EvidenceProf Blog

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

Thursday, March 13, 2008

Article of Interest: Ralph Ruebner and Eugene Goryunov's "Loss of Sixth Amendment Confrontation Rights: Forfeiture By Voluntary Wrongful Conduct"

It's hard to imagine a more topical article than "Loss of Sixth Amendment Confrontation Rights: Forfeiture Triggered By Voluntary Wrongful Conduct," the new article by my colleague Ralph Ruebner and law student Eugene Goryunov.  The Supreme Court has granted certiorari in Giles v. California, a case that addresses the following issue: Does a defendant forfeit his Confrontation Clause objection to the introduction of a prospective witness' hearsay statements when the defendant rendered the witness unavailable to testify at trial, but the prosecution cannot prove that the defendant specifically intended to render the witness unavailable?  Ruebner and Goryunov's article addresses that same question and argues "that a showing of intent to prevent the testimony of an unavailable out-of-court declarant is not constitutionally required in determining whether the accused has forfeited his or her Sixth Amendment right to confrontation."

(For an illustration of how forfeiture by wrongdoing cases work with and without the intent requirement, you can see my posts onthe Willard McCarley murder trial in Ohio and the Mark D. Jensen murder trial in Wisconsin).

In Section II, the article notes that neither the English nor the American common law forfeiture by wrongdoing doctrine recognized an intent requirement.  After reviewing a number of cases applying this doctrine, the authors conclude that "[t]hese common law cases clearly demonstrate that the standard for admissibility of evidence by application of the forfeiture rule focused exclusively on the voluntary wrongful conduct of the accused in causing the unavailability of the live in-court testimony of the out-of court declarant."  They contend that these cases merely focused on the causal link between the accused's actions and the declarant's unavailability, not upon the intent of the accused.

In Section III, the authors start by arguing that while some have contended that when the Supreme Court first recognized the forfeiture by wrongdoing doctrine in Reynolds v. United States, 98 U.S. 145 (1878), it incorporated an intent requirement, the Court in fact incorporated no such requirement and instead adhered to common law precedent.  They next point out that some have mistakenly included an intent requirement in the forfeiture by wrongdoing doctrine by conflating the concepts of "waiver" and "forfeiture," even though they are two distinct concepts.  Finally, they assert that the Supreme Court has recently re-affirmed the common law conceptualization of the forfeiture by wrongdoing doctrine in its recent opinions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006).

In Section IV, they note the split among courts which caused the Supreme Court to grant cert in Giles.  While some courts, such as the Supreme Court of California in Giles, have found that no intent is required for application of the forfeiture by wrongdoing doctrine, other courts, such as the Supreme Court of Illinois, have made intent the sine qua non for its application.  In Section V, they authors argue there are two distinct forfeiture by wrongdoing doctrines:  (1) the more limited statutory doctrine contained in Federal Rule of Evidence 804(b)(6), which contains an intent requirement, and (2) the Sixth Amendment Forfiture doctrine developed from the common law, which does not contain an intent requirement.  Ruebner and Goryunov conclude that courts requiring a showing of intent for application of the Sixth Amendment doctrine are improperly conflating the two doctrines and thus argue that the Supreme ourt should affirm the opinion on the Supreme Court of California in Giles.



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