EvidenceProf Blog

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

Saturday, September 29, 2012

Forfeit Victory: Supreme Court Of Kansas Refuses State's Attempt To Carve Out Different Forfeiture Rule For DV Cases

As I have noted before, in Giles v. California, the Supreme Court made several references to the interplay between the doctrone of forfeiture by wrongdoing and domestic violence. In their concurring opinion, Justices Souter and Ginsburg noted that

Examining the early cases and commentary, however, reveals two things that count in favor of the Court's understanding of forfeiture when the evidence shows domestic abuse. The first is the substantial indication that the Sixth Amendment was meant to require some degree of intent to thwart the judicial process before thinking it reasonable to hold the confrontation right forfeited; otherwise the right would in practical terms boil down to a measure of reliable hearsay, a view rejected in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The second is the absence from the early material of any reason to doubt that the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say, in a fit of anger. 

Meanwhile, in his plurality opinion, Justice Scalia pointed out that

Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. This is not, as the dissent charges,...nothing more than "knowledge-based intent."

So, in Giles, did the Court "carve out a different rule for domestic violence cases", as the State argued in State v. Belone, 2012 WL 4227635 (Kan. 2012)? According to the Supreme Court of Kansas, the answer is "no."

In Belone, Christopher Belone was convicted of second-degree murder, kidnapping, and other crimes related to the beating death of Linda Begay, his long time companion. Prior to trial, the State filed a motion requesting that the court find that statements that Begay made in the wake of the beating to her friend Keith Bowers, the emergency room staff, and investigating officers were all admissible at trial under the doctrine of forfeiture by wrongdoing. The district court initially found that these statements were inadmissible but ultimately reversed itself and deemed the statements admissible.

Belone thereafter filed a motion for a new trial, claiming, inter alia, that these statements were not admissible under the doctrine of forfeiture by wrongdoing. The district court denied the motion, and the Court of Appeals of Kansas later agreed.

The Supreme Court of Kansas, however, reversed and remanded for a new trial. The court's opinion isn't that verbose, yet it seems clear that there were three prior instances of domestic violence by Belone against Begay, there weren't any outstanding proceedings concerning these three prior instances at the time of Begay's death, and Belone allegedly killed Begay due to jealousy.

According to the State, this was enough for the doctrine of forfeiture by wrongdoing to apply. According to the State, "the prior three instances of domestic abuse and the evidence presented in his case, demonstrate[d] a textbook abusive relationship that included efforts by Belone to avoid the legal consequences of his actions." Relying upon the above excerpts from Giles, the State, in the words of the Supreme Court of Kansas, "attempt[ed] to carve out a different rule for domestic violence cases" in which Belone's prior acts of deomstice violece against Begay were sufficient to trigger the doctrine." The Kansas Supremes found this argument "unavailing" and plainly concluded that "[t]he State did not show that Belone killed Begay for the purpose of preventing her from testifying at trial."



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Colin: I think the Supreme Court of Kansas understands Giles, engaged in a nuanced analysis to ascertain Belone's intent as applicable to his alleged killing of Linda Begay, and appropriately applied the forfeiture doctrine (narrowly) in concluding, "the district court erred in admitting Begay's testimonial statements to the police."

For me, the most important passages of the opinion is, "The State did not show that Belone killed Begay 'for the purpose of preventing her from testifying at trial.' At most, the evidence suggested that 'the killing was motivated by jealousy.'"

Bottom Line: This case reinforces the point that in order for the doctrine of forfeiture to apply, it must be proven that the defendant acted with actual intent to exclude a person from testifying at trial vs. just being the fortuitous beneficiary of this result.


Posted by: Barry | Sep 29, 2012 6:09:39 PM

I think the court is wrong and sadly the brief opinion doesn't even address the issue in more than a cursory away. I do think there is a domestic violence exception, period. I've held that view before I ever read about this case. I hope the state appeals it, though SCOTUS may not be eager to review this issue again so soon.

Posted by: Daniel | Sep 29, 2012 9:39:24 PM


The problem with the court's logic is that it's circular. The reason there is no evidence is because the court has said there is no evidence, not because the evidence isn't there. Of course the court is going to say he was motivated by jealousy because it's already eliminated the evidence that would cut the other way.

This case is a good illustration of why I do think that there is DV exception. In classic cases of DV there is an intent to silence the victim from the very beginning of the relationship. From the very beginning; from the moment they first met in the bar or in the trailer park or where ever; that's how abusers work. So the only time the victim may speak is right before dying.

It would be an extremely odd public policy that said that if an abuser tries to shut the victim's mouth after the fact of the crime that gets admitted but if the abuser has been beating the spouse for years then that doesn't get admitted. "Beat her from the get go" is not the type of behavior a decent society should be promoting yet that's exactly the type of behavior the court endorsed in this opinion.

Posted by: Daniel | Sep 30, 2012 9:25:58 AM

Colin: I do think there is.domestic violence exception, period.

Barry: Certainly, you do not believe that just because a victim suffered from domestic violence, his/her hearsay statements should be allowed in court when the victim is rendered unavailable by the hand of the defendant. Absent a determination that the preponderance of the evidence proves the defendant acted with intent to make the witness unavailable to testify at trial. Giles holds such hearsay statements are inadmissable.


Posted by: Barr y | Sep 30, 2012 10:15:29 AM

Above I subscribed the quote, "I do believe there is a domestic violence exception, period" to Colin. It should have been Daniel.

Colin, I doubt you hold this position and did't mean to put words in your mouth.


Posted by: Barry | Sep 30, 2012 10:50:09 AM

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