March-April 2013

The forfeiture by wrongdoing ­doctrine nine years after Crawford

Sam Katz

Chief Appellate Prosecutor in the Comal County Criminal District Attorney’s Office and faculty member at the University of Phoenix

Caselaw since Crawford has limited the State’s use of the forfeiture by wrongdoing doctrine. Here’s what prosecutors need to know about it.

It’s the Friday before a domestic violence trial is set to begin on Monday. As a prosecutor, you have just finished meeting with the patrol officer first on the scene and the detective who investigated; next, you are scheduled to meet with Susan, the victim, to talk about what happened that day and to discuss her testimony. You wait. Thirty minutes past the scheduled meeting time, you call your investigator and ask him to contact Susan to find out where she is.
    Another 30 minutes goes by, and the investigator comes into your office to tell you that Susan’s family said that she has left town, despite being subpoenaed. The family isn’t sure where she went, but Susan has several friends in other cities and states where she could have gone.
    Her family thinks that the defendant threatened her in some way to keep her out of court. In the past couple of weeks, she received several phone calls where she looked concerned during the conversations and said to the caller in a low voice, “You wouldn’t dare.” Family members had asked her if it was her boyfriend, the defendant, who had called, but she wouldn’t say anything other than to shake her head no with tears in her eyes. Susan’s brother said that she told him just before she left that she was afraid for her life if she testified; he also claims to have overheard the defendant stating to others in a bar that he is not worried about his upcoming trial because “it is all taken of.” The investigator tells you that he asked the brother to come in to talk to you, and he is on his way.
        “That’s all OK,” you think to yourself. “When the defendant claims in court that his Sixth Amendment right to confront his accuser have been violated, we’ll just put the brother on to testify about the threats to his sister and to what he overheard. The judge will have to overrule his objection because the defendant waived his right to confrontation under the forfeiture by wrongdoing doctrine.”
    You’re not worried—but should you be?

Nine years since Crawford
It has been several years since the Supreme Court of the United States  issued its opinion in Crawford v. Washington1 establishing that the Sixth Amendment’s Confrontation Clause gives defendants the right to cross-examine witnesses who offer testimony or make out-of-court testimonial statements against them. To be inadmissible under Crawford, the testimonial statement must be made by a non-testifying or an otherwise unavailable witness whose statement was not subject to the defendant’s cross-examination. Those rights of confrontation, however, were subject to waiver by a defendant under certain circumstances, one of which concerned the doctrine of “forfeiture by wrongdoing.”2
    The Supreme Court also alluded to this principle in Davis v. Washington after having reversed and remanded its companion case Indiana v. Hammon3 back to the Indiana courts, noting that the state courts should examine Hammon’s actions in light of the forfeiture by wrongdoing doctrine.4 The doctrine is long established and based on the equitable principle that a defendant should not be allowed to profit from his misdoing if he is the reason a witness is unavailable. In 2008 however, the Supreme Court revisited the forfeiture by wrongdoing doctrine and more narrowly construed it and its availability to be used by the prosecution in a case.5
    Forfeiture by wrongdoing as recognized by the U.S. Supreme Court in Crawford and in Davis is an equitable remedy divorced from the assessment of the reliability of hearsay statement(s) or out-of-court testimony and will, in essence, extinguish a defendant’s constitutional right to confrontation under the Sixth Amendment of the U.S. Constitution.6
    The Texas Court of Criminal Appeals adopted this doctrine, applying it in a capital murder case in Gonzalez v. State.7 Police had arrived at the victims’ house, finding that both Maria and Baldomero Herrera had been shot. Maria Herrera described their assailant as a relative of the people who lived across the street; she had recognized him during the assault, and he had stolen the neighbors’ truck. Police, acting on this information, found the stolen truck and set up surveillance. They saw the defendant, Ray Gonzalez, who matched Maria’s description, get into the truck; he then led them in a high-speed chase. After he was apprehended and arrested, Maria’s blood was found on his shoes.8 Maria died from her wounds a few hours after giving her statements.
    At his trial, the defendant objected to her statements as hearsay and as violative of his confrontation rights, but the statements were admitted under the excited utterance exception as well as present-sense impression. The jury convicted the defendant and sentenced him to life. The lower court of appeals, noting the Supreme Court’s holding in Crawford, affirmed the conviction and ruled that Gonzalez was prohibited from benefitting, by his wrongdoing, in precluding Maria’s statements because of her unavailability (death).9 The Court of Criminal Appeals upheld and affirmed the lower court’s ruling.10

