EvidenceProf Blog

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

Friday, October 21, 2011

The Hound Baskerville: 3rd Circuit Finds District Court Didn't Err In Failing To Hold Forfeiture By Wrongdoing Hearing

Federa 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.

So, let's say that the prosecution files a motion in limine seeking to introduce statements under this forfeiture by wrongdoing exception. Does the trial court need to hold a pretrial evidentiary hearing before it deems the statements admissible? According to the recent opinion of the Third Circuit in United States v. Baskerville, 2011 WL 4850257 (3rd Cir. 2011), the answer is "no."

In Baskerville

Federal law enforcement officials enlisted the help of Kemo McCray...in their investigation of a New Jersey drug ring that included [William] Baskerville. McCray worked as a paid informant, making numerous controlled purchases of drugs from Baskerville between February and November of 2003. Based upon reports and recordings of his interactions with McCray, Baskerville was eventually arrested and charged with participating in a drug distribution conspiracy. Prior to Baskerville's trial on the drug conspiracy charges at which he was to testify, McCray was shot and killed. The Government then also charged Baskerville with ordering McCray's murder, alleging that through his attorney, Paul Bergrin..., Baskerville directed associates of his to kill McCray

After Baskerville was convicted, he appealed, claiming, inter alia, that the district court erred in not holding a pretrial evidentiary hearing in response to the prosecution's motion in limine seeking to introduce McCray's hearsay statements under Federal Rule of Evidence 804(b)(6). The Third CIrcuit disagreed, concluding that

The District Court did not abuse its discretion by failing to hold a full pretrial hearing because the process it followed adequately protected against improper admission of McCray's statements. The District Court requested a proffer to demonstrate that McCray's statements should be admitted subject to the necessary connection being made at trial. In response, the Government named several witnesses who would offer evidence that Baskerville sought McCray's murder to beat drug charges. Defense counsel only challenged their credibility, not the sufficiency of the showing the prosecution anticipated making at trial. Perhaps if the Government's proffer had given the District Court reason to doubt its ability to actually deliver this proof at trial, an evidentiary hearing may have been in order. However, under these particular circumstances, we cannot say that the District Court abused its discretion by proceeding without one.

The court also noted, "We have upheld this procedure with respect to the admission of co-conspirator statements under FRE 801(d)(2)(E) and find no convincing reason to treat statements like McCray's differently." 

(The court also pointed out that "[a]s the District Court noted, this Court has yet to decide the appropriate evidentiary standard for admitting statements pursuant to FRE 804(b)(6). We decline to decide that issue here. Under either a clear and convincing evidence standard or a preponderance of the evidence standard, the Government's showing sufficed.").



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