EvidenceProf Blog

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

Friday, September 28, 2012

Call Me: Court Of Appeals Of Utah Finds Husband's 276 Calls To Wife Triggered Forfeiture By Wrongdoing

Based upon acts allegedly committed by a husband against his wife and daughter, the husband is charged with aggravated kidnapping, aggravated assault, and domestic violence in the presence of a child. Immediately after the incident leading to these charges, the wife calls the police, who photograph the scene of the crime and the injuries suffered by the wife, who also gives two witness statements to the police. As a result of the crimes charged, the court enters a no-contact order against the husband, who nonetheless calls the wife 276 times in advance of trial. When the husband's trial commences, the wife invokes the spousal testimonial privilege and refuses to testify against the husband. Can the prosecition now introduce the wife's statements to the police under the doctrine of forfeiture by wrongdoing? According to the recent opinion of the Court of Appeals of Utah in State v. Zaragoza, 2012 WL 4450360 (Utah App. 2012), the answer is "yes."

In Zaragoza, the facts were as stated above. In addressing the husband's appeal, the court noted that 

The doctrine of forfeiture by wrongdoing applies if the State can show "(1) the witness is unavailable at trial, (2) the witness's unavailability was caused by a wrongful act of the defendant, and (3) the defendant's act was done with an intent to make the witness unavailable."

The husband did not dispute that the first and third prongs of this test were satisfied but claimed that the State had failed to prove the second prong by a preponderance of the evidence. Specifically, he claimed

that the court's application of the doctrine was overly expansive, essentially concluding that any act, including encouraging a spouse to withhold privileged testimony, undertaken with the intent to procure a witness's unavailability is per se wrongful.

The Court of Appeals of Utah disagreed, concluding that

In challenging the court's wrongful act determination, Defendant fails to acknowledge that the specific acts the court considered in its determination—276 phone calls Defendant initiated from jail—were undertaken in violation of a no-contact order. The trial court specifically referenced those phone calls and the content of those calls and found that there was more than a preponderance of the evidence to show that "this defendant engaged in witness tampering to attempt to induce someone from withholding testimony, change somebody's testimony, influence the testimony that may be given at trial." These findings are sufficient to establish the second prong of the test that Defendant caused Wife's unavailability by the wrongful act of contacting Wife by phone 276 times in violation of a no-contact order.

I certainly agree with this conclusion but wonder what result the Court of Appeals of Utah would have reached if there were not a no-contact order. The husband admittedly made the 276 calls to the wife to prevent her from testifying. Isn't such witness tampering wrongful regardless of whether it is done in violation of a no-contact order? In other words, if an act is done with the intent to make a witness unavailable, can the act ever be anything other than wrongful?



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"witness tampering wrongful"

Of course because you have defined it as such; that phrase is a tautology. The question is whether or not the defendant's conduct rose to the level of "witness tampering". In that regard the fact that there is a no contact order is a relevant consideration. Just because one spouse calls another spouse 276 times doesn't mean one of them is tampering. I'd even go so far as a phone call reminding said spouse that they have a right to invoke spousal immunity is not per se tampering as it doesn't raise to the level of "induce".

Again, this is why I think it's so important to adopt a totality of the circumstances test on this highly factual issue. In this case I think the court has drawn a reasonable inference. But I think it would be a much more difficult question if the NC order did not exist.

Posted by: Daniel | Sep 28, 2012 12:37:47 PM

Yes, "witness tampering" is a loaded phrase. The example you give is interesting. Without a no contact order, Husband calls Wife and tells her to invoke spousal privilege and she agrees. Is that forfeiture by wrongdoing? What if he tells her that if she testifies against him, the family will be broken up. She will lose his income. Their child will lose her father. If such conduct is intended to render Wife unavailable and causes her to be unavailable, does forfeiture by wrongdoing apply. Is such behavior wrong? Does it have to be wrong in the classic sense? I don't know.

Posted by: Colin Miller | Sep 28, 2012 1:18:10 PM

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