On Friday, the Supreme Court granted cert on a California case looking at the doctrine of forfeiture by wrongdoing as an exception to the general right of confrontation. From SCOTUSblog:

The Confrontation Clause case to be heard -- Giles v. California (07-6053) -- tests whether an accused person has a right to bar the testimony of a witness who is unavailable for trial, if the accused caused that absence by killing her - but did not do so with the specific aim of silencing the witness. There is a widespread dispute among lower courts on the issue of whether the so-called forfeiture by wrongdoing rule--a principle that dates from an 1879 Supreme Court decision, Reynolds v. U.S. The case the Court plans to hear involves a Los Angeles man, Dwayne Giles, who shot his former girlfriend to death, but insisted it was in self-defense and thus he did not intend her to die. His lawyers objected to the use at his trial of the testimony of a Los Angeles police officer because the officer was relaying statements by an absent witnesss -- the girlfriend, whom the officer had interviewed three weeks before the shooting. The testimony was aimed at showing that Giles had a history of domestic violence.

It seems that if there is a history of domestic violence, the doctrine should apply. Absence such a history, what other limits on the doctrine would there be?

JAS

If the defendant caused the witness' absence (through death or any other means), then the exception should apply.

Estoppel based upon intent to silence would be almost impossible to prove for us state prosecutors. The feds might be more likely to have the evidence for that, with all their wiretap stuff: "You go wack Pauly Walnuts before he sings to the feds."

Estoppel based upon causing the result ought to be enough. After all, the defendant still have the protections provided by the hearsay rules.

[This message was edited by JohnR on 01-15-08 at .]

But doesn't that beg the question? If we must prove the defendant committed the murder of the witness before the hearsay witness statement can come in, who decides that we've met that burden? After all, if the jury decides we've proved the murder, then they have already found the defendant guilty and we don't need the hearsay evidence. Assuming we can't prove the defendant guilty of the murder without the evidence of the statements by the deceased, then you're in a catch-22: the hearsay proves him guilty, but you can't introduce the hearsay without first proving he's guilty.

I suppose if the law were to provide a lesser threshold, such as requiring that the hearsay not be introduced unless there was a least a preponderance of the evidence that he committed the act which silenced the witness. What do the cases say about how much evidence you have to have to establish forfeiture by wrongdoing in the first place?

I agree with the proposition that the accused's killing of the witness should estop his Confrontation complaint, since he was the one who made sure confrontation was impossible. I'm just not sure how that works with the presumption of innocence.

All evidence is admissible upon the decision of the judge. The judge hears supporting information (that may be presented in many forms, e.g., affidavit, recordings, etc.) and just decides if it meets the standard (preponderance?) for admissibility.

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Originally posted by JB:
The judge hears supporting information (that may be presented in many forms, e.g., affidavit, recordings, etc.) and just decides if it meets the standard (preponderance?) for admissibility.

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Which is the question that I suppose I'm asking. What is the threshold for the judge to let it in? That a reasonable juror could find that the defendant caused the death of the missing witness beyond a reasonable doubt? That there is probable cause to believe the defendant caused the death of the missing witness? Can the proffered hearsay evidence be used to consider whether or not the evidence is sufficient to justify its admission before the jury?

The Rules of Evidence generally don't apply when a judge is accepting evidence to decide whether something is admissible. In other words, the manner in which evidence is presented and the type of evidence that may be considered is looser than what applies in front of a jury. So, yes, the judge (unlike the jury) may consider hearsay in deciding the admissibility of the victim's statement. The information may even be contained in the very words that you are seeking to admit. For example, if the victim is reported to have said to police the day before her death, "My boyfriend Bob keeps beating me and says he will kill me if I come to the police," and the victim, who was taken home from the station by the boyfriend, turns up dead the next day, then the statement itself might justify dropping application of the 6th Amendment at his trial for murder.

What's the appropriate theory of admissibility over a hearsay objection? Dying declaration? Present Sense Impression? Would this work in Texas?

Letter from dead sister still haunts brothers

From Gary Tuchman
CNN

ELKHORN, Wisconsin (CNN) -- Every time Julie Jensen's brothers hear the letter read, it brings everything back. They say they wonder why their sister didn't tell them about her marital woes and how tormented she might have been in her final weeks. Even more, they wonder if they could have saved her.

"I hear her voice every time I hear the words in that letter," said Jensen's brother Paul Griffin.

"If she would have come to any one of us for support ... we would have helped her."

