Forfeiture by Wrongdoing

The Prosecutors' Resource (Oct. 2012)

Posted: 15 Mar 2013

See all articles by Michal Gilad

Michal Gilad

University of Pennsylvania Law School

Date Written: October 1, 2012

Abstract

Forfeiture by wrongdoing is a longstanding exception to a defendant’s Sixth Amendment right to confront the witnesses against him. In most jurisdictions, where a defendant has caused a victim or witness to be unavailable for trial, with the intention of making the victim or witness unavailable, “testimonial” hearsay statements by that victim or witness will be admissible under the doctrine of forfeiture by wrongdoing. The doctrine relies on the theory that the defendant has, by his own wrongful actions, forfeited his right to confront that victim or witness. Federal courts, under Section 804(b)(6) of the Federal Rules of Evidence, and most states, by rules, statutes, or application of common law principles, have established forfeiture by wrongdoing as an exception to the right of confrontation and recognizing the equitable result of allowing such hearsay to come before the jury.

This Resource will explain the historical context of the doctrine, identify the relevant issues to be determined before evidence is admitted under the doctrine, and suggest the means by which the prosecutor can satisfy the burden of proof at a preliminary forfeiture hearing to determine the admissibility of the hearsay statements. The Resource also includes a sample motion and accompanying brief to illustrate how the facts of a case can be presented in a persuasive manner to justify admission of the absent witness's statements.

Keywords: Forfeiture by wrongdoing, Sixth amendment, confrontation caluse, constitution, criminal law, criminal procedure, testimony, witness, victim, gender violence, domestic violence, reynolds, women, Crawford, Giles, Roberts, Davis, evidence, hearsay

Suggested Citation

Gilad, Michal, Forfeiture by Wrongdoing (October 1, 2012). The Prosecutors' Resource (Oct. 2012), Available at SSRN: https://ssrn.com/abstract=2178094

Michal Gilad (Contact Author)

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

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