Friday, June 21, 2013
I May Be Wrong: Supreme Court of Michigan Finds Forfeiture by Wrongdoing Didn't Apply in Sexual Abuse Case
Michigan Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for
A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
If a criminal defendant forfeits his objection to hearsay under Rule 804(b)(6), he also forfeits his objection that the admission of the hearsay violates the Confrontation Clause. In People v. Burns, 2013 WL 3020917 (Mich. 2013), the Supreme Court of Michihgan found that the defendant forfeited neither. Why?In Burns,
On August 18, 2010, a bible school teacher (Gonzales) filed a police report concerning disclosures made to her the day before by a four-year-old girl (CB). The disclosures suggested that CB had been sexually abused by defendant, [David Burns,] her father.
At trial, when the prosecutor tried to elicit testimony from CB,
CB left the witness chair, hid under the podium, refused to answer questions asked by the prosecutor, indicated that she would not tell the truth, stated that she was fearful of the jury, and expressed a desire to leave the courtroom.
The prosecutor argued, and the court agreed, that defendant had rendered CB unavailable to testify through his own wrongdoing, and the court admitted Gonzales's testimony under MRE 804(b)(6). The trial court based its ruling on a video recording of CB's interview with the forensic interviewer: When asked if defendant had said anything during the alleged abuse, CB stated that defendant told her "not to tell," and that "[defendant] didn't want me to tell nobody" or else she would "get in trouble." The trial court determined that defendant's instructions, as recounted by CB, were sufficient to find forfeiture by wrongdoing.
The trial court also determined that CB was unavailable to testify, a condition for admissibility under MRE 804(b)(6), "because, among other things, of her infirmity, her youth, to be able to testify here in court and the fear, frankly, that she has of testifying here in court."
The court thereafter allowed Gonzales to testify, Burns was convicted, and then Burns later appealed, claiming that this evidentiary ruling was erroneous.
The Supreme Court of Michigan found that hearsay is only admissible under Michigan Rule of Evidence 804(b)(6) if the prosecution proves three elements by a preponderance of the evidence:
(1) that the defendant engaged in or encouraged wrongdoing; (2) that the wrongdoing was intended to procure the declarant's unavailability; and (3) that the wrongdoing did procure the unavailability.
Under the first factor, the Supreme Court of Michigan "assume[d] that the trial court correctly found that defendant did, in fact, engage in wrongdoing." Under the second factor, the court found that
Defendant immediately left the family home after Gonzales reported the suspected abuse. He had no contact with CB whatsoever once the conduct was reported, and nobody else attempted on his behalf to influence CB not to testify. There is no evidence or allegation that defendant attempted to influence CB directly or indirectly apart from the contemporaneous statements at issue.
The timing of defendant's alleged wrongdoing is also relevant to our conclusion that the record does not compel a finding that defendant had the specific intent to procure CB's unavailability. Defendant's instruction to CB not to report the abuse was made before there was any indication that the abuse had been reported or discovered. While the timing of the wrongdoing is by itself not determinative, it can inform the inquiry: a defendant's wrongdoing after the underlying criminal activity has been reported or discovered is inherently more suspect, and can give rise to a strong inference of intent to cause a declarant's unavailability.
Without the guidance of an explicit trial court finding to shed light on the record, defendant's contemporaneous statements to CB are as consistent with the inference that defendant's intention was that the alleged abuse go undiscovered as they are with an inference that defendant specifically intended to prevent CB from testifying. Further, assuming defendant knew that CB would not disclose the abuse because of his directive, that knowledge is not necessarily the equivalent of the specific intent to cause CB's unavailability to testify as required by MRE 804(b)(6). Attempting to equate the two in every circumstance improperly assumes that a defendant's knowledge is always the same as a defendant's purpose. In other words, whether a person in defendant's position would reasonably foresee that the wrongdoing might cause CB's unavailability is separate and distinct from whether defendant intended to procure the declarant's unavailability to testify at trial. We interpret the specific intent requirement of MRE 804(b)(6)—to procure the unavailability of the declarant as a witness—as requiring the prosecution to show that defendant acted with, at least in part, the particular purpose to cause CB's unavailability, rather than mere knowledge that the wrongdoing may cause the witness's unavailability. Without the aid of a specific factual finding from the trial court in this case, we are unable to determine from the record whether defendant had the requisite specific intent.
The court kind of loses me in this analysis. First, I'm not sure why the fact that Burns failed to follow up on his initial statements is relevant. As the court notes, Burns had no contact with CB after the alleged abuse was reported for obvious reasons, so he lacked the opportunity for further wrongdoing. Moreover, assuming that Burns thought that his initial statements were sufficient to prevent CB from testifying, why would he follow up on them?
Second, I don't know why statements made after criminal activity has been reported or discovered are inherently more suspect than prior statements? If Dan attacks Vince and then says, "If you report this to anyone, I will kill you," that statement seems to constitute potential forfeiture by wrongdoing just as much as a statement after the attack has been reported. Indeed, in Giles v. California, the Supreme Court notes that attempts to isolate the victim and prevent the victim from reporting a crime can easily constitute forfeiture by wrongdoing.
Third, I find the court's distinction between knowledge and intent to be bizarre. Knowledge is conscious awareness that a particular result -- CB not testifying -- is practically certain to occur. Intent is the conscious objective/goal that a particular result -- CB not testifying -- os practically certain to occur. Now, it is true that knowledge doesn't always equal intent. We can use collateral damage theory here. If someone in the military orders the bombing of a weapons convoy, he might know that the bombing will kill civilians by not intend for that result to occur. In this sense, the civilians are "collateral damages" and not intended victims of the bombing.
But, in Burns, that does not seem to be the case at all. If Burns knew that his statements would lead to CB not testifying, it doesn't seem like much of a logical leap to conclude that this was his intent as well.
Finally, under the third factor, the court concluded as follows:
We also conclude that the trial court's application of the third element required to satisfy MRE 804(b)(6)—that defendant's conduct in fact caused CB's unavailability— undermines its conclusion that the hearsay testimony was admissible pursuant to MRE 804(b)(6). As the trial court recognized in declaring CB unavailable, her inability to testify was based on her "infirmity, her youth," and her fear of testifying in open court. The trial court did not include defendant's wrongdoing among the reasons for CB's inability to testify. In fact, the objective evidence about defendant's alleged wrongdoing would tend to support the conclusion that defendant's wrongdoing did not cause CB's inability to testify. Defendant allegedly directed CB to "not tell," yet she did not follow that direction. Instead, she told the bible school teacher, the forensic interviewer, and the sexual-assault nurse examiner. Moreover, at one point during an interview, CB stated that defendant had told her "not to tell" anybody because she would "get in trouble," but then immediately acknowledged that she “won't get in trouble” for telling. Because the trial court's findings about the reasons for CB's unavailability did not include defendant's wrongdoing and are not clearly erroneous, we conclude that the prosecutor has not satisfied the causation element of MRE 804(b)(6).
The way I see it, this was the much stronger argument for finding that forfeiture by wrongdoing did not apply.
(Hat tip to Gregory Jones for the link)