A well-won Crawford case came down today. I hope it is something we all get to use.

Ray Gonzalez, No. 04-03-00819-CR, 12/15/04

In this case, however, we need not resolve whether Maria=s statements to the police were testimonial because Gonzalez forfeited his right of confrontation under the doctrine of forfeiture by wrongdoing.[4] In Crawford, the court stated that it would continue to recognize the doctrine of forfeiture by wrongdoing, which Aextinguishes confrontation claims on essentially equitable grounds.@ Id. at 1370. As the Supreme Court explained more than a hundred years ago:

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own [the accused=s] wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.
Reynolds v. United States, 98 U.S.145, 158 (1879). Thus, the doctrine of forfeiture by wrongdoing Aembraces the equitable principle that a defendant who has rendered a witness unavailable for cross‑examination through a criminal act . . . may not object to the introduction of hearsay statements by the witness on Confrontation Clause grounds.@ People v. Giles, 19 Cal. Rptr. 3d 843, 847 (Cal. Ct. App. 2004). In light of this doctrine, we hold that Gonzalez is precluded from objecting to the introduction of Maria=s statements on Confrontation Clause grounds because it was his own criminal conduct (in this case, murder) that rendered Maria unavailable for cross-examination.[5]

Gonzalez argues that a defendant forfeits a Confrontation Clause objection through wrongdoing only when he is charged with or is under investigation for a crime, and wrongfully procures the witness=s absence from trial with the intent of preventing the witness from testifying about that crime. See United States v. Houlihan, 92 F.3d 1271, 1279-80 (1st Cir.1996) (describing the doctrine of forfeiture by wrongdoing as applying when the defendant causes a potential witness=s unavailability by a wrongful act undertaken with the intention of preventing the potential witness from testifying at a future trial). Gonzalez asserts that because there is no evidence he shot Maria with the intention of preventing her testimony at a future trial, the doctrine of forfeiture by wrongdoing does not apply. Although United States v. Houlihan suggests that the procurement of the witness=s absence must be motivated by a desire to silence the victim for the forfeiture by wrongdoing doctrine to apply, we see no reason why the doctrine should be limited to such cases. See Giles, 19 Cal. Rptr. 3d at 848. A defendant whose wrongful act renders a witness unavailable for trial benefits from his conduct if he can use the witness=s unavailability to exclude otherwise admissible hearsay statements. This is true whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable.[6] Gonzalez=s first issue is therefore overruled.

[This message was edited by John Stride on 12-15-04 at .]

[This message was edited by John Stride on 12-15-04 at .]

So, how would you apply this case to the defendant who suggests to your family violence victim that she should keep her damned mouth shut, or else?

Often we can imply that the defendant is threatening the victim but don't have enough evidence to proceed with a retaliation case.

Can a creative application of this case be used to admit testimony from the victim given to officers when the victim now is silent and refusing to tell her story?

Really I want this case to allow us to rattle off all the statements the victim gave us at the time of the incident which she now won't testify to at trial. (Granted if the victim takes the stand and changes her story you can ask about the previous statements, but I'd rather not have to put the victim on the stand at all.

So, am I reaching? Or, is there some legal basis for this type of argument?

The 4th COA seems to have answered your question, at least in their jurisdiction, when it addressed the position of the defense. If the defendant procures the witness's unavailability and that can be proved, Crawford would appear not to apply.

Philip,

I think the forfeiture by wrongdoing exception is ripe for application in domestic violence cases--the very area where Crawford is likely to impede the introduction of hearsay statements the most. There are two APRI articles on the subject--see the Crawford watch section of the TDCAA website.

The basic argument is that the recantation (in domestic violence cases) or inabililty to testify (in child abuse cases where videotaped statements are admitted upon a showing that the child would be psychologically unavailable) is the direct result of the defendant's actions. In cases where the defendant threatens the witness, I think it's a clear cut application of forfeiture by wrongdoing. In cases where a child victim is deemed psychologically unavailable, it's a further stretch, but the logic in Gonzales (defendant doesn't have to intend to suppress the testimony so long as that is the natural result) should follow. The problem is that I have found no case law on forfeiture by wrongdoing in Texas (note the San Antonio opinion cites California and Federal cases). Since the application to recantations and child statements is fairly novel, it seems like a strange place to start building case law in Texas.

I'd be happy to know if anyone has used these arguments successfully.

Just thought I'd weigh in on the topic. I'm the guy that argued the case before the Fourth Court and advanced the forfeiture argument. I'm pleasantly surprised that they agreed with me.

In any event, I believe that the argument should be used as often as possible, in family violence cases in particular. Remember, we don't have to establish the wrongdoing beyond a reasonable doubt (there is somewhat of a split as to whether the burden is by clear and convincing or simply preponderance). I think that this may cause some problems with lower court judges who are reluctant to do anything "new", but post Crawford we need to be ready with all our arguments. I co-authored a law review article dealing with forfeiture a few years ago that gives some general background on the doctrine and cites many of the federal cases that have dealt with it. This might be helpful in preparing your cases, the cite is 31 St. Mary's L. J. 99 ((please excuse the shameless plug).

And don't forget that in a footnote, the Fourth Court seems to agree that the excited utterance statements made by the victim were non-testimonial. Other states have taken the position that "true" excited utterances cannot be testimonial. Since excited utterances are common in the typical domestic violence situation, prosecutors should also be making this argument.

If any of you have any questions, please let me know.

Rico

I know this guy Rico (and work with him), and his reply really is a shameless plug for his law review article. He is a giant ego maniac. So don't give him too many kudos. (hahahaha!).

There is nothing wrong with a occasional plug. I mean, when you take the time to write something, you want others to read it, right? It's not like any of us are getting rich or anything. So, plug away.

You can purchase autographed photos of me writing the article on ebay for $19.99. They make great stocking stuffers.

Seriously, I think the background is important for trial lawyers who need to explain this to judges who aren't familiar with the doctrine or how it is applied. We've never had a use for it in Texas given our somewhat limited hearsay exceptions. Since the Federal Rules of evidence are more expansive than ours (residual hearsay exception and a special rule on forfeiture by misconduct), that is where we'll find the forfeiture cases.

[This message was edited by Rico Valdez on 12-17-04 at .]

From the TDCAA weekly cases:

Gonzalez v. State--Fourth Court of Appeals

Summary: Officers questioned a shooting victim at her home where she described the defendant, where he lived, and that he stole her truck. The victim died, but her statements were admitted at trial.

Holding: The 4th Court of Appeals concluded the statements qualified as excited utterances. While a Crawford issue arose, the 4th Court of Appeals declined to address whether the statements were testimonial because defendant forfeited his right of confrontation under the doctrine of forfeiture by wrongdoing.

Giles is going to be argued tomorrow at SCOTUS.

http://www-personal.umich.edu/~rdfrdman/GilesPreview.pdf

oral arguments should play at

http://www.oyez.org/cases/2000-2009/2007/2007_07_6053/