EvidenceProf Blog

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

Tuesday, September 11, 2012

Unauthorized Transfer?: Should Courts Apply A Transferred Intent Doctrine Of Forfeiture By Wrongdoing?

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Over the last few days, I have posted several entries about the doctrine of forfeiture by wrongdoing. In the comments sections of these posts, there has been a lively debate about whether the Supreme Court has implicitly enorsed or repudiated a transferred intent doctrine of forfeiture by wrongdoing and whether transferred intent makes sense in the context of forfeiture. The key case often cited in support of the transferred intent doctrine is United States v. Gray, 405 F.3d 227 (4th Cir. 2005), and I have always taken that case as gospel on the subject. But, upon further review, I'm not sure that the Fourth Circuit's opinion holds water.

In Gray, Robert Gray brought criminal charges against Josephine Gray, alleging that she had assaulted him at his workplace by swinging at him with a club and lunging at him with a knife. Robert then turned up dead, and Josephine was prosecuted for his murder. At trial, the prosecution admitted statements that Robert made pursuant to the doctrine of forfeiture by wrongdoing, leading to Josephine's conviction.

She then appealed, claiming that, even if she killed Robert, it would have been to prevent him from testifying at the assault trial and not to prevent him from testifying at the murder trial, with such a trial not even being possible until after she (allegedly) killed him. The Fourth Circuit disagreed, finding that

The text [of Rule 804(b)(6)] does not require that the declarant would otherwise be a witness at any particular trial, nor does it limit the subject matter of admissible statements to events distinct from the events at issue in the trial in which the statements are offered. Thus, we conclude that Rule 804(b)(6) applies whenever the defendant's wrongdoing was intended to, and did, render the declarant unavailable as a witness against the defendant, without regard to the nature of the charges at the trial in which the declarant's statements are offered

In justifying this conclusion, the Fourth Circuit found that

Our interpretation of Rule 804(b)(6) advances the clear purpose of the forfeiture-by-wrongdoing exception. The advisory committee noted its specific goal to implement a "prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself." Fed.R.Evid. 804(b)(6) advisory committee note (internal quotations omitted); see also United States v. Thompson, 286 F.3d 950, 962 (7th Cir.2002) (stating that "the primary reasoning behind this rule" is "to deter criminals from intimidating or 'taking care of' potential witnesses against them"). More generally, federal courts have recognized that the forfeiture-by-wrongdoing exception is necessary to prevent wrongdoers from profiting by their misconduct. See Reynolds, 98 U.S. at 158–59 (holding that a criminal defendant waives his right to confront a witness whose absence his own misconduct procured and stating that this rule "has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong"); Emery, 186 F.3d at 926 (stating that the Rule "establishes the general proposition that a defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness"); White, 116 F.3d at 911 (stating that "where the defendant has silenced a witness through the use of threats, violence or murder, admission of the victim's prior statements at least partially offsets the perpetrator's rewards for his misconduct"); Houlihan, 92 F.3d at 1279 (applying the forfeiture-by-wrongdoing exception and noting that "courts will not suffer a party to profit by his own wrongdoing").

So, does this analysis make sense? If Josephine were being prosecuted for assault, the answer is a clear "yes." Without the murder, Robert could have testified against her at the assault trial, which could have led to her conviction and all of the direct and collateral consequences that result from a conviction. Therefore, if Josephine killed Robert and forfeiture did not apply, she would profited from her misconduct at the assault trial. In other words, she would be in a better position than a similarly situated defendant who did not kill her assault victim, who could then testify against her at the assault trial.

But what about at Josephine's murder trial? Well, this gets back to Josephine's argument. That murder trial could not have existed but for Josephine's act of killing Robert. This is why Josephine's act of killing Robert would not have resulted in forfeiture if there were no assault trial pending at the time of the murder. This is the clear message from Giles v. California. For forfeiture to apply, at a minimum, there must be an intent to render the victim unavailable to testify at some existing or anticipated trial.

But if there could not have been a murder trial without the killing of Robert, how could Josephine profit from the killing at her murder trial? A victim can never testify at a murder trial because murder is a result crime, meaning that the victim has to be dead for the prosecution to proceed. Without the victim's death, the defendant could only be prosecuted for attempted murder. So, could Josephine be in a better position than any other murder defendant? The answer seems to be that she was not because a murder victim can never testify.



