Unauthorized Transfer Redux, Part 2: The Negative Component Of Forfeiture By Wrongdoing & Counter-Factual Thinking

As I noted a few days ago, there has been a debate on the Evidence Professor listserv regarding what a party has to prove to trigger application of the doctrine of forfeiture by wrongdoing. My position remains that a party merely has to prove intent + causation. For example, the prosecution would have to prove that a defendant engaged in wrongdoing that (a) was intended to render a prospective witness unavailable, and (b) caused the prospective witness to be unavailable. The opposing school of thought is that a party has to prove intent + causation + benefit. For example, the prosecution would have to prove that a defendant engaged in wrongdoing that (a) was intended to render a prospective witness unavailable; (b) caused the prospective witness to be unavailable; and (c) would benefit from the wrongdoing unless forfeiture applied. Under this analysis, the court would engage in counter-factual thinking to determine whether (c) has been proven. And, under this analysis, forfeiture by wrongdoing would not apply to a defendant who kills a prospective witness to prevent him from testifying at an original trial (e.g., a robbery trial) and who is now on trial for murdering the prospective witness. Why? Without the killing, there could be no murder trial, meaning that the defendant could not derive a benefit from his wrongdoing because there could not even be a murder trial without that wrongdoing.

As I have noted before, however, forfeiture by wrongdoing has both a positive and negative component. And, by looking at the negative component, I think we can again see why it doesn’t make sense to engage in counter-factual thinking.

The negative component of forfeiture by wrongdoing is contained in Federal Rule of Evidence 804(a). Rule 804(a) sets forth situations in which a declarant is “unavailabile,” with such unavailability being required for application of the hearsay exceptions contained in Federal Rule of Evidence 804(b). Rule 804(a), however, clearly states that

this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

I imagine that this portion of Rule 804(a) predominantly applies in two factual scenarios. Assume that a declarant makes a statement that would qualify for admission at trial if the declarant were unavailable. Let’s say, for instance, that Dan is charged with murdering Vince, and William says to a friend, “I was the one who killed Vince.” If William were unavailable at trial, this statement would qualify as a statement against interest under Federal Rule of Evidence 804(b)(3) if there were corroborating circumstances, and you have to imagine that William would be unavailable based upon invocation of the Fifth Amendment privilege against self-incrimination.

In a first scenario, assume that Dan thinks that William has changed his tune but is wrong in this thinking. So, Dan kills William so that he can introduce his statement as a statement against interest at trial when, in fact, he could have done this without killing William because William in fact had not changed his tune. I think that most looking at this hypothetical would think that this is a classic case where the negative component of forfeiture by wrongdoing should apply. And, under an intent + causation analysis, it would apply. But if we add benefit to the equation and engage in counter-factual thinking, it would not. Dan’s assumption was wrong, and he could have introduced WIlliam’s statement as a statement against interest at trial even without engaging in wrongdoing. Therefore, there would be no need to apply forfeiture because Dan would not have benefited from his wrongdoing based on application of counter-factual thinking.

In the second factual scenario, Dan correctly thinks that WIlliam has changed his tune. While WIlliam initially says that he killed Vince, he later tells the police that he did not kill Vince. Dan, wanting to present the defense at trial that WIlliam was the perpetrator of the crime, kills William. I think that most looking at this case would think that this is a case where both the positive and negative components of forfeiture by wrongdoing should apply. On the one hand, Dan has forfeited his Confrontation Clause and hearsay objections to the admission of William’s statement to the police. And, on the other hand, Dan has forfeited the right to present Dan’s confession to his friend. Moreover, this is what would currently happen based upon application of the doctrine of forfeiture by wrongdoing, and it makes sense under an intent + causation analysis.

But what if we require benefit and engage in counter-factual thinking? Well, if we engage in counter-factual thinking, the result in most cases would be that both the prosecution and the defense are on equal grounds if Dan does not engage in wrongdoing. There are many permutations of the counter-factual, but here is one: If Dan doesn’t kill William, you could easily see the prosecution not wanting to call WIlliam. He never directly incriminated Dan, and, in one of his statements, he admitted that he committed the crime charged. Meanwhile, based upon William’s shifting story, there likely aren’t sufficient corroborating circumstances for Dan to admit William’s initial confession under Federal Rule of Evidence 804(b)(3) (see, e.g., this post from earlier this month). In other words, neither side is helped or harmed by either statement in the counter-factual.

But now consider what happens based upon application of the positive and negative components of forfeiture by wrongdoing. The prosecution gets the benefit of William’s second statement, but the defense does not get the benefit of William’s first statement. Again, I think that this is the correct result, but the result doesn’t make sense if forfeiture is about eliminating the benefit that a party would derive from its wrongdoing. But if the goal of forfeiture is to deter wrongdoing directed towards undermining the integrity of the trial process, it makes sense to apply both the positive and negative components of forfeiture by wrongdoing.

-CM