EvidenceProf Blog

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

Thursday, November 29, 2012

Unauthorized Transfer, Take 6: Second Circuit Applies Transferred Intent Doctrine Of Forfeiture By Wrongdoing

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for 

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

The opinion of the Second Circuit in United States v. Stewart, 485 F.3d 666 (2nd Cir. 2007), provides yet another example of what I call the transferred intent doctrine of forfeiture by wrongdoing, with the Second Circuit finding that a defendant's intent to render a witness available at one trial transferring to another trial.

In Stewart, Humphrey Stewart was incarcerated and facing a trial in state court based upon an assault charge. Robert Thompson (a/k/a "Ragga") was the alleged victim of this assault, with Stewart allegedly shooting him several times. While Ragga survived this shooting, he was later killed in a drive-by-shooting, with his killer being Emile Dixon. Before this second shooting, Ragga had identified Stewart as the person who initially shot him.

Stewart was later charged with several crimes, including, inter alia, conspiracy to commit murder based upon evidence that he directed Dixon to kill Ragga. At Stewart's federal prosecution, the goverment introduced Ragga's statements identifying Stewart as his shooter pursuant to Federal Rule of Evidence 804(b)(6).

After he was convicted, Stewart appealed, claiming, inter alia, that Rule 804(b)(6) was inapplicable because, even if he directed Dixon to kill Ragga, he did so to prevent him from testifying at a different trial -- the assault trial. The Second Circuit disagreed, finding

that the forfeiture-by-wrongdoing principle made the testimony as to Ragga's statements admissible at Stewart's trial on the present federal charges even though Stewart's efforts had been focused on preventing Ragga from testifying at a different trial, to wit, Stewart's state trial for assault, rather than the trial in the present federal case (which had not yet been initiated). "The text of Rule 804(b)(6) requires only that the defendant intend to render the declarant unavailable 'as a witness.' The text does not require that the declarant would otherwise be a witness at any particular trial.... A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding."



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