Two Wrongs: Forfeiture by Wrongdoing & the Alternate Suspect

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

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

What’s interesting about Rule 804(b)(6) is that it apparently does not allow a defendant to present evidence that an alternate suspect killed the victim to prevent her from testifying/reporting. At least, that was the outcome in the prosecution of Jason Tibbs.

Tibbs was just found guilty in the cold case murder of Rayna Rison. The prosecution’s theory of the case was that the now 39 year-old Tibbs strangled the then-16-year-old Rison to death in 1993 for refusing to be his girlfriend.

The defense’s theory of the case was that Ray McCarty, Rison’s brother-in-law, was the murderer. Indeed, McCarty was indicted for Rison’s murder back in 1998. To prove its case, the defense sought to introduce a police report from 1989. According to an article from WSBT,

The report is a statement signed by Rison, who was 13 years old at the time, stating that McCarty threatened to kill her if she told anyone about their sexual relationship.  

WSBT obtained that statement, part of which reads, “Ray said that ‘If I didn’t do as he asked of me he would hurt me, and he said that if I ever told, he would kill me.'”  

The trial court, however, deemed the police report inadmissible hearsay. It was, however, revealed to jurors during Wednesday’s testimony that McCarty was previously convicted for child molestation after it was discovered he had impregnated Rison. But the police report was deemed inadmissible, a decision that chagrined defense counsel

“First of all, it relates directly to Ray denying he ever threatened to kill Rayna,” defense attorney John Tompkins told WSBT. “So in terms of denial, we think it’s relevant to show he’s lying once again. Secondly, she said he threatened to kill her if she ever told anyone about a sexual relationship between them, back in 1989. Then she began to tell people about a sexual relationship in 1993, and shortly thereafter, ended up dead.”

Legally, I think the court got it right. Looking back at Rule 804(b)(6), forfeiture by wrongdoing only applies when it is a party that engages in the wrongdoing. But I think there’s an argument for expansion. Certainly, in the the Tibbs prosecution, there seemed to be some strong evidence that an alternate suspect killed Rison to prevent her from testifying/reporting. And if that’s the case, why shouldn’t the defendant be able to rely on the exception to admit otherwise inadmissible hearsay?

-CM