Forfeit Loss; Court of Appeals of Michigan Bungles Forfeiture by Wrongdoing Ruling

Similar to its federal counterpart, Michigan Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Assume a defendant is charged with a crime such as battery kills a witness for the prosecution who planned to testify at that trial. Clearly, this “forefeiture by wrongdoing” exception would apply at the robbery trial. But should it also apply at the defendant’s trial for murdering the witness? According to the recent opinion of the Court of Appeals of Michigan in People v. Aiden, 2014 WL 4930703 (Mich.App. 2014), the answer is “no.” I disagree.

In Aiden, Jonathan Aiden 

and his uncle Shane Roscoe broke into the Jim Bradley Pontiac car dealership to steal property when they were discovered by William Kenney, a twenty-year employee of the dealership, whom they beat and then struck with a motor vehicle. Kenney was found later that morning in the dealership parking lot with severe head and facial injuries. He later died but not until after making three statements to police about who had attacked him, and picking photographs of defendant, Roscoe, and another individual from an array shown to him.

The prosecution later charged Aiden with murder, claiming that he killed Kenney at least in part to prevent Kenney from testifying against him regarding the robbery. As such, the prosecution admitted Kenney’s three statements at Aiden’s murder trial pursuant to Rule 804(b)(6).

On Aiden’s ensuing appeal, the Court of Appeals of Michigan found this to be error, concluding, inter alia, that

the Giles majority—as well as Justice Souter in his partial concurrence (joined in by Justice Ginsburg)—emphasized that in a case like this, where the defendant is on trial for the murder of the now unavailable witness, the judge should not be allowed to find defendant guilty (or essentially that) of murdering the to-bewitness before the jury finds defendant guilty or not guilty of that same crime. See Giles, 554 U.S. at 374 (SCALIA, J.); id. at 379 (SOUTER, J. concurring in part). Here, that is precisely what the trial court would have had to do—decide (likely by a preponderance of the evidence) whether the evidence proved that defendant caused Kenney to be unavailable at trial, i.e., whether defendant killed Kenney. But allowing that to happen is, according to the Giles Court, “repugnant to our constitutional system of trial by jury….” Id. at 374. 

I’m not really sure which language the Court of Appeals is citing from the Supreme Court’s opinions in Giles v. California. The only language it actually quotes — the “repugnant to our constitutional system” language — relates to the general contours of the common law forfeiture exception.

As for the specific argument that forfeiture by wrongdoing can’t apply at the defendant’s trial for murdering the prospective witness, well…let’s take a look at my essay, The Purpose-Driven Rule. In that essay, I note that Scalia says in Giles,

We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony.

Meanwhile, I note that Justice Souter’s concurrence specifically mentions the possibility of forfeiture applying when “a defendant is prosecuted for the very act that causes the witness’s absence, homicide being the extreme example.”

Somehow the Court of Appeals of Michigan construes these opinions as foreclosing a judge from finding forfeiture at a defendant’s trial for murdering a prospective witness. I think the above quotes speak for themselves.

-CM