As one would expect, soon after the Court of Criminal Appeals issued its opinion in Gonzalez other Texas intermediate appellate courts followed the forfeiture by wrongdoing doctrine.11 For example, in Sohail v. State, the defendant allegedly struck his then-pregnant wife in the face after she had allegedly spilled hot tea in his lap. The victim left their home in Sugarland the following day and traveled to Carrollton, where her parents lived. She made a report to the Carrollton police at her parents’ insistence, then went back to Sugarland with her mother to make a report there as well. The victim obtained a protective order against her husband, which she later dropped because the defendant forced her to (according to her mother).
    At trial the victim refused to testify, even after being held in contempt of court. At a hearing conducted outside the presence of the jury to determine whether the victim’s out-of-court statements would be admitted at trial, the State’s theory was that they were admissible because the reason the victim was unavailable to testify was because of the defendant’s threats against her. The defendant’s theory was that the victim refused to testify because she feared that she might be prosecuted for perjury—she had previously given inconsistent statements about whether the defendant had intentionally struck her.12 The Houston Court of Appeals, citing to Gonzalez, stated that “physical unavailability is not the only way to find forfeiture by wrongdoing. Intimidation is a well-recognized basis for employment of forfeiture by wrongdoing.”13
    In another post-Gonzalez case, Carillo v. State,14 the Austin Court of Appeals looked at the trial court’s admission of the victim’s “dying declaration” during trial. The court ultimately did not address the applicability of the forfeiture by wrongdoing doctrine; however, after examining Gonzalez, the court stated: “The [forfeiture by wrongdoing] doctrine is often applied to situations in which the defendant committed the wrongdoing with the intent to procure the unavailability of the declarant as a witness” (emphasis added by the court), rather than one where the defendant killed someone out of sudden anger. However, the Court of Criminal Appeals is clear in Gonzalez that the forfeiture by wrongdoing doctrine “may apply even though the act with which the accused is charged is the same as the one by which he allegedly rendered the witness unavailable.”15

Giles v. California
By 2008, however, the U.S. Supreme Court re-examined forfeiture by wrongdoing in Giles v. California.16 Justice Scalia wrote the majority opinion which both narrowly construed the doctrine and limited its application, particularly when compared to the more expansive construction applied by the Texas Court of Criminal Appeals in Gonzalez.17
    In Giles, the court reviewed the decision of a California trial court which was trying Giles for the murder of his ex-girlfriend, Brenda Avie. Over defense objections, the trial judge had allowed Avie’s statements to a police officer, approximately three weeks before her death, when he responded to a domestic-violence call involving her and Giles. The statement to the officer described how Giles had grabbed and strangled her, how she then broke free and was punched in the face and head, and after breaking free again, that the defendant pulled out a folding knife, opened it, held it approximately three feet away from her, and threatened to kill her if he found her cheating on him.18
    The California court of appeals ruled that the admission of the victim’s testimonial statements at Giles’s trial did not violate the Confrontation Clause as construed by Crawford because Crawford recognized the doctrine of forfeiture by wrongdoing; the court concluded that Giles had forfeited his right to confrontation because he had committed the murder for which he was on trial and because his intentional criminal act ultimately had made the witness (victim) unavailable to testify. The California Supreme Court affirmed the lower court’s ruling on the same grounds.19
    The U.S. Supreme Court examined Avie’s statements in the context of whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court was a founding-era exception to the right of confrontation expounded in the Sixth Amendment.20 The court noted that in its opinion in Crawford, there were only two forms of testimonial statements that were admitted at common law even though they were unconfronted. One of these are statements made by someone “on the brink of death and aware that he was dying.” The court did not apply that particular historic exception in the Giles case because Avie’s out-of-court unconfronted statements were made three weeks before her death.21
    The second common-law doctrine, which they referred to as forfeiture by wrongdoing, allowed the introduction of statements of the witness who was “detained” or “kept away” by the defendant’s “means or procurement.” The terms used to define the scope of the forfeiture rule, the court pointed out, suggested that the exception applied only when a defendant “engaged in conduct designed to prevent the witness from testifying.” The rule required that the witness “had been kept out of the way by the prisoner, or by someone on the prisoner’s behalf, in order to prevent him from giving evidence against him.”22
    This majority opinion therefore found that the California Supreme Court’s theory of forfeiture by wrongdoing was not an exception to the Sixth Amendment’s confrontation requirement. It was not an exception established at the founding of the Republic, and it is not enough for a judge to determine that the defendant’s wrongful act made the witness unavailable to testify at trial. The court restated that the Federal Rule of Evidence entitled “forfeiture by wrongdoing”23 applied only when a defendant “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness” (emphasis added), further describing it as a rule “which codifies the forfeiture doctrine.”24
    The fundamental difference between the Texas Court of Criminal Appeals’ “more broad” interpretation and application of the forfeiture by wrongdoing doctrine in Gonzales, and its limitation as recognized by the U.S. Supreme Court in its application by Giles, is that now (post-Giles) there has to be some showing that the defendant committed the wrongdoing with the intent to prevent or cause a witness to be unavailable to testify. Unless the State can somehow show or demonstrate that intent to the trial court, the defendant might prevail on his Confrontation Clause claim.