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This touches on why Banos is particularly fascinating. Procedurally, it pinballed around -- caught in the midst of Giles I / Giles II. Interestingly, it came back to the 8th after Giles II, and they affirmed. It looks like transferred intent, smells like transferred intent...but when you get to the discussion or any applicable debate, there's simply a paragraph noting
"[a]t the time of her death, there was pending a hearing on defendant's violation of the restraining order. That defendant killed Cortez to stop her from testifying against him at the hearing is supported by evidence that he was arrested multiple times at Cortez's apartment by police responding to a call about violation of a court order and domestic violence.   The trial court reasonably could have found that defendant knew he would be prosecuted for these actions and that Cortez would testify at those proceedings.   Substantial evidence also supports the implied finding that once defendant broke into Cortez's home on April 10th, he knew that criminal proceedings would be commenced and as she had cooperated with the police before, Cortez was likely to testify at those proceedings."


- Matt

Posted by: Matt | Sep 11, 2012 9:47:09 AM

Banos is interesting. I will do a post about it tomorrow.

Posted by: Colin Miller | Sep 11, 2012 10:48:23 AM

Colin: I was the one to first reference Giles a few posts ago and am glad this has fostered such spirited discussion and thought on your part. Allow me to offer some additional commentary (as applicable to the Peterson case) and pose a question to you (to further muddy the waters on your question re: the doctrine of transferred intent and its applicability to the doctrine of forfeiture by wrongdoings).

1. As applicable to the Peterson case and Stacy, I think we are both in agreement that the admission of Harry Smith's, double hearsay testimony re: what Stacy purportedly told Harry about what Drew purportedly told Stacy forms an excellent basis for appeal because 1.) Stacy was arguably was not killed to prevent her testimony "as a witness" in any pending case against him and 2.) even if Drew did kill Stacy in anticipation of the Savio case, for which he was not yet charged at the time of her killing, he gained no ostensible legal adavantage by killing her (the very reason for allowing the declarations of an unavailable witness whose unavailibily was caused by defendant) because Drew could have kept Stacy off the stand anyway. Anything Stacy would have testified about could have only been gleaned from confidential, marital communications, and Drew could prevented Stacy from testifying about this even if she wanted.

2. As applicable to the Peterson case and Kathleen, I query whether the trial court made a proper finding that Drew killed Kathleen to prevent her from being "a witness" in the divorce proceeding - the triggering event to the forfeiture by wrongoings doctrine. He might have killed her to prevent her from "getting his pension" and "forcing him to pay child support" as some withesses testified, but this is not the same as kiling her from serving "as a witness." Absent her being killed to prevent her "witness testimony," the doctrine of forfeiture could never apply - in the divorce or criminal case (assuming transferred intent is allowed).

3. Now to the question you posed above - the question of whether the courts should be allowed to employ transferred intent when applying forfeiture doctrine from one casse to another. I am going to answer that question with a question of my own (something the nuns at St. Joseph Elementary School in Medford, MA scholded me for doing decades ago). Suppose that D is on trial and multiple charges are brought against him and they are tried together. Assume further that it is proven D made a witness unavailable for purposes of "charge one" only and the court allows the hearsay declarations, can those same statements be used against D in the same trial for determining his guilt in "charge two"? If not, can you imagine the limiting instruction. Does transfered intent matter whether it is the same trial or different trials?

BTW: I think the forfeiture by wrongdoings doctrine can be applied to allow hearsay statements when the wrongdoer kills a witness to prevent him/her from testifying at a.) a case currently on trial, b.) a case for which the defendant is charged but not yet tried, and c.) a case the alleged wrongdoer reasonably thinks might be brought against him/her. I suspect you have no problems with a.) and b.) but query your thoughts on c.)


Posted by: Barry | Sep 11, 2012 1:29:08 PM

What is this Banos (and don't say see my post tomorrow!)?

Posted by: Gideon | Sep 11, 2012 5:17:14 PM


First, you were the one that posted below about Scalia seemingly rejecting the transferred intent doctrine of forfeiture by wrongdoing during oral argument. Well, I was just reading Scalia's opinion again, and I'm not sure how to square it with his statements during oral argument. Here's part of footnote 9 of Scalia's opinion:

"We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent."

