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In 2004, the U.S. Supreme Court shook up the criminal justice system with its landmark decision in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the court held that testimonial out-of court statements offered against the accused to establish the truth of the matter asserted may only be admitted where the declarant is unavailable and where the defendant has had a prior opportunity to cross-examine the declarant. Prosecutors immediately began to worry about the impact of this decision on domestic violence prosecutions. Crawford appeared to bar prosecutors from introducing victim statements to investigating officers, a practice that had become routine in some jurisdictions. Finding a way around feared effects of ‘Crawford’ But, as is often the case, prosecutors have found a way around the feared effects of Crawford. Two important exceptions have effectively stopped it from becoming a “get out of jail free” card. First, prosecutors are still allowed to introduce victims’ excited utterances and spontaneous statements. See Davis v. Washington, 126 S. Ct. 2266 (2006). Second, both Crawford and Davis recognized that a defendant may forfeit his right to confrontation by causing a victim to be unavailable to testify at trial. 541 U.S. at 62; 126 S. Ct. at 2280. The “forfeiture by wrongdoing” doctrine existed before Crawford, but took on new significance following that landmark decision. Federal Rule of Evidence 804(b)(6) provides that notwithstanding the general rule barring the admission of hearsay evidence, “a statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness” is admissible. In Crawford, Justice Antonin Scalia recognized that forfeiture by wrongdoing “extinguishes a defendant’s Confrontation Clause rights on essentially equitable grounds.” 541 U.S. at 62. A defendant cannot claim the benefits of the Sixth Amendment if he has intimidated or physically prevented a prosecution witness from testifying. While the Supreme Court declined in Davis to specify exact standards for determining when there has been forfeiture by wrongdoing, Scalia noted that federal and state courts generally apply a preponderance-of-the-evidence standard to determine whether the defendant’s actions have caused a witness to be unavailable. 126 S. Ct. at 2280. See also U.S. v. Basciano, 430 F. Supp. 2d 87, 90 (E.D.N.Y. 2006). In fact, both state and federal judges have been very liberal with their interpretation of the forfeiture-by-wrongdoing doctrine. See U.S. v. Ervin, 209 Fed. Appx. 519 (6th Cir. 2006); U.S. v. Montague, 421 F.3d 1099 (10th Cir. 2005); U.S. v. Gray, 405 F.3d 227 (4th Cir. 2005); People v. Giles, 152 P.3d 433 (Calif. 2007). So long as the prosecution demonstrates three basic facts, the courts are generally willing to use the forfeiture-by-wrongdoing doctrine. To demonstrate forfeiture by wrongdoing, the prosecution must show: (1) wrongdoing by the defendant or on the defendant’s behalf, (2) intent by the defendant to make the witness unavailable, and (3) actual unavailability of the witness, which may include the witness’s invocation of a privilege not to testify. Federal courts will find forfeiture by wrongdoing if the prosecution meets these three requirements. For example, in U.S. v. Mayhew, 380 F. Supp. 2d 961 (S.D. Ohio 2005), John Mayhew shot and killed his ex-girlfriend and her fianc�, and then kidnapped and eventually killed the ex-girlfriend’s daughter. The prosecution sought to introduce the daughter’s dying declarations, but the defendant objected on confrontation clause grounds. The trial court overruled his objection. By killing the daughter, Mayhew had forfeited his confrontation rights. The court was not concerned about making this finding even though the defendant was standing trial for the very act which made the witness unavailable. See also U.S. v. Johnson, 354 F. Supp. 2d 939, 964 (N.D. Iowa 2006) (forfeiture-by-wrongdoing doctrine invoked using same evidence for which the accused faced murder charges). Federal courts are also willing to use the forfeiture-by-wrongdoing doctrine when a defendant’s prior wrongful acts � not the ones for which he is on trial � caused the witness’s unavailability. For example, in U.S. v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005), the defendant was charged with the first-degree murder of his wife. During the murder trial, prosecutors sought to admit statements made by his wife five months prior to the murder when the defendant assaulted her. In Garcia-Meza, the court rejected the defendant’s argument that the prosecution must show that the defendant intended to prevent a witness from testifying in that particular case to invoke the forfeiture-by-wrongdoing doctrine. Rather, the court, relying on the same equitable grounds the Supreme Court referred to in Crawford, allowed the defendant’s deceased wife’s statements regarding the prior assault. While some courts, like that in Garcia-Meza, do not require the prosecutor to