Forfeiture by wrongdoing – Will original intent prevail?

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The recent guilty verdict in the hard-fought homicide by poisoning case of State v. Mark Jensen has focused public attention on the “forfeiture by wrongdoing” rule, the parameters of which will be further defined by the United States Supreme Court in Giles v. California, Docket No. 07-6053. The Court granted certiorari in Giles in January 2008, to review the California Supreme Court decision, which adopted a reflexive broad rule of admissibility of hearsay, when a criminal defendant causes the unavailability of a declarant witness, regardless of the reason, motivation or connection to what might have been the declarant’s testimony or the intent to prevent such. People v. Giles, 40 Cal. 4th 833, 152 P.2d 433 (2007).

The question the Supreme Court will decide in Giles is whether a criminal defendant forfeits his or her Sixth Amendment Confrontation claims upon a mere showing that the defendant has caused the unavailability of the declarant witness, as some courts have held, or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held? The result in this case will be important not only for Mr. Jensen’s appeal, but also for the rule of admissibility of hearsay at trial. Will the floodgates be opened and Crawford and the Sixth Amendment be trumped, or will a more reasoned rule be announced?

In Jensen, the Wisconsin Supreme Court ruled similarly to the California court in Giles and adopted a broad rule of admissibility. State v. Jensen, 2007 WI 26, 299 Wis.2d 267, 727 N.W.2d 518. Justice Louis Butler, in his concurrence and partial dissent, cautioned that the court should adopt the approach that not only must the defendant cause the witness to be unavailable, but that the purpose of such action was to prevent the witness from testifying. Giles and Jensen abandoned the specific public policy reason underlying the forfeiture rule that was adopted by the founders “in favor of a far more expansive doctrine not contemplated by the founders, or by the Sixth Amendment and contrary to Justice Scalia’s admonition in Craw- ford v. Washington, 541 U.S. 36, 54 (2004)”. Jensen, 299 Wis.2d at 321.

Justice Scalia will likely take the lead in deciding Giles, as he did in Crawford and, if he follows his original intent approach and the “the words mean what they say” approach to the Sixth Amendment (to paraphrase the late Justice Hugo Black), the Court may well rule that the forfeiture by wrongdoing rule, which originated to prevent intentional witness tampering, should not be reflexively broadened to trump a defendant’s confrontation rights. What happened to Sir Walter Raleigh when he was convicted and sentenced to death based on the admission of Lord Cobham’s letter needs to be kept in mind. Crawford, 541 U.S.at 44.