Also known as: forfeiture by misconduct exception · forfeiture-by-misconduct · forfeiture by misconduct · forfeiture by wrongdoing exception · forfeiture-by-wrongdoing
Written by attorneys · grounded in primary & secondary sources — see below
A hearsay exception permitting admission of an unavailable declarant's out-of-court statements against a party that wrongfully caused the declarant's unavailability intending to prevent testimony. The exception requires proof by a preponderance that the party engaged in or acquiesced in the wrongful conduct and acted with the specific purpose of silencing the witness. Mere causation of unavailability without that intent does not trigger the exception.
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Frederick Ferguson sues Fisher Foods after a workplace injury. A key coworker is deported following a company immigration audit that began months earlier. The court finds the audit was not timed to block testimony and admits no evidence that the company acted to prevent the coworker from testifying. Because intent is missing, the forfeiture-by-misconduct exception does not apply and the coworker's statements remain excluded.
Forrest Falconer sues Fairview Manufacturing for product defects. After a line supervisor is subpoenaed, the company's manager threatens blacklisting if the supervisor testifies. The supervisor immediately accepts an overseas assignment and cuts off contact. The court finds the threat caused the unavailability with the purpose of preventing testimony, so the forfeiture-by-misconduct exception applies and the supervisor's prior statements are admitted against the company.
No. Any wrongful conduct suffices if undertaken with the purpose of preventing testimony. Reporting immigration status or threatening blacklisting can qualify when the timing and statements show intent to silence a witness.
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The proponent must show by a preponderance that the declarant is unavailable, that the party against whom the statement is offered wrongfully caused or acquiesced in causing the unavailability, and that the party acted with the specific intent to prevent testimony.
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No. The Supreme Court requires proof that the defendant engaged in conduct designed to prevent the witness from testifying. Causation alone is insufficient without the requisite intent.
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Yes. The rule operates in both civil and criminal proceedings whenever a party wrongfully procures a declarant's unavailability to block testimony.
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No. Once unavailability and the required intent are shown, the exception supplies an independent basis for admission without requiring the proponent to seek continuances or other relief first.
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