prove intent to prevent a witness from testifying in that specific case, all courts require that the witness actually be unavailable to testify before such hearsay evidence is allowed. Thus, the district court in U.S. v. Basciano, 430 F. Supp. 2d 87 (E.D.N.Y. 2006) held that the forfeiture-by-wrongdoing doctrine was not satisfied simply because the defendant had threatened and harassed a witness. The government must go the next step and demonstrate that the witness, as a result of such threats, is actually unavailable to testify. State courts are less uniform in how they apply the forfeiture-by-wrongdoing doctrine. Many state courts do not require that the prosecution prove that the defendant committed a wrongful act with the specific intent of preventing the declarant from being a witness. See, e.g., People v. Bauder, 712 N.W.2d 506 (Mich. Ct. App. 2006) (forfeiture-by-wrongdoing doctrine applied even though defendant claimed that when he murdered his wife he did not have the intent to prevent her from being available as a witness). See also Gonzalez v. State, 195 S.W.3d 114, 119 n.25 (Texas Crim. App. 2006). Other state courts strictly require proof of the defendant’s intent to silence the witness. For example, both the highest courts of Illinois and New Mexico have recently required that a defendant’s misconduct be committed with the intent to keep the declarant off the witness stand. In People v. Stechly, 2007 WL 1149969 (Ill. 2007), Robert Stechly was charged with predatory criminal sexual assault on a 5-year-old child. The child told her mother, an emergency room child abuse specialist, and a police officer that Stechly had abused her and warned her that if she told anyone about the abuse, he would hurt her. As trial approached, the child became noncommunicative and refused to discuss the abuse. Experts testified that it would severely traumatize the child to force her to testify. The trial court declared her unavailable to testify and admitted the hearsay statements. It held that there was no requirement that the prosecution show that the defendant had the intent to prevent the witness from testifying, if that was the effect of his actions. A divided Illinois Supreme Court reversed the conviction. It held that the forfeiture-by-wrongdoing doctrine should not be applied unless there was evidence that the defendant had the intent to cause the witness to be unavailable for trial. It therefore remanded the case to allow the trial court to make such a determination. Although the prosecution would be required to show the defendant’s intent to prevent the child’s testimony, the court acknowledged two procedural rules that would help to show this: (1) the standard of proof at the hearing would be by a preponderance of the evidence, and (2) the girl’s hearsay statement itself could be used in making this showing. See Davis, 126 S. Ct. at 2280. Thus, even when there is an intent requirement, the courts allow a great deal of latitude in how the prosecution may prove the defendant had such intent. Similarly, in State v. Romero, 156 P.3d 694 (N.M. 2007), the New Mexico Supreme Court held that it too would require a showing of the defendant’s intent to prevent a witness from testifying before finding a forfeiture of the right of confrontation. Prosecutors cannot assume that just because a defendant has harmed or threatened a victim that a victim’s statements will automatically be admissible. Patterns of abuse used to implicitly prove intent While these state courts, like the federal courts, require a showing of intent to prevent the witness from testifying, it is ordinarily sufficient if the defendant intended to prevent the witness from testifying in any trial, not just the one in which the witness’s hearsay statement is being offered. For example, in U.S. v. Stewart, 485 F.3d 666 (2d Cir. 2007), the court applied the forfeiture-by-wrongdoing doctrine even though the defendant had intended to prevent the witness from testifying against the defendant in a different case. See also People v. Vasquez, 155 P.3d 565 (Colo. Ct. App. 2006); Boyd v. Indiana, 866 N.E.2d 855 (Ind. Ct. App. 2007). Additionally, some courts allow a pattern of abuse to implicitly prove the defendant’s intent. See, e.g., U.S. v. Montague, 421 F.3d 1099 (10th Cir. 2005) (repeated abuse and violation of no-contact order sufficient to prove defendant’s wrongdoing caused wife’s invocation of marital privilege). Intent to prevent a witness from testifying can be inferred from all of the circumstances of a case; it need not be express. Crawford has had a dramatic impact on the prosecution of criminal cases, but it has not spelled doom for domestic violence cases. Victim hearsay statements are still admissible. The focus has shifted, however, to the circumstances preventing the victim-witness from testifying. Laurie L. Levenson is a professor of law, William M. Rains Fellow, and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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