Griffin is referring to a note written by Jensen on November 21, 1998. It was in a sealed envelope she gave to a neighbor with instructions to turn it over to police if anything ever happened to her. Twelve days later, Jensen's husband, Mark, found her dead in her bedroom, and the neighbor handed the note over to police.

A decade later, Mark Jensen is standing trial, accused of poisoning his wife with ethylene glycol, commonly used as antifreeze.

The defense says she killed herself and blamed her husband. As a result of a rare legal ruling, prosecutors are allowed to use the letter as evidence.

In the note, Julie Jensen says that her relationship with her husband is deteriorating and that "if anything happens to me, he would be my first suspect." She also mentions having an affair seven years before then. Read the letter for yourself �

"I pray I'm wrong + nothing happens ... but I am suspicious of Mark's suspicious behaviors + fear for my early demise," the letter says.

It ends with her mentioning her love for her two sons, who were 8 and 3 at the time, as well as her husband.

"She believed in Mark as a person, as a husband. She wanted it to work out," said Patrick Griffin, the youngest of her four brothers.

Patrick said he constantly tries to put himself in his sister's shoes and what must have led her to write the letter. "I can't imagine how scared she was," he said. Watch tearful brother describe being in room with the accused �

Prosecutors allege Mark Jensen wanted her dead so he could be with his mistress, whom he has since married. But defense attorneys maintain that Julie Jensen had been treated for depression -- including just days before her death -- and killed herself to get back at her husband.

"Finally, after nine long years, Mark Jensen can clear his name," attorney Craig Albee told the court in his opening statement.

There have been many legal twists in the case. Mark Jensen wasn't arrested until 2002 when prosecutors felt they finally had enough evidence to prosecute.

That Julie Jensen's letter is even being allowed is a rarity. Such letters are generally not allowed in court because a defendant has a right to cross-examine his accuser. But the Wisconsin Supreme Court ruled that right was forfeited because of probable cause the defendant, Mark Jensen, prevented the witness from testifying.

And so nearly 10 years after Julie Jensen died, a jury is hearing arguments about her death. Watch testimony reveals 2,000 Internet searches for "poison" �

The prosecution argues that she was weakened from poison and ultimately suffocated with a pillow by her husband. The defense strongly disagrees, saying the suffocation theory came up only after an inmate jailed with Mark Jensen was given a lesser sentence to testify against him.

The trial is expected to take up to two months. Julie Jensen's four brothers are attending the proceedings in Walworth County, Wisconsin. Mark Jensen's parents are also in the gallery.

Mark Jensen faces the possibility of life in prison if convicted. His and Julie's two sons, who are now 17 and 12, live with their stepmother while their father remains jailed without bond.

Paul Griffin says he hopes his sister's husband is held accountable. "In the words of his defense lawyer -- finally. I get to say finally," he said, fighting back tears. "Julie's voice is going to be heard, finally."

CNN's John Murgatroyd and Wayne Drash contributed to this report.

[This message was edited by David Newell on 01-18-08 at .]

803(3)--"State of mind"? I must admit that I get uncomfortable when our side relies on this rule.

I haven't seen the letter from the grave before.

What about the more normal deal in spousal murders--victim tells her girlfriend, in a regular every day conversation, that her ex-husband beat her and raped her on occasion. Admissible in punishment when he finally kills her?

[This message was edited by JohnR on 01-18-08 at .]

Honestly, I don't know the answer, (particularly with the facts given), but I thought I'd throw it out there because, like you, I've never seen the letter from the grave before. With Fischer emphasizing that court should look to the underlying rationale of reliabilty when determining whether hearsay objections fit, I just thought it was a pretty thought provoking scenario.

Does state of mind work when it's being offered to show the defendant's plan, not hers?

I honestly have never understood that exception. I guess I need to read about it in Cochran's book.

I've always thought that distinguishing excited utterance from presence sense impression from state of mind was the lawyer equivalent of nuclear fission.

The Supreme Court vacates and remands the judgment affirming the conviction.

Very sad.

The Lizard Man is innocent!

Not sad yet. The case was not vacated and AFFIRMED. It was vacated and REMANDED for the lower court to reconsider whether the statements are admissible under the forfeiture by wrongdoing theory, as limited by the SCOTUS opinion. The lower court is free to infer from the available evidence that the defendant killed the victim to prevent her from being available to report on his crimes. SCOTUS makes it very clear that the lower court may draw inferences from the evidence; there need not be any express statements, such as, "I'm going to kill you so you can't talk to the police."

So, the rule was narrowed, not eliminated. Hope lives.