Also known as: forfeited by wrongdoing · forfeiture-by-wrongdoing · forfeiture doctrine · wrongdoing forfeiture
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine under which a criminal defendant forfeits Confrontation Clause protection against the admission of a witness's testimonial hearsay statement. The forfeiture occurs only when the defendant engaged in wrongdoing that was intended to, and did, procure the declarant's unavailability as a witness.
Freya Freeman told an associate that Fernando Farrell was cooperating with investigators about her bribery scheme. The associate later killed Farrell. Prosecutors offered Farrell's recorded statement against Freeman at trial. The court excluded the statement because the prosecution could not prove Freeman disclosed the information to prevent Farrell from testifying.
Francisco Frost paid a gang member to assault Floyd Franklin after Franklin gave a sworn statement accusing Frost of embezzlement. Franklin died from the attack. The prosecution offered Franklin's statement at Frost's trial. The court admitted the statement after finding that Frost arranged the attack specifically to keep Franklin from testifying.
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Faye Fuller arranged a staged mugging of Farid Farahani solely to punish him for ending their relationship. Farahani had earlier given investigators a recorded statement about Fuller's obstruction of justice. Prosecutors sought to introduce the statement at Fuller's trial. The court excluded it because the facts showed no intent by Fuller to prevent Farahani from testifying.
Flagship Logistics confronted its employee about filing a safety complaint that could lead to regulatory action. The employee later died in a suspicious accident. The company offered the employee's prior written complaint in a related proceeding. The court excluded the statement because the evidence did not establish that the confrontation was undertaken to keep the employee from testifying.
No. The doctrine requires proof that the defendant acted with the specific intent to prevent the witness from testifying. Mere causation of unavailability, even through serious wrongdoing, is insufficient.
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The prosecution must show that the defendant engaged in wrongdoing that was intended to, and did, procure the declarant's unavailability as a witness. The intent element focuses on silencing testimony rather than other motives such as personal revenge.
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No. If the wrongdoing was undertaken solely to punish the witness for ending a relationship or for other non-testimonial reasons, the defendant does not forfeit confrontation rights even though the conduct caused unavailability.
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Rule 804(b)(6) codifies the hearsay exception for statements offered against a party that engaged in or acquiesced in wrongdoing intended to, and that did, procure the declarant's unavailability. The constitutional doctrine under the Confrontation Clause imposes the same intent requirement.
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…to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. 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. See Reynolds v. United…