To Everyone’s Benefit: Rethinking The Positive & Negative Components Of Forfeiture By Wrongdoing

A few days ago, I posted an entry about the negative component of forfeiture by wrongdoing and why I think it tends to show that courts should apply an intent + causation test for forfeiture rather than an intent + causation + benefit test for forfeiture that relies upon counter-factual thinking. Upon further reflection, however, the situation appears a good deal more complicated than I first thought. The topic of this post will be the following two situations: In situation one, Dan is charged with murdering Vince, and William confesses to Fred that he murdered Vince. When William is later called to the police station, he denies murdering Vince and says that it was Dan who murdered Vince. Dan then kills William. In situation two, Dan is charged with murdering Vince. Immediately after the shooting, which took place in an alley, WIlliam runs out from the alley and shouts to Bill, “Oh my God! Carl just shot Vince!” When William is later called to the police station, he says, “I made a mistake. Carl looks a lot like Dan. But it was actually Dan who shot Vince.” Again, Dan then kills William. How does the negative component of forfeiture by wrongdoing apply in these two situations?

Federal Rule of Evidence 804(a) sets forth situations in which a declarant is “unavailable” as a witness. In turn, Federal Rule of Evidence 804(b) contains several exceptions to the rule against hearsay that are dependent on the declarant being “unavailable” at trial. The last paragraph of Federal Rule of Evidence 804(a), however, provides 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.

So, what this means is that in situation one, even though William is “unavailable” and his statement would otherwise qualify for admission under Federal Rule of Evidence 804(b)(3), Dan cannot introduce William’s statement because he intentionally caused William’s “unavailability.” Therefore, William is not “unavailable” for purposes of Dan introducing his statement. In other words, based upon his purpose-drive wrongdoing, Dan has forfeited his ability to rely on the hearsay exceptions contained in Federal Rule of Evidence 804(b).

In my prior post, I gave the example of a slightly different situation to explain why I think that forfeiture by wrongdoing should not require counter-factual thinking and only apply if the defendant would have benefited from his wrongdoing. In this hypothetical, Dan thinks that William was going to change his tune about the murder, but he is wrong. WIlliam confessed to the crime and was going to invoke his Fifth Amendment privilege against self-incrimination. But Dan killed him because he thought WIlliam was going to change his tune. The way I see it, the last paragraph of Federal Rule of Evidence 804(a) should apply even though Dan would not have benefited from his wrongdoing because he intended to render William unavailable to testify at trial and caused him to be unavailable.

But now, let’s look at situation two. In this situation, William’s initial statement likely qualifies as an excited utterance under Federal Rule of Evidence 803(2). And, despite Dan’s wrongdoing, he will be able to introduce William’s excited utterance at trial. All the last paragraph of Federal Rule of Evidence 804(a) does is prevent William from being declared “unavailable” for purposes of Dan introducing his statement. But because Rule 803(2) does not depend on William being unavailable, there is nothing to prevent Dan from introducing the statement.

Now, under my intent + causation theory of forfeiture by wrongdoing, this doesn’t make sense. Dan intended to render WIlliam unavailable at trial, and his wrongdoing caused him to be unavailable. Doesn’t this mean that Dan should be deemed to have forfeited his ability to introduce William’s excited utterance?Conversely, under an intent + causation + benefit theory with counter-factual thinking, this does make sense. William’s excited utterance would have been admissible even in the absence of Dan’s wrongdoing, so there is no need to preclude Dan from introducing William’s statement because Dan is not otherwise benefiting from his wrongdoing.

All of this has left me pretty confused. Should we think about the positive and negative components of forfeiture by wrongdoing in the same way? Does it make sense for wrongdoing parties to be able to use Federal Rule of Evidence 803 to admit the statements of witnesses that they intentionally caused to be unavailable? I’m not sure.

-CM