'm not so sure.

In Gaines, Kendrick Gaines was convicted of two counts of possession with intent to distribute a controlled substance. At trial, Gaines didn't seem to dispute that he had drugs or intended to distribute them; instead, he claimed that he was subjected to a pretextual and unconstitutional stop. That argument, however, was unsuccessful at trial and unsuccessful on appeal.

On appeal, Gaines also argued, inter alia, that the trial court erred in allowing the prosecution to elicit the testimony of a drug expert, who opined based upon the facts of the case that Gaines possessed the subject drugs with intent to distribute. Relying upon Federal Rule of Evidence 704(b), Gaines claimed "that an expert witness may not 'state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged.'"  

The District of Columbia Court of Appeals disagreed, finding that Gaines

did not raise this issue in the trial court, however, and we have long held that the local law of evidence in this jurisdiction does not prohibit expert witnesses from stating opinions on ultimate facts or issues to be resolved by the jury. See, e.g., Wilkes v. United States, 631 A.2d 880, 883 n. 7 (D.C.1993); Lampkins v. United States, 401 A.2d 966, 970 (D.C.1979). Particularly in light of the absence of any substantial dispute at trial over [Gaines'] intent to distribute, we are satisfied that the trial court did not commit plain error on this issue.

The court clearly seemed to be finding (a) that Gaines did not preserve the issue for appeal, and (b) that any error by the trial court was harmless error. That said, the court also seemed to be saying pretty clearly that expert testimony regarding a criminal defendant's mental state or condition is admissible as ultimate fact/issue testimony. In other words, the court seemed to be saying that D.C. courts apply Federal Rule of Evidence 704(a) but not Federal Rule of Evidence 704(b). And, frankly, I couldn't find a single opinion in which a D.C. court had previously applied Federal Rule of Evidence 704(b).

So, why did I say above that, before Gaines, it appeared that D.C. courts apply Federal Rule of Evidence 704(b) in their opinions? Well, in Steele v. D.C. Tiger Market, 854 A.2d 175, 181 (D.C. 2004), the District of Columbia Court of Appeals held that

Expert opinion testimony is not inadmissible “merely because it amounts to an opinion upon ultimate facts.” Lampkins v. United States, 401 A.2d 966, 970 (D.C.1979); accord, FED. R. EVID. 704(a) ("Except as provided in subdivision (b) [regarding testimony about the mental state or condition of a defendant in a criminal case], testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.").

In other words, the court seemed to be saying that despite its opinion in Lampkins, it would apply Rule 704(b) to exclude expert testimony on mental state or condition in a future case. But in Gaines, that no longer held true, with the court merely applying Lampkins to defeat the defendant's argument. Would the court have made the same decision if the defendant preserved the issue or if the alleged error was not harmless? I'm not sure, but it doesn't seem likely to me.

-CM

Safety In Numbers: Eighth Circuit Finds Best Evidence Rule Not Triggered By Inscription On Safe

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

In United States v. Buchanan, 2010 WL 1753346 (8th Cir. 2010), law enforcement officers testified regarding an inscription inside a safe but did not produce the safe at trial. According to the defendant, the admission of their testimony violated the Best Evidence Rule; however, the Eighth Circuit responded that courts do not have to apply the rule to chattels. I'm not sure that I agree with the court's reasoning.

In Buchanan, Ronald Andrew Buchanan was convicted of possession with the intent to distribute at least 50 grams or more of a mixture and substance containing cocaine base and possession with intent to distribute a mixture and substance containing cocaine. Before Buchanan was charged, police searched Buchanan pursuant to a search warrant and, inter alia, "discovered drug notes and a set of keys-including one key bearing the number '2010' upon it-on Buchanan's person."  

