EvidenceProf Blog

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

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Saturday, September 15, 2012

Unauthorized Transfer?, Take 4: State v. Supanchick & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

In a comment to a prior post, a reader ask that I consider State v. Supanchick, 263 P.3d 378 (Or.App. 2011), which is currently on appeal to the Supreme Court of Oregon. Supanchick deals with a lot of the issues that I have been discussing over the last week or so, including whether transferred intent applies to forfeiture by wrongdoing and whether the defendant's sole or primary purpose must be to render the declarant unavailable.

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September 15, 2012 | Permalink | Comments (4) | TrackBack (0)

Announcement For The The Central States Law Schools Association 2012 Scholarship Conference

Annual Scholarship Conference

October 19-20

Cleveland-Marshall College of Law

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress.

The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. 

To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at Missy.Lonegrass@law.lsu.edu by September 22, 2012. Any late submissions will be considered on a space available basis only.   

For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers.  To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at ely001@uark.edu.

In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools.  If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at cld3@uakron.edu.

For more information about CSLSA, visit our website at http://cslsa.us/.

September 15, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, September 14, 2012

That's Just Wrong: Court Of Appeals Of Texas Finds Forfeiture By Wrongdoing Despite No Direct Evidence Of Threat

Sticking with the forfeiture theme from the last several days, the recent opinion of the Court of Appeals of Texas, Austin, in Garcia v. State, 2012 WL 3795447 (Tex.App.-Austin 2012), raises an interesting question: Can there be forfeiture by wrongdoing when the State concedes that there was no direct evidence that the defendant made a direct threat to a witness not to testify? According to the court, the answer is "yes."

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September 14, 2012 | Permalink | Comments (2) | TrackBack (0)

Thursday, September 13, 2012

My New Essay: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing

Well, after posts ther last several days about the Drew Peterson conviction and the transferred intent doctrine of forfeiture by wrongdoing, I finally put my thoughts together in essay entitled, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing. That essay is now available on SSRN. Here is the abstract:

On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson.  Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution.  In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.

The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context:  When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial).  But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial?  This essay contends that the Supreme Court’s opinion in Giles v. Califonria endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit

-CM

September 13, 2012 | Permalink | Comments (15) | TrackBack (0)

Wednesday, September 12, 2012

Unauthorized Transfer, Take 3: Justice Scalia's Giles Opinion & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Justice Scalia: I had thought that the common law rule is that you have to have rendered the...intentionally rendered the witness unavailable with regard to the particular trial that’s before the court.

Not rendering the witness unavailable for some other litigation.

Mr. Burkhardt: That was--

Justice Scalia: Do you know of any case where it was some other litigation that--

Mr. Burkhardt: --No.

Justice Scalia: --I didn't think so.

Mr. Burkhardt: No.

That is the common law

Exchange between Justice Scalia and petitioner's attorney Marilyn Burkhardt during oral argument in Giles v. California.

Based on this exchange, you might think that Justice Scalia, who wrote the plurality opinion in Giles, believes that forfeiture by wrongdoing is simply a witness tampering rule and would not support the transferred intent doctrine of forfeiture by wrongdoing applied in the prosecution of Drew Peterson.

But the Justice's opinion reveals something quite different. Here's footnote 6 of Justice Scalia's opinion:

The dissent identifies one circumstance—and only one—in which a court may determine the outcome of a case before it goes to the jury: A judge may determine the existence of a conspiracy in order to make incriminating statements of co-conspirators admissible against the defendant under Federal Rule of Evidence 801(d)(2)(E). Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), held that admission of the evidence did not violate the Confrontation Clause because it "falls within a firmly rooted hearsay exception"—the test under Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the case that Crawford overruled. In fact it did not violate the Confrontation Clause for the quite different reason that it was not (as an incriminating statement in furtherance of the conspiracy would probably never be) testimonial. The co-conspirator hearsay rule does not pertain to a constitutional right and is in fact quite unusual.  

