Unauthorized Transfer?: Should Courts Apply A Transferred Intent Doctrine Of Forfeiture By Wrongdoing?

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Over the last few days, I have posted several entries about the doctrine of forfeiture by wrongdoing. In the comments sections of these posts, there has been a lively debate about whether the Supreme Court has implicitly enorsed or repudiated a transferred intent doctrine of forfeiture by wrongdoing and whether transferred intent makes sense in the context of forfeiture. The key case often cited in support of the transferred intent doctrine is United States v. Gray, 405 F.3d 227 (4th Cir. 2005), and I have always taken that case as gospel on the subject. But, upon further review, I’m not sure that the Fourth Circuit’s opinion holds water.

In Gray, Robert Gray brought criminal charges against Josephine Gray, alleging that she had assaulted him at his workplace by swinging at him with a club and lunging at him with a knife. Robert then turned up dead, and Josephine was prosecuted for his murder. At trial, the prosecution admitted statements that Robert made pursuant to the doctrine of forfeiture by wrongdoing, leading to Josephine’s conviction.

She then appealed, claiming that, even if she killed Robert, it would have been to prevent him from testifying at the assault trial and not to prevent him from testifying at the murder trial, with such a trial not even being possible until after she (allegedly) killed him. The Fourth Circuit disagreed, finding that

The text [of Rule 804(b)(6)] does not require that the declarant would otherwise be a witness at any particular trial, nor does it limit the subject matter of admissible statements to events distinct from the events at issue in the trial in which the statements are offered. Thus, we conclude that Rule 804(b)(6) applies whenever the defendant’s wrongdoing was intended to, and did, render the declarant unavailable as a witness against the defendant, without regard to the nature of the charges at the trial in which the declarant’s statements are offered. 

In justifying this conclusion, the Fourth Circuit found that

Our interpretation of Rule 804(b)(6) advances the clear purpose of the forfeiture-by-wrongdoing exception. The advisory committee noted its specific goal to implement a “prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself.” Fed.R.Evid. 804(b)(6) advisory committee note (internal quotations omitted); see also United States v. Thompson, 286 F.3d 950, 962 (7th Cir.2002) (stating that “the primary reasoning behind this rule” is “to deter criminals from intimidating or ‘taking care of’ potential witnesses against them”). More generally, federal courts have recognized that the forfeiture-by-wrongdoing exception is necessary to prevent wrongdoers from profiting by their misconduct. See Reynolds, 98 U.S. at 158–59 (holding that a criminal defendant waives his right to confront a witness whose absence his own misconduct procured and stating that this rule “has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong”); Emery, 186 F.3d at 926 (stating that the Rule “establishes the general proposition that a defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness”); White, 116 F.3d at 911 (stating that “where the defendant has silenced a witness through the use of threats, violence or murder, admission of the victim’s prior statements at least partially offsets the perpetrator’s rewards for his misconduct”); Houlihan, 92 F.3d at 1279 (applying the forfeiture-by-wrongdoing exception and noting that “courts will not suffer a party to profit by his own wrongdoing”).

So, does this analysis make sense? If Josephine were being prosecuted for assault, the answer is a clear “yes.” Without the murder, Robert could have testified against her at the assault trial, which could have led to her conviction and all of the direct and collateral consequences that result from a conviction. Therefore, if Josephine killed Robert and forfeiture did not apply, she would profited from her misconduct at the assault trial. In other words, she would be in a better position than a similarly situated defendant who did not kill her assault victim, who could then testify against her at the assault trial.

But what about at Josephine’s murder trial? Well, this gets back to Josephine’s argument. That murder trial could not have existed but for Josephine’s act of killing Robert. This is why Josephine’s act of killing Robert would not have resulted in forfeiture if there were no assault trial pending at the time of the murder. This is the clear message from Giles v. California. For forfeiture to apply, at a minimum, there must be an intent to render the victim unavailable to testify at some existing or anticipated trial.

But if there could not have been a murder trial without the killing of Robert, how could Josephine profit from the killing at her murder trial? A victim can never testify at a murder trial because murder is a result crime, meaning that the victim has to be dead for the prosecution to proceed. Without the victim’s death, the defendant could only be prosecuted for attempted murder. So, could Josephine be in a better position than any other murder defendant? The answer seems to be that she was not because a murder victim can never testify.

-CM