Further investigation determined that the "2010" key matched a large safe under the stairs in the basement of [a residence at] 65th Street....This safe also bore the number "2010" on it and contained within it a manual bearing the same number. The large safe also contained a lease agreement for the 65th Street residence, signed in September 2007, listing Buchanan and Traci Smith, Buchanan's girlfriend, as tenants, a photo of Buchanan, and an Iowa vehicle title for the Chevy Blazer in Buchanan's name. Officers did not seize the safe.

At trial, law enforcement officers testified regarding the inscription in the safe. After he was convicted, Buchanan appealed, claiming, inter alia, that because the inscription was a writing, the prosecution needed to produce the safe at trial or account for its nonproduction. The prosecution responded that it did not need to produce the safe because it was a chattel and thus not covered by the Best Evidence Rule.

The Eighth Circuit agreed with the prosecution, noting that in United States v. Duffy, 454 F.2d 809, 811 (5th Cir. 1972), the Fifth Circuit found that the Best Evidence Rule was not applicable to a white shirt with a laundry mark because

[t]he shirt with a laundry mark would not, under ordinary understanding, be considered a writing and would not, therefore, be covered by the "Best Evidence Rule[."] When the disputed evidence, such as the shirt in this case, is an object bearing a mark or inscription, and is, therefore, a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing....In reaching his decision, the trial judge should consider the policy-consideration behind the "Rule[."] In the instant case, the trial judge was correct in allowing testimony about the shirt without requiring the production of the shirt. Because the writing involved in this case was simple, the inscription "D-U-F [,"] there was little danger that the witness would inaccurately remember the terms of the "writing[."] Also, the terms of the "writing" were by no means central or critical to the case against Duffy. The crime charged was not possession of a certain article, where the failure to produce the article might prejudice the defense. The shirt was collateral evidence of the crime. Furthermore, it was only one piece of evidence in a substantial case against Duffy.

The Eighth Circuit applied this logic to the case before it, finding that

the district court appropriately treated the safe as chattel. The policy considerations behind the best evidence rule...are not implicated. The writing-"2010"-was simple, meaning that little danger existed that the witness would inaccurately remember the terms of the “writing” on the safe. And, as the district court noted, the likelihood of fraud was small because the government also admitted into evidence the safe's instructional manual, which was found inside the safe and also bore the number “2010.”

Moreover, as the district court explained, "the testimony regarding the inscription on the safe was only a small part of the substantial evidence presented against Buchanan."...The numeric inscription was not “critical” to the case against Buchanan; instead, the safe was merely collateral evidence of the crime.

Now, I certainly have no problem with parts of the court's ruling. Pursuant to Federal Rule of Evidence 1004(4),

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[t]he writing, recording, or photograph is not closely related to a controlling issue.

Therefore, there was an independent ground for finding that the inscription on the safe was not covered by the Best Evidence Rule, but this ground would apply equally to a writing that was not a chattel. The above analysis also reveals that the Eighth Circuit found that any error committed by the trial court was harmless, but, again, this analysis would apply equally to a writing that was not a chattel.

Therefore, the only ground given by the Eighth Circuit (and the Fifth Circuit) for treating a writing that is also a chattel differently from a mere writing under the Best Evidence Rule is that the former can be simple, with little danger existing that the witness would inaccurately remember it. But a mere writing can be simple as well. A mere writing can consist of just a number, as in Buchanan, or just initials, as in Duffy.

I thus don't buy the Eighth Circuit's reasoning. I do buy the reasoning of other courts, though. The most common reason that I have seen for treating chattel differently than writings under the Best Evidence Rule is that chattels are often more difficult to produce than mere writings. Obviously, it is easier for a party to bring a piece of paper to a courtroom than it is for the party to bring a safe. Thus, I can see why courts should be allowed to treat chattels differently, but not for the reasons given by the Eighth Circuit.

