EvidenceProf Blog

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

Thursday, November 5, 2020

Supreme Court of New Mexico Lays Out Four Factor Test for Forfeiture by Wrongdoing

Similar to Federal Rule of Evidence 804(b)(6), New Mexico Rule of Evidence 11-804(B)(5) provides an exception to the rule against hearsay 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.

So, what is required for this "forfeiture by wrongdoing" exception to apply? That was the question addressed by the Supreme Court of New Mexico in its recent opinion in State v. Farrington, 2020 WL 6144648 (N.M. 2020).

In Farrington, the court adopted this four factor test for the forfeiture by wrongdoing exception to apply:

(1) the declarant was expected to be a witness; (2) the declarant became unavailable; (3) the defendant's misconduct caused the unavailability of the declarant; and (4) the defendant intended by his misconduct to prevent the declarant from testifying.

So, imagine that Dan allegedly kills Vince and that Ed is an eyewitness to that murder who tells Felicia that he saw Dan kill Vince. Next, assume that Ed turns up dead. The prosecution would be able to introduce Ed's statement to Felicia under the forfeiture by wrongdoing exception if it can establish that (1) Ed was expected to be a witness against Dan at his trial for murdering Vince; (2) Ed is unavailable (he's dead); (3) Dan caused Ed's unavailability (he killed him); and (4) Dan intended to prevent Ed from testifying (that he saw Dan kill Vince).



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