Garcia v. State
It would seem now that the rather broad interpretation of forfeiture by wrongdoing, such as in Gonzalez25 or by the California courts of appeals in Giles,26 will no longer suffice to allow the State to entreat the trial judge to deny a defendant’s Sixth Amendment’s right to confrontation and deny the admission of out-of-court testimonial statements made by a witness who is otherwise unavailable to testify at trial. As was foreshadowed by the New Mexico case Romero,27 the best practice for prosecutors facing this situation is to establish and/or present evidence, during a hearing conducted outside the presence of the jury, to show the intent to wrongfully prevent the declarant from testifying at trial.
    This analysis comports to the approach taken by the Third Court of Appeals in Austin in Garcia v. State.28 It is a domestic violence case in which the defendant was accused of assaulting his common-law wife. Although subpoenaed, she did not appear to testify at the trial. The jury heard testimony from the victim’s mother, the emergency room physician who had taken the victim’s history during his examination and also testified as to the extent of her injuries, and the officers who took statements from and/or interviewed her.29
    Garcia objected to the admissibility of his victim’s out-of-court statements as violating his right to confront her during the trial. The trial court conducted a hearing outside the presence of the jury considering the evidence presented by both Garcia as well as the State. The trial court ruled in favor of the State and entered written findings of fact and conclusions of law finding that “the acts of the defendant show that he intended to keep the witness from testifying. As a result, the defendant forfeited his confrontation claims.”30
    The Austin court, in reviewing the defendant’s confrontation claim, reviewed the decisions of the U.S. Supreme Court in both Crawford and Giles and the Texas Court of Criminal Appeals in Gonzalez.31 It also took into account the findings of fact and conclusions of law made by the trial court. The court found that while there was no evidence of direct threats to the victim not to testify, evidence tended to show that Garcia, through his misconduct, encouraged and persuaded her to violate the subpoena and not appear in court to testify. The court concluded that because of the evidence, as demonstrated in letters, other documentary evidence, and the testimony of people who had knowledge of the relationship between Garcia and his victim, it could not find that the trial court abused its discretion by admitting the victim’s out-of-court statements. It found that Garcia had forfeited by wrongdoing his rights under the Confrontation Clause, thereby overruling his third point of error.32
    In a post-Giles domestic violence case from Massachusetts, Commonwealth v. Szerlong,33 the Supreme Judicial Court of Massachusetts found that an earlier opinion by its court in Commonwealth v. Edwards34 did not violate Giles because the court required that there must have been evidence of intent to procure the unavailability of a witness to testify.35

