EvidenceProf Blog

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

Friday, February 26, 2021

Military Court Applies Forfeiture by Wrongdoing Exception in Murder Case

Similar to its federal counterpart, Military Rule of Evidence 804(b)(6) 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.

The recent opinion of the United States Navy-Marine Corps Court of Criminal Appeals in United States v. Becker, 2021 WL 733198 (N.M.Ct.Crim.App. 2021), does a nice job of explaining how parties go about satisfying this "forfeiture by wrongdoing" exception.

In Becker, Craig Becker was charged with assault consummated by a battery, conduct unbecoming an officer and a gentleman, and premeditated murder for allegedly strangling his wife in August 2013, physically and emotionally abusing her over the following two years, and then drugging her and causing her to fall from a seventh-floor apartment window to her death in October 2015. Two days before that murder,

On 6 October 2015, [Becker] went to a Belgian police office and reported that he was concerned about the people-including her new boyfriend-whom Mrs. Becker had invited to help her move to her new apartment. [Becker] asked the police to make a written record of his visit. He later stated he went to the police because during their disagreements over who would move her things, Mrs. Becker “made [him] understand that she was going to cause [him] problems.” [Beecker] also reported that Mrs. Becker was an alcoholic, that she drank one-half to three-quarters of a bottle of wine five nights a week, and that her drinking affected her emotional state. That same day, he bought a bottle of wine for their seventh-floor apartment.

The State sought to offer Mrs. Becker's statements "to friends and family members about her abusive marriage was her fear of what Appellee would do if he lost his career" under Rule 804(b)(6). In ruling on the issue, the court noted four things about the "forfeiture by wrongdoing" exception:

First, the law recognizes that multiple intents or motives may be at work in a single, wrongful action....Consequently, as we have previously explained, “the conduct rendering the declarant unavailable need not have been motivated solely by a desire to prevent the declarant from testifying as a witness, so long as it was a motivation.”...
Second, the intent to cause the declarant's unavailability as a witness need not be in reference to a particular criminal proceeding, or any proceeding at all for that matter. The intent could be to prevent the witness from testifying in a civil proceeding, such as a divorce or child custody hearing....Nor must any legal proceeding, civil or criminal, be in existence at the time of the wrongdoing....There need not be a criminal investigation or charges pending or even contemplated at the time of the wrongdoing....In the context of domestic abuse, for example, the Supreme Court has recognized that since “[a]cts of domestic violence often are intended to dissuade a victim from resorting to outside help, ... the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her statements admissible under the forfeiture doctrine.”...
Third, the wrongdoer's intent to cause the declarant's unavailability as a witness need only be subjectively held; it need not be reasonable in any objective or measurable way. Thus, the focus of the assessment is on the wrongdoer, not the declarant. Even if the declarant had no present intention of reporting abuse to the authorities or testifying at a future civil or criminal proceeding that was not then pending, but the wrongdoer's actions were nevertheless intended or designed to prevent her from doing so, this would trigger forfeiture by wrongdoing....
Finally, in assessing the wrongdoer's intent, while “[t]here is no general rule for determining or comparing the weight to be given to direct or circumstantial evidence,”... the trial court must take into account the totality of the circumstances, including not only the broader context of the wrongful act, but also its “immediate circumstances.”...This is particularly important where there is evidence of calculation or premeditation in the wrongful act that renders the declarant unavailable as a witness, since the forfeiture-by-wrongdoing exception's very existence is to prevent wrongdoers from benefitting from such action through planning, scheming, or stratagem.

Applying this reasoning, the court concluded that the exception was applicable, concluding that

in killing Mrs. Becker, [Becker] was motivated not just to rid himself of any visceral feelings of jealousy upon finding her in a second affair, but by a desire to be rid of her in a complete sense, to include the incriminating detritus of his prior abusive conduct.



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Of course, this holding presupposes Becker's guilt as to the murder charge as this case procedurally is an interlocutory appeal by the government.

Posted by: Donald G Rehkopf | Feb 26, 2021 9:55:30 AM

There is a dissent which makes several points.

1. The majority inferentially overrules Giles v. California, 554 U.S. 353 (2008). I'd be interested if you have a view on this point.

2. The majority’s facts they gleaned from their review of the record are not evidence of appellee’s secondary intent to prevent Mrs. B. from making future testimonial statements.

3. The military judge did not fail to consider important facts. ​The facts that the majority characterizes as “important facts” were thus in front of the military judge, twice.

"​He is not required to make findings on every possible factoid placed in front of him.The question is not whether we merely disagree with the military judge’s assessment of the evidence, but whether the facts identified by the majority were important enough to render a failure to make findings on them an abuse of discretion."

4. The majority creates a different Confrontation “right” for Navy and Marine Corps personnel to that of civilians “or even our Sister Services." I wonder if you have a view on this.

(Courts-martial are prosecuted in the name of the United States.)

Posted by: Philip D. Cave | Feb 26, 2021 11:39:45 AM

Phillip: Thanks for the comments. Can you please elaborate on why you think the opinion inferentially overrules Giles?

Posted by: Colin Miller | Feb 27, 2021 10:32:57 AM

Donald Rehkopf's point about the circularity problem was discussed in Souter, J.'s Giles concurrence to some extent. I think we can still debate whether the "safeguards" that Souter noted fully address the problem, but the safeguards, such as they are, do at least exist. Also, while not exactly the same, the "bootstrapping" issues with admitting coconspirator statements do come to mind in this context.

I think Philip Cave's enumerated points were summarizing the same points made in the dissent, not adding new ones. So consulting the dissent will give the details of those points. On the dissent's point 1, it seems a little excessive to say it's an "overruling" of Giles. You can argue the majority's evidence isn't enough under the Giles standard for determining intent, but I think it's a stretch to say the majority disregarded the standard altogether.

Finally, I didn't want to bring it up by itself, but since I'm commenting anyway, there seems to be a minor typo at the start of the first sentence. Shouldn't it be "Similar to its _civil_ counterpart ..."? The military rules are federal too, so it doesn't distinguish them to refer to the civil rules as "federal".

Posted by: hardreaders | Feb 27, 2021 1:24:59 PM

The Court of Appeals for the Armed Forces overruled the NMCCA. Here is a link to their opinion. https://www.armfor.uscourts.gov/newcaaf/opinions/2020OctTerm/210236.pdf

Posted by: PhilCave | May 4, 2022 4:50:52 AM

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