EvidenceProf Blog

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

Sunday, January 9, 2011

Open In Case Of My Death, Take 4: Court Of Appeals Of Wisconsin Grapples With Forfeiture By Wrongdoing In Jensen Appeal

I have written three posts on this blog (here, here, and here) about the case of Mark Jensen. You might recall that this was the case where Mark Jensen was accused of  poisoning his wife Julie with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend.  The key evidentiary issue in the case concerned the admissibility of a note that the wife gave to a neighbor which indicated that Mark should be the first suspect if she died.  This evidentiary issue eventually reached the Supreme Court of Wisconsin, and the majority opinion in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), held that the note was admissible under the forfeiture by wrongdoing doctrine, which allows for hearsay statements by prospective witnesses to be admissible when the defendant rendered the prospective witness unavailable to testify at trial

Jensen was thereafter convicted, but the United States Supreme Court subsequently issued Giles v. California, which held that the forfeiture by wrongdoing doctrine does not apply when the defendant merely renders a prospective witness unavailable to testify against him at trial; instead, the doctrine applies "only if the defendant has in mind the particular purpose of making the witness unavailable." Therefore, Jensen appealed, with the Court of Appeals of Wisconsin recently resolving that appeal in State v. Jensen, 2010 WL 5371177 (Wis.App. 2010).

One of the State's arguments on appeal was that there was a pending family court action against Mark Jensen at the time of his wife's murder and

that post- Giles, "logic" and case law "compel the conclusion that if [the state can prove] one reason Jensen killed Julie was to prevent her testimony in a family court action, then he forfeited the right to confront her at his murder trial." 

The court, however,

decline[d] the State's invitation to adopt a broad interpretation of the post-Giles forfeiture by wrongdoing exception and le[ft] for another day whether Giles should be read to permit testimonial evidence when the state can establish by a preponderance of the evidence that the defendant sought to prevent the victim from testifying in any court proceeding.

This was because the court found that other significant evidence of Jensen's guilt made the admission of the letter harmless error, if it was erroneous at all.

But was the State right? In a previous post, I argued that Giles supports exactly the transferred intent theory of forfeiture by wrongdoing asserted by the State, and in a later post, I cited to a California opinion applying such a transferred intent theory. It seems to me that such a theory makes sense given the language of Giles, but we will have to wait for another day to find out whether Wisconsin courts agree.



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