Open In Case Of My Death: Wisconsin Court To Apply Controversial Version Of Forfeiture By Wrongdoing Doctrine in Mark D. Jensen Trial

The murder trial of Mark D. Jensen in Wisconsin is a trial which national media outlets think will make good TV; it also appears to be a trial that will be decided based upon an unprecedented evidenty ruling.  Jensen has been charged with murdering his wife, Julie, with prosecutors claiming that he poisoned her with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend, now his wife.  The prosecution has supported this theory with, inter alia, evidence of alleged web searches on the topic of poisoning discovered on the Jensen's computer.  Defense counsel has countered that Julie was depressed and disturbed and conducted the web searches so that she could kill herself and frame her cheating husband.  CourtTV's successor, TruTV, is broadcasting the entire trial live, and CBS will air a story on the trial on "48 Hours Mystery" weeks after it ends.

The evidentiary issue revolves around the fact that, before her death, Julie gave her neighbor a note that said that Jensen should be the first suspect if she died.  After a complicated pretrial history, Jensen was eventually able to secure an evidentiary ruling which, inter alia, deemed the letter inadmissible because its admission into evidence would violate his rights under the Confrontation Clause pursuant to the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004). 

This ruling came from the Circuit Court judge hearing the case after he rejected the prosecution's argument that Jensen had waived his Confontation Clause argument pursuant to the forfeiture by wrongdoing doctrine.  This doctrine, which exists under Federal Rule of Evidence 804(b)(6) and several state evidentiary codes, indicates that "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" is admissible, in effect waiving the party's hearsay and Confrontation Clause exceptions.  Typically, it must be proven that the party procured the prospective witness' unavailability by a prepondernace of the evidence for the doctrine to apply.  There is, however, no statutory forfeiture by wrongdoing doctrine in Wisconsin, and, before the Jensen case, no Wisconsin court had applied it.

This all changed when the prosecution appealed the Circuit Court judge's decision to the Supreme Court of Wisconsin.  In its decision in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), the Court not only adopted the forfeiture by wrongdoing doctrine, but also applied in a more expansive manner than any previous court.      

Typically, the forfeiture by wrongdoing doctrine applies in one scenario:  a defendant commits some crime and then kills or otherwise makes unavailable some witness who could have been called to testify against him at trial. See United States v. Lentz, 282 F.Supp.2d 399, 426 (E.D. Va. 2002).  If that prospective witness made statements before the defendant procured his unavailability, it is irrelevant (1) that the defendant cannot confront him at trial, and (2) that the statements might have constituted inadmissible hearsay. See id.  The forfeiture by wrongdoing doctrine deems the statements admissible to ensure that the defendant does not benefit from his wrongdoing by .

Conversely, before the Jensen case, courts categorically had found that the doctrine did not apply in the situation presented to the Supreme Court of Wisconsin:  the prosecution trying to introduce a murder victim's statements against her alleged murderer on the ground that the murderer procured the victim's unavailability by killing him. See id.  Courts have raised three potential problems with applying the doctrine to this fact pattern:

     (1) Doing so "asks the Court to find Defendant guilty of [the subject] killing...by a preponderance of the evidence in order to allow the evidence to be admitted to prove Defendant [committed the subject] kill[ing] beyond a reasonable doubt." To so apply the doctrine "would be to deprive a defendant of his right to a jury trial and allow for a judge to preliminarily convict a defendant of the crime on which he was charged." Id.

     (2)  Doing so swallows up the narrowly drawn traditional dying declaration hearsay exception. See People v. Maher, 677 N.E.2d 728, 731 (N.Y. 1997).

     (3)  Application of the doctrine requires the specific intent by the party to prevent the prosepctive witness from testifying, and such intent cannot exist when the act procuring the witness' unavailability is the same act for which the party was charged. See State v. Romero, 156 P.3d 694 (N.M. 2007).

In Jensen, however, the Court sided with those courts which have found that specific intent is not required for the doctrine to apply.  More importantly, the Court also adopted the "reflexive forfeiture principle" created by Professor Richard D. Friedman, which states that the doctrine should apply in this latter scenario.  According to Friedman, "[a] court should not decline to decide the predicate question, for evidentiary purposes, simply because the same question must also be decided in making the bottom-line determination of guilt."

This is the wrong forum to address all of these issues or lay out Friedman's analysis in full, but I can briefly touch upon the dying declaration argument.  Under Federal Rule of Evidence 804(b)(2), "[i]n a prosecution for homicide or in a civil action or proceeding, a statement made by a [now unavailable] declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death" is admissible as a dying declartion.  In order for this exception to apply, the prosecution must preliminarily prove the elements of the exception, typically by a preponderance of the evidence.  The reason why some courts believe that application of the "reflexive forfeiture principle" swallows up the dying declaration exception is that allows any murder victim's statements to be admissible, regardless of whether the statements were made while the victim believed that his death was imminent.

These courts, however, are wrong.  A court can only apply the forfeiture by wrongdoing doctrine if it can prove that the defendant killed the prospective victim by a preponderance of the evidence.  Let's take a case where the defendant, John, allegedly murders the victim, and there is scant evidence of John's guilt besides the victim's statements to EMTs as he is dying that John shot him in the stomach.  The prosecution might not be able to prove John's guilt by a preponderance of the evidence, making the forfeiture by wrongdoing doctrine inapplicable, but they may be able to prove that the victim thought that his death was imminent and that his statement concerned the cause of his death, making his statement admissible as a dying declaration.

Some might say that a finding that a statement concerns the "cause or circumstances" of the victim's death is akin to finding that the defendant was guilty.  In other words, some might say that a court's finding that the victim's statement that John killed him was a statement about the cause of his death would be akin to saying that John was guilty.  I disagree and think that such a finding merely means that the court finds that the victim believed the defendant killed him.  If I am wrong in this analysis, however, such reasoning disposes of the first concern listed by courts opposing the "reflexive forfeiture principle" because courts already preliminarily find defendants guilty in admitting dying declarations.

In any event, I would say that the first concern is inapposite because when defendants are charged with conspiracy, courts freuqently preliminarily decide the issue of whether the defendants are guilty of conspiracy in deciding whether their statements are admissible as co-conspirator admissions pursuant to Federal Rule of Evidence 801(d)(1)(E) and state counterparts.

-CM