EvidenceProf Blog

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

Thursday, January 2, 2014

The Purpose Driven Rule: Supreme Court of Arizona Finds Rule 804(b)(6) Applies At Murder Trial

Last year, I published the essay, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing. The essay argued that the criminal law concept of transferred intent should apply to the doctrine of forfeiture by wrongdoing contained in Federal Rule of Evidence 804(b)(6) and state counterparts. Rule of Evidence 804(b)(6). I'm glad to see that the Supreme Court of Arizona reached a similar conclusion in State v. Miller, 2013 WL 6842566 (Ariz. 2013).

Similar to its federal counterpart, Arizona Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result.

Rule 804(b)(6) is a an anti-witness tampering rule. Traditionally, then, it would operate as follows: Defendant (D) is charged with arson and kills Prospective Witness (PW) to prevent him from testifying at the murder trial. By killing PW, D has forfeited his objection to the admission of any hearsay statements made by PW, such as a statement to police concerning the murder.

But what happens if the prosecution turns around and charged D for PW's murder. Does Rule 804(b)(6) apply at the murder trial (Trial #2) when D's intent was to render PW unavailable at the arson trial (Trial #2)? My argument was that the answer should be "yes" based upon the same logic that applies in transferred intent cases. 

This takes us to Miller. In Miller,

In 2005, Miller's Scottsdale home burned down. Shortly thereafter, Miller's employee, Steven Duffy, admitted that he and Miller set the fire, and he and his girlfriend, Tammy Lovell, began cooperating with the police in the arson investigation. A few weeks later, Miller was indicted for arson and related fraud.

Miller blamed Steven for the indictment and told several people that he wanted to have Steven and Tammy killed. He tried to recruit four different men to kill them and their family. On February 21, 2006, three months after the arson, the police found the five victims—Steven, Tammy, Steven's brother Shane, and Tammy's children, Cassandra and Jacob—shot to death in their home.

Miller was later charged with murdering the victims, prompting the prosecution to introduce their tape recorded statements at trial pursuant to Rule 804(b)(6). After he was convicted Miller appealed, claiming, inter alia, "that this exception permits hearsay only in the trial for which the defendant silenced the witness—here, the arson case."

The Supreme Court of Arizona disagreed, concluding that

Rule 804(b)(6) contains no such limitation. Moreover, such a restriction would frustrate the rule's purpose of preventing a defendant from benefitting from his wrongdoing, cf. Giles v. California, 554 U.S. 353, 365 (2008) (explaining that common-law authorities applied this reasoning to justify the wrongful-procurement rule), which we recognize as sound public policy. Our reasoning comports with that of most other courts that have considered the issue. See, e.g., United States v. Dhinsa, 243 F.3d 635, 656–57 (2d Cir.2001); United States v. Emery, 186 F.3d 921, 926 (8th Cir.1999); United States v. White, 116 F.3d 903, 911–16 (D.C.Cir.1997). Miller's confrontation objection was likewise extinguished by the forfeiture-by-wrongdoing exception. Crawford v. Washington, 541 U.S. 36, 62 (2004) (the forfeiture exception “extinguishes confrontation claims on essentially equitable grounds”). Thus, the trial court did not err, on either hearsay or confrontation grounds, in admitting the statements.



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