Unless I am reading this wrong, Scalia is saying that (1) Defendant could be on trial for Crime A (e.g., arson, robbery, etc.), (2) Defendant could kill Witness to prevent him from testifying at the trial for crime A; (3) Defendant would now be on trial for Crime B, murdering Witness; and (4) forfeiture by wrongdoing could apply if the court finds sufficient evidence of intent and causation. But this intent would be the intent to render Witness unavailable at trial for Crime A, not Crime B, the murder trial. This seems like a pretty clear statement that there is a transferred intent doctrine of forfeiture by wrongdoing. I will write more about this is my post tomorrow.

Second, as for your question, I have no problem with forfeiture by wrongdoing applying assuming sufficient evidence is presented. So, let's say Defendant kills Victim and kills Eyewitness before he has been charged or even arrested for the murder of Victim. I have no problem with forfeiture by wrongdoing applying to statements that Eyewitness made to a friend before he died.

Posted by: Colin Miller | Sep 11, 2012 5:18:59 PM

Gideon: People v. Banos, 100 Cal.Rptr.3d 476 (Cal.App. 2 Dist. 2009):


Posted by: Colin Miller | Sep 11, 2012 5:21:13 PM

1. I have the same question you do re: transferred intent. When does it apply, if at all? Taken to extremes it could yield extereme results. For example, if a D killed a witness to avoid him/her from testifying in a small claims (collection) matter, should statements that the "same" unavailable witness made re: D's involvement in a "different" case (murder) committed while the witness was alive, but charged 5 years later? Even if it was not foreseeable the D would be charged? Is it a per se rule, applicable regardless?

2. As you (and everyone else) tries to get a handle around this, compare and contrast the footnote you referenced above with Scalia's commentary at oral argument (around the 18-20 minute mark).


Posted by: Barry | Sep 11, 2012 6:50:00 PM

The Scalia footnote (I think it's actually FN 6, not FN9), seems incredibly helpful when arguing for transferred intent.

Related to previous postings--
An interesting case for analogy and possible discussion:
State v. Supanchick, 263 P.3d 378 (Oregon, 2011)

Defendant is served with restraining order. Around a month later, defendant arrives at victim's house and holds her captive. Later that night, authorities are alerted and eventually arrive. During the confrontation, defendant kills the victim and is arrested.

Defendant was charged with agg. murder, 1st deg. burg., and attempted coercion.

At trial and appeal, defendant contended the court erred when admitting victim's handwritten notes, a non redacted copy of the restraining order petition, and a copy of the restraining order.

This is where it gets familiar.
Oregon code 804(3)(f) - murder forfeiture exception
Oregon code 804(3)(g) - forfeiture by wrongdoing exception.

Defendant attacked the constitutionality of (f) and application of (g).

The appellate court, in a meaty discussion:

First, the court rejected the contention that, in order for OEC 804(3)(g) to apply, the wrongful conduct had to be planned with the primary objective of preventing the declarant from testifying. Supanchick at 382.
Consequently, the court rejected the contention that unless the statute is read to include such sole/primary purpose, it violates the confrontation clause under Crawford. Supanchick at 382
Also, the court notes intent does not mean premeditation or planning. Supanchick at 383.
Instead the court recognized the defendant "indicated that he had been concerned that the victim would call the police as a result of his violation of the FAPA restraining order." 383 Moreover, the defendant stated to police, he didn't free the victim "[b]ecause there had to be a better way, a better option than that. A better option because now I'm gonna go to jail for whatever, for being—violating [the restraining order] and having a gun there." Supanchick at 383.

This is a neat twist:
"Defendant's final contention with respect to the admission of evidence under OEC 804(3)(g) is that the victim's statements "lacked reliability and were therefore inadmissible under Article I, section 11," of the Oregon Constitution. Article I, section 11, provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall have the right * * * to meet the witnesses face to face[.]" Out-of-court statements made by a declarant who is not testifying are admissible only if two requirements are met. "First, the declarant must be unavailable, and, second, the declarant's statement must have `adequate indicia of reliability.'" Cook, 340 Or. at 540, 135 P.3d 260 (quoting State v. Campbell, 299 Or. 633, 648, 705 P.2d 694 (1985)). An out-of-court "statement is considered reliable when it falls within a `firmly rooted hearsay exception' or when it is accompanied by `particularized guarantees of trustworthiness.'" Id. (quoting State v. Nielsen, 316 Or. 611, 623, 853 P.2d 256 (1993)).
The court responded this "exception is indeed "firmly rooted" and, therefore, there need not be a showing of "particularized guarantees of trustworthiness." Accordingly admission of the victim's statements does not violate defendant's confrontation rights under Article I, section 11." Supanchick at 384.
While the statutory roots may be young and shallow (adopted in 2005), the common law in which its based has roots dating back to 1666. Supanchick at 384.