-CM

Looking For A Confrontation: Tenth Circuit Reverses District Court's Outdated Confrontation Clause Ruling

A criminal defendant has the right to be confronted with the witnesses against him under the Confrontation Clause of the Sixth Amendment. Thus, even if a hearsay statement made by an unavailable declarant qualifies for admission under an exception to the rule against hearsay, it still must be excluded if its admission would violate the defendant's right to confrontation. For years, the Supreme Court's opinion in Ohio v. Roberts, 448 U.S. 56 (1980), ruled the Confrontation Clause roost. Under Roberts, one of the key questions was whether the applicable hearsay exception was "firmly rooted." In essence, if it was, there was no Confrontation Clause problem; if it was not, there was a Confrontation Clause problem. That all changed, however, with the Supreme Court's 2004 opinion in Crawford v. Washington, 541 U.S. 36 (2004). In its recent opinion in United States v. Smalls, 2010 WL 1745123 (10th Cir. 2010), the Tenth Circuit finally took notice.

In Smalls, Paul Smalls was charged with murder, and the prosecution sought to convict him in part through incriminatory statements made by Glen Dell Cook to a confidential informant while he was incarcerated. These statements incriminated both Cook and Smalls in the murder, and the prosecution sought to admit these statements as statements against interest pursuant to Federal Rule of Evidence 804(b)(3).

The district court assumed Cook's statement was nontestimonial and, as such, the question of its admissibility against Defendant Smalls lay outside the Sixth Amendment's "'core concerns.'"...Nonetheless, the district court analyzed the admissibility of Cook's statement under the framework of the Supreme Court's Confrontation Clause jurisprudence as set forth in Ohio v. Roberts, 448 U.S. 56 (1980). The district court focused its analysis, consistent with Roberts, on the question whether Cook's statement fit "within a firmly rooted hearsay exception" or otherwise showed "particularized guarantees of trustworthiness."...Based on the foregoing, the district court held Cook's statement inculpating both himself and Defendant Smalls fell outside a firmly rooted exception to the hearsay rule.

Thereafter, the prosecution brought an interlocutory appeal to the Tenth Circuit, claiming that this ruling was erroneous. The Tenth Circuit agreed, noting that Ohio v. Roberts was supplanted by the Supreme Court's opinion in Crawford v. Washington, in which it found that that the Confrontation Clause is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.

The Tenth Circuit acknowledged that "[r]egrettably, [it] ha[d] been slow to come into compliance with the Court's controlling precedent," itself applying Ohio v. Roberts even after it had been supplanted. But it now correctly applied Crawford and found that Cook's statement was nontestimonial based upon the Supreme Court's subsequent opinion in Davis v. Washington, 547 U.S. 813, 825 (2006), in which it found that "statements from one prisoner to another" are "clearly nontestimonial." The Tenth Circuit thus reversed and remanded (and left it to the district court to determine which portions of Cook's statements qualified as statements against interest and which portions had to be excised).

-CM

The Character Of The Matter: Supreme Court Of Iowa Finds Sexual Abuse Character Evidence Rule Violates Due Process

Similar to Federal Rule of Evidence 413, Iowa Code Section 701.11 provides in relevant part that

In a criminal prosecution in which a defendant has been charged with sexual abuse, evidence of the defendant's commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This evidence is not admissible unless the state presents clear proof of the commission of the prior act of sexual abuse.

The vast majority of courts that have considered Due Process challenges to Federal Rule of Evidence 413 and state counterparts have found that these rules withstand constitutional scrutiny. After its recent opinion in State v. Cox, 2010 WL 1727654 (Iowa 2010), we can now place the Supreme Court of Iowa in the minority column.

In Cox, Matthew Cox was convicted of one count of sex abuse in the second degree and one count of sex abuse in the third degree for sexually abusing his younger cousin. At trial, the court permitted the prosecution to present evidence of Cox's prior sexual abuse of two other cousins. After he was convicted, Cox appealed, claiming that the admission of prior bad acts solely to show a general propensity instead of to show a permissible purpose violated the due process clause of the Iowa Constitution.

Cox noted that, as under federal law, there is a character evidence dichotomy under Iowa Rule of Evidence 5.404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, plan, knowledge, identity of absence of mistake or accident.

