EvidenceProf Blog

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

Sunday, June 6, 2021

Supreme Court of Appeals of West Virginia Clarifies Scope of Forfeiture-by-Wrongdoing Doctrine

Similar to its federal counterpart, West Virginia 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.

So, what exactly constitutes wrongdoing under this forfeiture-by-wrongdoing hearsay exception? That was the question of first impression addressed by the Supreme Court of Appeals of West Virginia in its recent opinion in State v. Jako, 2021 WL 2221041 (W.Va. 2021).

In Jako

Gerald Wayne Jako, Jr., and his girlfriend, Samantha England, were indicted for first-degree robbery in January 2019 for robbing a gambling parlor. Before trial, Ms. England struck a deal with the State and agreed to testify against Mr. Jako. Once Mr. Jako learned that Ms. England planned to testify, he made a series of jailhouse phone calls in which he told Ms. England to remain loyal, honest, and true to him and threatened to end their relationship if she didn't stop “running her mouth.” Days later, Ms. England withdrew her plea agreement and told the State that she would not testify against him. Relying on the forfeiture-by-wrongdoing doctrine, the State moved to admit Ms. England's recorded statement into evidence, despite her absence from trial and Mr. Jako's inability to cross-examine her. The circuit court granted the motion, the jury convicted Mr. Jako of first-degree robbery, and he...appeal[ed] that conviction.

In rejecting Jako's appeal on the ground that he did not engage in wrongdoing, the Supreme Court of Appeals of West Virginia ruled as follows:

Mr. Jako highlights the circuit court's finding that he did not threaten Ms. England and argues that even if he had, the threats could not have influenced Ms. England because she was housed in a different jail and knew that he could not harm her. Without threats, he reasons, his actions were not wrongful. While we agree with the circuit court that Mr. Jako did not make an overt threat of violence to Ms. England, his statements certainly intimated the possibility. Mr. Jako told Ms. England that he could “reach out to different people and sh*t,” but that he did not want to talk to people other than Ms. England because he did not “ever want to be the reason that [she] shed tears.” One can reasonably infer that Mr. Jako was telling Ms. England that, even though they were housed in different jails, he could still “reach out” to others who could harm her. By arranging with the third-party for the phone calls, he demonstrated that he had access to others on the “outside,” and Ms. England stated that she had been told to call the third-party. The undisputed facts demonstrate Mr. Jako's reach: from his jail, to the outside, then to Ms. England..

In sum,...we reject Mr. Jako's argument that, as a matter of law, his actions do not amount to “wrongdoing” for purposes of the forfeiture-by-wrongdoing doctrine. So, we find that Mr. Jako is entitled to no relief on this assignment of error.



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Justice Wooton indicated a dissent, but didn’t file an actual opinion (yet), so it’s not clear if he dissents on this particular issue.

Posted by: hardreaders | Jun 6, 2021 7:25:01 PM

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