What about the "murder forfeiture exception"? The court concluded that "the statements were properly admitted pursuant to OEC 804(3)(g) and decline to address defendant's contention that OEC 804(3)(f) is unconstitutional." Supanchick at 381.

- Matt

Posted by: Matt | Sep 11, 2012 7:24:37 PM

If I may indulge an additional post about the Supanchick case:
It's slated before the Oregon Supreme Court currently, take a look at the "statement of issues"

State of Oregon v. Tyke Thomas Supanchick (S060017) (A139011) (appeal from Lane County Circuit Court; opinion reported at 245 Or App 651, 263 P3d 378 (2011)).

Defendant Tyke Thomas Supanchick has been granted review of a Court of Appeals decision that affirmed various evidentiary rulings by the trial court, along with defendant's convictions for aggravated murder, burglary I, and attempted coercion.

On review, the issues raised by defendant are:

(1) Under what circumstances are a deceased victim's hearsay statements admissible under the "forfeiture by wrongdoing" exceptions codified as OEC 804(3)(g) (the general forfeiture exception) and OEC 804(3)(f) (the murder forfeiture exception)?

(2) Does the introduction of statements under Oregon's forfeiture by wrongdoing exceptions (OEC 804(3)(f) & (g)), without an opportunity to cross-examine the declarant, violate Article I, section 11, of the Oregon Constitution?

(3) Does the introduction of the victim's statements under Oregon's forfeiture by wrongdoing exceptions (OEC 804(3)(f) & (g)), without an opportunity to cross-examine the declarant, satisfy the Confrontation Clause requirements under the Sixth Amendment to the United States Constitution?

(4) If defendant calls an expert witness who testifies that he diagnosed defendant with post traumatic stress disorder, and then, during cross-examination, the expert indicates that he relied on e-mails in formulating his opinion, has defendant opened the door to the introduction of the specific content of those e-mails?

(5) Is expert testimony that the police employed a specific interview technique when they obtained defendant's confession relevant to whether defendant's statements were voluntary?

(6) Is testimony that police action might have had an impact on defendant's state of mind relevant to a murder case in which the primary issue of contention is defendant's intent?

The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20.

- Matt

Posted by: Matt | Sep 11, 2012 8:08:24 PM

Matt: Thanks. Here's the relevant portion of footnote 2 of Scalia's opinion:

Only a single state evidentiary code appears to contain a forfeiture rule broader than our holding in this case (and in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177) allow....The lone forfeiture exception whose text reaches more broadly than the rule we adopt is an Oregon rule adopted in 2005. See 2005 Ore. Laws p. 1232, Ch. 458 (S.B.287).

Posted by: Colin Miller | Sep 12, 2012 2:51:25 AM

Thanks for the note. I'm interested why the Oregon Sup. Ct. is taking the case up on appeal. Particularly with the first three queries listed as issues on appeal.

I think Supanchick is interesting because the facts appear to suggest there was no upcoming hearing or trial UNTIL the defendant arrived with weapons and killed the declarant. Only when the defendant arrived, did a violation occur and he contemplated an upcoming violation hearing. Then, he murdered the declarant.
This is interesting because of the confusing issue of intent:
He intends to go over and do something, maybe kill--maybe scare, he arrives, violates the order of protection instantly, and apparently considers the violation when he kills.
This is bizarre - if the defendant had shut up and had not stated certain things post-arrest, would there be evidence of intent regarding the violation? I'm not sure...

Obviously this is why the court emphasized the sole/primary purpose of the killing need not be to silence the witness. However, the issue seems sticky and I'm curious what the state supreme court will do.

- Matt

Posted by: Matt | Sep 12, 2012 9:10:32 AM

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