Should Forfeiture of Confrontation Clause Objection and Hearsay Objection with Respect to State of Mind Accusatory Statement by Battered Spouse Apply in Spousal Murder Case?: Crawford/Davis and Fed.R.Evid. 803(3) and 804(b)(6)
Criminal Law Bulletin #10, Vol. 43, No. 5, p. 771, September/October 2007
80 Pages Posted: 21 Feb 2008 Last revised: 25 Mar 2008
Pursuant to the Confrontational Clause, Federal Rules of Evidence 804(b)(6) and good public policy, forfeiture by wrongdoing making admissible otherwise barred statements of an unavailable declarant should apply solely when the conduct of the accused was intended to procure the unavailability of the declarant. Accordingly, forfeiture by wrongdoing should not be found applicable to an unavailable declarant's statements in a trial where the criminal defendant is being tried for a crime that resulted in the witness being unavailable, e.g., a spouse's murder. Forfeiture by wrongdoing applies solely in a trial for a different crime about which the defendant allegedly feared that the now unavailable declarants would testify.
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