Call Me: Court Of Appeals Of Utah Finds Husband’s 276 Calls To Wife Triggered Forfeiture By Wrongdoing

Based upon acts allegedly committed by a husband against his wife and daughter, the husband is charged with aggravated kidnapping, aggravated assault, and domestic violence in the presence of a child. Immediately after the incident leading to these charges, the wife calls the police, who photograph the scene of the crime and the injuries suffered by the wife, who also gives two witness statements to the police. As a result of the crimes charged, the court enters a no-contact order against the husband, who nonetheless calls the wife 276 times in advance of trial. When the husband’s trial commences, the wife invokes the spousal testimonial privilege and refuses to testify against the husband. Can the prosecition now introduce the wife’s statements to the police under the doctrine of forfeiture by wrongdoing? According to the recent opinion of the Court of Appeals of Utah in State v. Zaragoza, 2012 WL 4450360 (Utah App. 2012), the answer is “yes.”

In Zaragoza, the facts were as stated above. In addressing the husband’s appeal, the court noted that 

The doctrine of forfeiture by wrongdoing applies if the State can show “(1) the witness is unavailable at trial, (2) the witness’s unavailability was caused by a wrongful act of the defendant, and (3) the defendant’s act was done with an intent to make the witness unavailable.”

The husband did not dispute that the first and third prongs of this test were satisfied but claimed that the State had failed to prove the second prong by a preponderance of the evidence. Specifically, he claimed

that the court’s application of the doctrine was overly expansive, essentially concluding that any act, including encouraging a spouse to withhold privileged testimony, undertaken with the intent to procure a witness’s unavailability is per se wrongful.

The Court of Appeals of Utah disagreed, concluding that

In challenging the court’s wrongful act determination, Defendant fails to acknowledge that the specific acts the court considered in its determination—276 phone calls Defendant initiated from jail—were undertaken in violation of a no-contact order. The trial court specifically referenced those phone calls and the content of those calls and found that there was more than a preponderance of the evidence to show that “this defendant engaged in witness tampering to attempt to induce someone from withholding testimony, change somebody’s testimony, influence the testimony that may be given at trial.” These findings are sufficient to establish the second prong of the test that Defendant caused Wife’s unavailability by the wrongful act of contacting Wife by phone 276 times in violation of a no-contact order.

I certainly agree with this conclusion but wonder what result the Court of Appeals of Utah would have reached if there were not a no-contact order. The husband admittedly made the 276 calls to the wife to prevent her from testifying. Isn’t such witness tampering wrongful regardless of whether it is done in violation of a no-contact order? In other words, if an act is done with the intent to make a witness unavailable, can the act ever be anything other than wrongful?

-CM