We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent.

Yes, Justice Scalia said what he said during oral argument, but...how can we read this footnote as anything else than an endorsement of the transferred intent doctrine of forfeiture by wrongdoing. Justice Scalia is clearly saying that when a defendant kills a witness to prevent him from testifying at Trial A (e.g., a robbery trial), the doctrine of forfeiture by wrongdoing might apply to allow the prosecution to admit the witness's statements at Trial B (the defendant's trial for murdering witness).

Moreover, I think that Justice Scalia's reasoning might actually make some sense, contrary to my prior post on the issue. Why? Well, I'm tapping out an essay on the issue that I hope to have finished by early next week. 

-CM

September 12, 2012 | Permalink | Comments (6) | TrackBack (0)

Unauthorized Transfer, Take 2: People v. Banos & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Yesterday, I posted an entry questioning the legitimacy of a transferred intent doctrine of forfeiture by wrong. A commenter then responded by asking for my thoughts on People v. Banos, 100 Cal.Rptr.3d 476 (Cal.App. 2 Dist. 2009). Here's my post on Banos, which I follow with a post on what I think is the key portion of Justice Scalia's opinion in Giles v. California.

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September 12, 2012 | Permalink | Comments (2) | TrackBack (0)

Tuesday, September 11, 2012

Unauthorized Transfer?: Should Courts Apply A Transferred Intent Doctrine Of Forfeiture By Wrongdoing?

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Over the last few days, I have posted several entries about the doctrine of forfeiture by wrongdoing. In the comments sections of these posts, there has been a lively debate about whether the Supreme Court has implicitly enorsed or repudiated a transferred intent doctrine of forfeiture by wrongdoing and whether transferred intent makes sense in the context of forfeiture. The key case often cited in support of the transferred intent doctrine is United States v. Gray, 405 F.3d 227 (4th Cir. 2005), and I have always taken that case as gospel on the subject. But, upon further review, I'm not sure that the Fourth Circuit's opinion holds water.

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September 11, 2012 | Permalink | Comments (11) | TrackBack (0)

Monday, September 10, 2012

Forfeit Loss: 8th Circuit Finds Forfeiture By Wrongdoing Applies To GF Who Aided & Abetted in Killing Witnesses Against BF

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Prompted by the recent Drew Peterson verdict and the revelation that the conviction was secured in large part due to application of the forfeiture by wrongdoing doctrine, I have posted a couple of entries (here and here). In turn, these posts have led to some animated comments that have led me to conduct a good deal of research into the forfeiture by wrongdoing and whether and to what extent the concept of transferred intent applies to the doctrine. The opinion of the Eighth Circuit in United States v. Johnson, 495 F.3d 951 (8th Cir. 2007), predates the Supreme Court's landmark forfeiture opinion in Giles v. California by about a year, but it presents an interesting question that I hadn't seen addressed before. Can a defendant's intent to render a witness unavailable at somebody else's trial transfer to the defendant's subsequent murder trial? According to the Eighth Circuit, the answer is "yes."

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September 10, 2012 | Permalink | Comments (6) | TrackBack (0)

Sunday, September 9, 2012

Common Law, Take 2: Were The Hearsay Statements In Drew Peterson's Trial Admitted In Compliance With Giles?

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

So, as established by my previous post, at the Drew Peterson trial, the prosecution admitted statements by Drew Peterson's third and fourth wives pursuant to the common law doctrine of forfeiture by wrongdoing and not "Drew's law." Accordingly, if Peterson is going to be successful on appeal, it will be based upon the statements being inadmissible under the common law doctrine as interpreted by the Supreme Court in Giles v. California and not based upon the statements being inadmissible under "Drew's law" (and not based upon the unconstitutionality of "Drew's law"). So, is Peterson likely to be successful?

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September 9, 2012 | Permalink | Comments (11) | TrackBack (0)