EvidenceProf Blog

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

Tuesday, April 30, 2019

Court of Appeals of Minnesota Finds Courts Can and Often Must Infer Causation Under "Forfeiture by Wrongdoing" Hearsay Exception

Like its federal counterpart, Minnesota Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for 

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

In effect, this is a witness tampering rule, and the Minnesota courts have held that the proponent of evidence under this hearsay exception must prove four elements

 (1) that the declarant-witness is unavailable; (2) that the defendant engaged in wrongful conduct; (3) that the wrongful conduct procured the unavailability of the witness; and (4) that the defendant intended to procure the unavailability of the witness.

So, what happens when the proponent of evidence under this "forfeiture by wrongdoing" exception has direct evidence to establish (1), (2), and (4), but not (3)? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in State v. Shaka, 2019 WL 1890550 (Minn.App. 2019).

In Shaka, Ronnie Bila Shaka was charged with violating a domestic-abuse no-contact order (DANCO) protecting his wife, S.S. At Shaka's trial,

the state informed the district court, the defendant, and defense counsel that S.S. had not appeared pursuant to the state’s subpoena to testify. The state also informed the court that, after jury selection ended on the first day of trial, the jail recorded...phone calls by Shaka, who “spent the evening finding people to seek out [S.S.] and make sure she didn’t come to court.” The state sought a brief continuance of the trial, or in the alternative, asked the district court to apply the “forfeiture-by-wrongdoing” exception to the Confrontation Clause, and permit Bergin to testify that he had interviewed S.S. on the first day of trial and she confirmed that she was the female voice on the recordings that had been received into evidence. The district court granted a continuance until the next morning and issued a bench warrant for S.S. to appear.

When S.S. again didn't appear on the next day of trial, her statements were admitted under Minnesota Rule of Evidence 804(b)(6).

After Shaka was convicted, he appealed. In that appeal, "Shaka concede[d] that the district court did not err in determining that three of the four elements in the forfeiture-by-wrongdoing exception appl[ied] to the contested hearsay evidence." But he claimed that the district court had no direct evidence that he caused S.S.'s unavailability. The Court of Appeals agreed with Shaka that "[t]he district court acknowledged that it did not know why S.S. did not comply with her subpoena and appear to testify."

That said, the Court of Appeals found that this did not create an issue. While this was an issue of first impression in Minnesota, the court noted that

-In State v. Maestas, the New Mexico Supreme Court held that causation in the forfeiture-by-wrongdoing exception “need not be established by direct evidence or testimony” because “rarely will a witness who has been persuaded not to testify regarding an underlying crime come forward to testify about the persuasion;" and

-Likewise, in United States v. Scott, the Seventh Circuit stated that “[i]t seems almost certain that, in a case involving coercion or threats, a witness who refuses to testify at trial will not testify to the actions procuring his or her unavailability.”

Therefore, like these courts, the Court of Appeals of Minnesota found that it could infer from Shaka's calls and S.S.'s nonappearance that Shaka had caused her unavailability. As a result, the court affirmed Shaka's conviction.



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