Not So Fast: Supreme Court of Florida Rejects Proposed Forfeiture by Wrongdoing Exception

The recent opinion of the District Court of Appeal of Florida, Fourth District, in Mortimer v. State, 2014 WL 3174356 (Fla.App. 4 Dist. 2014), reveals something that I had missed last year: The Supreme Court of Florida rejected Florida's proposed forfeiture by wrongdoing exception.

I previously wrote about this exception in this post. A forfeiture by wrongdoing exception, of course, allows for a party to introduce hearsay statements by an unavailable declarant when the party can prove that the adverse party procured the declarant's unavailability through wrongdoing. And that was the case in Mortimer, in which the prosecution had evidence that the defendant terrorized a prospective witness by arranging drive-by shootings and the eventual shooting of the witness in his face, knee, and ankle.

But as the Mortimer court noted, in In re Amends. to the Fla. Evidence Code, 2013 WL 6500888 (Fla. 2013), the Supreme Court of Florida stated as follows:

In chapter 2012–152, section 1, Laws of Florida, the Legislature amended section 90.804 to include the hearsay exception of “Statement offered against a party that wrongfully caused the declarant's unavailability.” See § 90.804(2)(f), Fla. Stat. (2012). According to the Committee, the provision is a codification of the common law rule that one who wrongfully procures the absence of a witness from court cannot complain of the admission of the hearsay statement of the witness. See Reynolds v. United States, 98 U.S. 145, 158–59, 25 L.Ed. 244 (1878). We decline to adopt this amendment to the extent it is procedural in light of constitutional concerns. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding that the Confrontation Clause of the Sixth Amendment bars the admission of a witness's testimonial statement unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination); In re Amendments to the Fla. Evidence Code, 782 So.2d 339 (Fla.2000) (declining to adopt chapter 98–2, § 1, Laws of Florida, amending section 90.803(22), Florida Statutes, which allows the admission of former testimony although the declarant is available as witness, in part because of concerns about its constitutionality).

Now, as the Mortimer court noted, this decision was strange, given that the Supreme Court indicated in Giles v. California "that Crawford's constitutional bar to unconfronted, out of court testimonial statements did not apply to the 'forfeiture by wrongdoing' doctrine, which was codified by Federal Rule of Evidence 804(b)(6)." But the Supreme Court of Florida, for whatever reason, decided not to adopt its own version of Rule 804(b)(6).

-CM