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Univ. of South Carolina School of Law

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Sunday, September 30, 2012

Forfeit Victory, Take 2: Court Of Appeals Of Michigan Finds Statements From DV Complaints Improperly Admitted Under Forfeiture Doctrine

Following up on yesterday's post about the possibility of a different rule for domestic violence cases under the doctrine of forfeiture by wrongdoing, I present to you the recent opinion of the Court of Appeals of Michigan in People v. Logan, 2012 WL 3194222 (Mich.App. 2012).

In Logan

Defendant and the victim had a son in common and shared custody of him, but were no longer in a dating relationship. At approximately 2:00 p.m. on April 11, 2010, the victim drove to defendant's house in order to pick up their son. Defendant was sitting on the front porch with a loaded gun in his pocket when the victim arrived. The victim parked her car, and exited, speaking to defendant from a distance. After a short period of time, defendant's mother exited the house, with the couple's son in her arms, intending to bring the child to the victim. Defendant pushed past his mother and walked toward the victim. As he approached her, defendant drew his gun and shot the victim four times. The victim was able to run to a neighbor's house, and defendant fled the scene. The victim died in the hospital several days later. At trial, defendant acknowledged that he shot and killed the victim, but claimed that he blacked out and did not have the requisite intent for first-degree murder. The defense's sole argument was that defendant lacked premeditation and that the jury should convict defendant of the alternate lesser offense of voluntary manslaughter or second-degree murder.

At trial, the prosecution used the doctrine of forfeiture by wrongdoing to introduce into evidence "the victim's written statements from her previous domestic violence complaints and petitions for personal protection orders...." 

After he was convicted of first-degree premeditated murder and related charges, the defendant appealed, claiming, inter alia, that the doctrine of forfeiture by wrongdoing was inapplicable because he did not kill the victim with the intent of rendering her unavailable at trial. The Court of Appeals of Michigan agreed, concluding that

Although a defendant may forfeit his right to confrontation when he engages in conduct that causes the declarant to be unavailable, the United States Supreme Court has made it clear that the forfeiture by wrongdoing doctrine requires that defendant's conduct be intended or "designed to prevent the witness from testifying."...The prosecution did not argue and the record fully supports that defendant did not murder the victim for the purpose of preventing her from testifying. Under Giles, defendant did not forfeit his right to confrontation and we conclude the admission of the victim's written statements violated his Confrontation Clause rights.

Nonetheless, the court deemed the admission of the subject statements harmless error and thus affirmed the defendant's conviction.



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Colin: I am glad you posted this case and yesterday's case because they both reinforce the notion that in order for the forfeiture doctrine to apply, it must be proven, by a preponderance of evidence, that the defendant acted with intent of making the would be witness unavailable for trial vs. some other purpose (jealousy, anger, rage, etc.). It is a subtle, but very important point.

I keep hardening back to the Drew Peterson case and continue to posit that the trial court and court of appeal missed this point. More specifically, I posit the courts did not even engage in an appropriate analysis as to why Peterson ostensibly killed his wives. Unlike this case, where the admission of inadmissible evidence was deemed harmless error, such is not the case in the Peterson matter. When interviewed, the jury foreman was most clear that but for the admission of the hearsay statements that were allowed in by the forfeiture doctrine, we most likely would not have found Peterson guilty.


Posted by: Barry | Sep 30, 2012 10:31:14 AM

"by a preponderance of evidence, that the defendant acted with intent of making the would be witness unavailable for trial vs. some other purpose (jealousy, anger, rage, etc.). It is a subtle, but very important point."

I agree with this. But what I think the courts (and perhaps you too Barry) are refusing to acknowledge is that difficult posture that domestic violence presents in this type of cases. Stated in an abstract type of way I don't think that DV victims fall into a special class that make them exempt from an otherwise legitimate Confrontation claim. However, I do think they fall in to a special type of case that is an exception to the norm for Confrontation clause cases.

This is the point that the Souter concurrence drives home. The verbiage about "classic cases of domestic violence" isn't a comment about the logic of the confrontation clause; it's a comment about the logic of human relationships. Intimate relationships are fundamentally different than the business relationships courts are used to dealing with; family law isn't place a lot of justices feel comfortable going. If death is different, so is love.

Of course defendants are going to claim they killed out of jealousy or some other emotion precisely because that type of statement is plausible in a DV where it wouldn't be plausible in other types of witness tampering cases. Courts should understand that such statements are often pretexual. This is why I've argued for a totality of the circumstances test. The test shouldn't be what was the mens rea at the exact second the defendant pulled the trigger; that's not how abuse works or abusers think. In other words, in a DV case I'd argue that what counts as evidence is evaluated based upon the *entire history of the relationship between the two parties*. In a classic case of DV the perp had been intending to silence the victim all along and that's what counts; not the mens rea at the time of the crime.

Posted by: Daniel | Sep 30, 2012 2:07:22 PM

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