Of course, Iowa Code Section 701.11 provides that evidence of another sexual abuse committed by a criminal defendant is admissible on any matter for which the evidence is relevant, which collapses the above dichotomy and allows for the admission of evidence to prove, "Once a sexual abuser, always a sexual abuser." But does such a rule violate due process? As the Supreme Court of Iowa noted, federal courts pretty much have routinely determined that it does not. Similarly, most state courts have followed suit although the Iowa Supremes did note that the Supreme Court of Missouri went in the opposite direction, finding that "[e]vidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant's propensity to commit the crime with which he is presently charged. There are no exceptions to this rule."

Iowa then decided to join Missouri. According to the Supreme Court of Iowa

Iowa courts... ground the rejection of propensity evidence on "fundamental" concerns of fairness and the presumption of innocence. The policy against admissibility of general propensity evidence stems from "'a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.'"..."'A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’ This concept is ‘fundamental to American jurisprudence.'"...

This court has also applied the reasoning that general propensity evidence is fundamentally unfair in the context of prior sexual abuse involving a different victim. In Cott, this court based its rejection of the "lewd disposition exception" on concerns of "unfairness."...

Unlike the other purposes for other-crimes evidence, the sex-crime exception flaunts the general prohibition of evidence whose only purpose is to invite the inference that a defendant who committed a previous crime is disposed toward committing crimes, and therefore is more likely to have committed the one at bar.

The Iowa Supremes thus reached the following conclusion:

Based on Iowa's history and the legal reasoning for prohibiting admission of propensity evidence out of fundamental conceptions of fairness, we hold the Iowa Constitution prohibits admission of prior bad acts evidence based solely on general propensity. Such evidence may, however, be admitted as proof for any legitimate issues for which prior bad acts are relevant and necessary, including those listed in rule 5.404( b ) and developed through Iowa case law.

Because the court found that Cox's prior acts of sexual abuse were admitted solely to prove "Once a sexual abuser, always a sexual abuser," it reversed and remanded for a new trial.

-CM

Article Of Interest: Susan Haack's Irreconcilable Differences? The Troubled Marriage of Science and the Law

One of the biggest problems that filmmakers face is the problem of exposition. How does the filmmaker convey the necessary backstory to the audience organically and seamlessly? Regrettably, the filmmaker usually relies upon a clunky conversation between a few of the principals or the classic storytelling crutch of someone new to a situation being told all of the details by a veteran. In Charles Shyer's 1984 movie, "Irreconcilable Differences," i.e., the movie where Drew Barrymore divorces her parents, the filmmakers avoid this problem with a neat trick: The backstory unfurls as the characters testify during the divorce trial. If only there were such a quick fix for the problems between science and the law.

Those problems are the subject of an excellent recent article of the same name by Susan Haack of the University of Miami School of Law: Irreconcilable Differences? The Troubled Marriage of Science and the Law. 

In the introduction, Haack lays out the core of her argument:

that there are deep tensions between the goals and values of the scientific enterprise and the culture of the law, especially the culture of the U.S. legal system:  between the investigative character of science and the adversarial culture of our legal system; between the scientific search for general principles and the legal focus on particular cases; between the pervasive fallibilism of the sciences--its openness to revision in the light of new evidence--and the concern of the law for prompt and final resolutions; between the scientific push for innovation and the legal system's concern for precedent; between the informal, problem-oriented pragmatism of scientific investigation and the reliance of the legal system on formal rules and procedures; and between the essentially theoretical aspirations of science and the legal system's inevitable orientation to policy.

In Section II, Haack traces the history of scientific expert testimony, noting that

As soon as the U.S. legal system came to rely significantly on scientific experts, complaints arose from all sides: expert witnesses--physicians especially--complained about the way they were treated under cross-examination; and both legal and scientific commentators expressed concern about the rise of what they perceived as a new class of partisan and untrustworthy professional experts. And as the use of scientific experts grew, so did the complaints.

