November 24, 2012
Unauthorized Transfer Redux: Forfeiture By Wrongdoing & Counter-Factual Thinking
There have been some interesting e-mails over the last couple of days on the Evidence Professor listserv. These e-mails deal with a topic that occupied this blog for about a week back in September: What is the status of the doctrine of forfeiture by wrongdoing in the wake of Giles v. California? Readers will recall that in my essay, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing, I argue that Justice Scalia adopted a conception of forfeiture by wrongdoing that requires intent + causation. In other words, forfeiture applies when a party engages in conduct that (a) is intended to render a prospective witness unavailable; and (b) causes the prospective witness to be unavailable. Meanwhile, I argue that the dissent adopted a conception of forfeiture by wrongdoing that requires causation + benefit. In other words, forfeiture applies when a party engages in wrongdoing that (a) causes a prospective witness to be unavailable; and (b) would benefit the party unless the court allowed for the admission of the prospective witness's hearsay statements.
The professor who started this series of e-mails, however, contends that Justice Scalia's vision of forfeiture by wrongdoing (a) requires intent + causation + benefit; and (b) requires that we engage in counter-factual analysis. In other words, forfeiture by wrongdoing only applies when a party engages in conduct that (a) is intended to render a prospective witness unavailable; (b) causes the prospective witness to be unavailable; and (c) would benefit the party unless the court allowed for the admission of the prospective witness's hearsay statements. And the way that we determine whether (c) is satisfied is to compare what actually happened with what would have happened if the party did not engage in the subject wrongdoing. In this post, I will use a hypothetical to explain why I disagree with this reasoning.
I will start by saying that I was initially in the same boat as the listserv professor. Back on September 22nd, I posted an entry about United States v. Gray, 405 F.3d 227 (4th Cir. 2005). In Gray, Josephine Gray allegedly killed Robert Gray to prevent him from testifying against her at an assault trial and then was charged with his murder. The question is Gray was whether forfeiture by wrongdoing applied to allow for the admission of Robert's hearsay statements at the murder trial, and the Fourth Circuit answered this question in the affirmative. In the post, I engaged in counter-factual analysis to question this result:
So, does this analysis make sense? If Josephine were being prosecuted for assault, the answer is a clear "yes." Without the murder, Robert could have testified against her at the assault trial, which could have led to her conviction and all of the direct and collateral consequences that result from a conviction. Therefore, if Josephine killed Robert and forfeiture did not apply, she would [have] profited from her misconduct at the assault trial. In other words, she would be in a better position than a similarly situated defendant who did not kill her assault victim, who could then testify against her at the assault trial.
But what about at Josephine's murder trial? Well, this gets back to Josephine's argument. That murder trial could not have existed but for Josephine's act of killing Robert. This is why Josephine's act of killing Robert would not have resulted in forfeiture if there were no assault trial pending at the time of the murder. This is the clear message from Giles v. California. For forfeiture to apply, at a minimum, there must be an intent to render the victim unavailable to testify at some existing or anticipated trial.
But if there could not have been a murder trial without the killing of Robert, how could Josephine profit from the killing at her murder trial? A victim can never testify at a murder trial because murder is a result crime, meaning that the victim has to be dead for the prosecution to proceed. Without the victim's death, the defendant could only be prosecuted for attempted murder. So, could Josephine be in a better position than any other murder defendant? The answer seems to be that she was not because a murder victim can never testify.
Of course, readers know that I later dug back into Giles and reached a different conclusion. And here is a hypothetical that I think does a good job of explaining why that different conclusion makes sense:
Dan robs Vince, with William witnessing the crime. Vince goes to the police and tells them that Dan robbed him. Dan is arrested and charged with robbery. Dan, knowing that William could be a witness against him, attacks William. William is taken to the hospital and, after hours of treatment, is in stable condition. He speaks with Police Officer Peters and tells him, "I'll be honest with you. I hate Vince, and I was going to take the witness stand and say that it wasn't Dan who robbed him just to spite Vince. But after what Dan did to me, there's no way I'm going to lie. I saw Dan rob Vince, and Dan tried to kill me today because of what I saw." Later that night, William's condition worsens, and he dies. So, at Dan's robbery trial, should William's statement to Peters be admissible?
Now, if the doctrine of forfeiture by wrongdoing requires the party to benefit in the absence of its application, the doctrine would not apply in the above hypothetical. And that is because, if we engaged in counter-factual thinking, the alternate universe in which Dan did not engage in wrongdoing would feature William rendering exculpatory testimony at trial. Therefore, Dan would not benefit from his wrongdoing even without application of the doctrine of forfeiture by wrongdoing. But if all that forfeiture requires is intent + causation, the doctrine would apply in the above hypothetical because Dan engaged in wrongdoing that (a) was intended to render William unavailable at trial; and (b) caused William to be unavailable at trial. Furthermore, under this conception, Dan's intent to render William unavailable could transfer from he robbery trial to the murder trial, making the doctrine of forfeiture by wrongdoing applicable at Dan's trial for murdering WIlliam by using transferred intent theory.
This analysis also supports the outcome in Gray, and I think that Justice Scalia endorses this analysis in Giles. In Giles, Scalia notes that forfeiture by wrongdoing applies "when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony." This makes sense under an intent + causation analysis, but it doesn't make sense under an intent + causation + benefit analysis that requires counter-factual thinking.
And this is exactly what I think that Justice Scalia does in Giles. Here's the relevant portion of his opinion:
The State and the dissent note that common-law authorities justified the wrongful-procurement rule by invoking the maxim that a defendant should not be permitted to benefit from his own wrong....But as the evidence amply shows, the "wrong" and the "evil Practices" to which these statements referred was conduct designed to prevent a witness from testifying. The absence of a forfeiture rule covering this sort of conduct would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them.
The way I read this passage, Scalia is saying that forfeiture by wrongdoing is not preventing a defendant from benefiting from his own wrong; instead, it is about deterring parties from engaging in conduct designed to prevent a witness from testifying. And what better way is there to achieve that deterrence than by finding that a defendant's intentional wrongdoing renders the doctrine applicable both at the trial at which the witness was expected to testify and at the defendant's trial for murdering the witness?
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I agree CM.
The flaw in the benefit test is that it assumes that the concern about FBW arises out of a concern about equity between the parties. It's doesn't. It arises from a concern about protecting the integrity of the judicial process. In that regard it is conceptually similar to retaliation in the EEO context. More than one boss has found himself baited with a false EEO claim only to be hammered when he retaliates. If the person intended to suborn the judicial process and actually did so then who cares if he or she benefited or not in the same way that no one cares if the underlying EEO claim had merit. The system was harmed and that's enough to impose a penalty.
Posted by: Daniel | Nov 24, 2012 5:57:56 PM