What’s a prosecutor to do?
Admittedly a trial prosecutor may not have much evidence for the trial court to make findings of fact and conclusions of law denying a defendant’s confrontational right under the Sixth Amendment. However, in most domestic violence cases, the case that eventually goes to trial is not the first time the protagonists have quarreled. Due diligence means anticipating the possibility that a subpoenaed victim might not appear at trial and a defendant may raise a confrontation objection. Gather evidence from the present case and any threats or inferences made by the defendant to discourage or hamper his victim’s appearance at trial. This should also include recordings of any jail calls. Keep that information and the list of witnesses who will testify regarding those circumstances in a separate part of your file but at the ready to counter any of the defendant’s Confrontation Clause objections, and preserve the record as to the trial court’s finding that the defendant waived his right to confront the witness by his wrongdoing.

1 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).
2 “For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.” Crawford¸ 541 U.S. at 62, 124 S.Ct. at 1370.
3 Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (2006).
4 “While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that “the rule of forfeiture by wrongdoing … extinguishes confrontation claims on essentially equitable grounds” (citations omitted). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Davis, 547 U.S. at 833, 126 S.Ct. at 2280.
5 Giles v. California, 554 U.S. 353, 128 S.Ct. 2678 (2008).
6 Crawford¸ 541 U.S. at 62, 124 S.Ct. at 1370; Davis, 547 U.S. at 834, 126 S.Ct. at 2280.
7 Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006).
8 Gonzalez, 195 S.W.3d at 115.
9 Gonzalez v. State, 155 S.W.3d 603, 610 (Tex. App.—San Antonio 2004).
10 Gonzalez, 195 S.W.3d at 126.
11 See Sohail v. State, 264 S.W.3d 251 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d); See also Carillo v. State, 2007 WL 541598 (Tex. App.—Austin 2007, no pet.) (memo. op.) (not designated for publication) (statement made by victim before his death was a dying declaration exception to the hearsay rule and the court did not reach issue of forfeiture by wrongdoing even though acknowledging expansion of the doctrine by Gonzalez).
12 Sohail, 264 S.W.3d at 255-256.
13 Id., at 259.
14 Carillo v. State, 2007 WL 541598, *6 (Tex. App.—Austin 2007, no pet.) (memo. op.) (not designated for publication).
15 Gonzalez, 195 S.W.3d at 125.
16 554 U.S. 353, 128 S.Ct. 2678 (2008).
17 195 S.W.3d 114 (Tex. Crim. App. 2006).
18 Giles, 554 U.S. at 357; 128 S.Ct. at 2681–82.
19 People v. Giles, 40 Cal.4th 833, 55 Cal.Rptr.3d 133, 152 P.3d 433 (2007)
20 Giles, 554 U.S. at 358; 128 S.Ct. at 2682–83.
21 Id., at 359.
22 Giles, 554 U.S. at 360-61; 128 S.Ct. at 2684.
23 Fed. R. Evid. 804(b)(6).
24 Giles, 554 U.S. at 367, 128 S.Ct. at 2687.
25 155 S.W.3d 603 (Tex. App.—San Antonio 2004).
26 554 U.S. 353, 128 S.Ct. 2678 (2008).
27 141 N.M. 403, 156 P.3d 694 (2007).
28 2012 WL 3795447 (Tex. App.—Austin 2012, pet. ref’d) (memo. op.) (not designated for publication).
29 Garcia, 2012 WL 3795447 at *1-*3.
30 Garcia, at *9.
31 Id., at *7-*8.
32 Id., at *9.
33 457 Mass. 858, 933 N.E. 633 (2010) (the defendant had been charged with committing an assault and battery on his girlfriend, they later got married and at a dangerousness hearing the victim refused to testify claiming her spousal privilege.The State successfully moved to admit hearsay statements made by the victim to her sister concerning the matter, before she married the defendant).
34 444 Mass. 526, 830 N.E.2d 158 (2005).
35 “We held that three factual findings are required for forfeiture by wrongdoing to apply: 1) the witness is unavailable; 2) the defendant was involved in or responsible for procuring the unavailability of the witness; and 3) the defendant acted with the intent to procure the witness’s unavailability.” Szerlong, 933 N.E. at 861.