Haack then catalogues some of the various and sundry ways that the Supreme Court and Congress have tried to allay these complaints through a variety of proposed solutions -- Frye v. United States, the Federal Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, General Electric Co. v. Joiner, Kumho Tire Co. v. Carmichael, and the amended Federal Rule of Evidence 702. Nonetheless, Haack concludes.

I don't suppose anyone for a moment imagines that all the problems are now fully resolved. The Daubert ruling is far from unambiguous; its philosophical underpinnings are far from sound; and its articulation of the idea of evidentiary reliability is far from transparent. Moreover, though Justice Blackmun's rhetoric suggested that the intent was to relax the standards of admissibility, in civil cases the upshot seems to have been to restrict them. The Joiner ruling distances itself somewhat from Daubert's muddled philosophy of science--but creates further concerns about the blurring of questions of admissibility with questions of the weight or the sufficiency of evidence; the Kumho Tire ruling finally acknowledges that what really matters is not whether expert testimony is science, but whether it is reliable--yet it seems to leave all the tricky stuff to courts' discretion. And the revised Rule 702, with its emphatic repetition of “reliable,” “reliably,” and “sufficient,” is apt to leave one doubtful whether any verbal formula, by itself, could make it possible to determine whether the data on which a scientific witness bases his opinion are sufficient, or whether his methods are reliable.

So it comes as no surprise that the old complaints about tainted, partial experts and ignorant, credulous attorneys, jurors, and judges are still heard-- and now, also, a new complaint, as would-be scientific witnesses whose testimony has been ruled inadmissible by a court protest the professional insult of being “dauberted out” when a judge deems their proffered testimony unreliable, even "unscientific."

In Section III, Haack explores some of the fundamental differences between the nature of science of the culture of law. For instance,

the core business of science is inquiry. And scientific inquiry is by nature tentative and thoroughly fallibilist; it focuses on the general law or principle rather than on the particular case; its core values are intellectual honesty and willingness to share evidence; its procedures are problem-oriented and informally pragmatic; it is open-ended and forward-looking; and, though it is quite often relevant to policy, it is policy-neutral. So it is hardly surprising that the legal system has had trouble handling scientific testimony, for the legal culture could hardly be more different: adversarial; focused on the specific case; formally procedurally anchored; valuing promptness and finality; relying on precedent; and not only relevant, but also sensitive, to policy.

In Section IV, Haack identifies six ways in which "courts don't do science very well":

(i) Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe.

(ii) Because the legal system aspires to resolve disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in.

(iii) Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; for related reasons, the legal system constitutes virtually the entire market for certain fields of forensic science (or quasi-science), and for certain psychiatric specialties. 

(iv) Because of its adversarial character, the legal system tends to draw in as witnesses scientists who are in a sense marginal--more willing than most of their colleagues to give an opinion on the basis of less-than-overwhelming evidence; moreover, the more often he serves as an expert witness, the more unbudgeably confident a scientist may become in his opinion.

(v) Legal rules can make it impossible to bring potentially useful scientific information to light; and the legal penchant for rules, “indicia,” and the like sometimes transmutes scientific subtleties into formulaic legal shibboleths.

(vi) Both because of its concern for precedent, and because of the desideratum of finality, the legal system has a tendency to inertia, and sometimes lags behind science.

In Part V, Haack asks whether the marriage between science and law can be saved and notes that both sides have tried to adapt somewhat although "such adaptations don't always work out quite as planned." Haack indicates that she toyed with naming this final section "We Can Work it Out" after the Beatles' song but worried about promising more than she could deliver. But looking at the closing lyrics to that song, they actually seem appropriate to Haack's article:

Try to see it my way,
only time will tell if I am right or I am wrong.
While you see it your way.
there's a chance that we may fall apart before too long.
We can work it out,
we can work it out.

So, can law and science work it out? I don't know, but if you want an excellent primer on the subject, be sure to check out Professor Haack's excellent article.

-CM

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.

-CM