Post-conviction habeas work is hard. Although the development of DNA testing has shown that hundreds of defendants have been wrongfully convicted, it is still an uphill battle to convince a court to revisit the question of a defendant’s guilt or innocence. The criminal justice system is geared toward finality. Victims and prosecutors become accustomed to believing that because a case has gone through the trial and appellate process, a correct result must have been reached. However, as we know, that assumption can be wrong, even in cases in which no DNA is available to resolve the dispute.

In bringing habeas claims, petitioners often run up against the enemy of time. It may take decades for inmates to attract the attention of a lawyer who can help them bring their post-conviction claims to the attention of the court. During that time, evidence will be lost or destroyed and witnesses will disappear. To overcome these obstacles, petitioners must often reinvestigate a case from scratch and seek to introduce hearsay when the original witnesses are no longer available. These efforts are often made more difficult by law enforcement’s efforts to encourage witnesses not to recant their testimony. Ultimately, petitioners can be left with nothing more than hearsay to convince a judge that an injustice has incurred.


Consider, for example, a situation where a defendant was convicted of murder 30 years ago. There is no physical evidence that can be tested because it was destroyed decades earlier. Yet, witnesses finally come forward to say that the prosecution’s original eyewitnesses were lying and that the police had not disclosed critical exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963).

Suspicious of these new witnesses’ motivations, prosecutors and investigators pay a visit to them to challenge why they would suddenly come forward with such information. Petitioner’s counsel also speaks to the witnesses, but before any hearing is set, those witnesses become incapacitated or disappear.

Even if the petitioner obtains a sworn declaration from the witness, counsel will face an uphill battle in getting this new information before the court. A hearsay declaration is still hearsay. If it is a statement by another person assuming responsibility for the crime, there might be some hope of getting the statement introduced as a statement against interest, if there are enough indicia of trustworthiness. Fed. R. Evid. 804(b)(3). However, if the unavailable witness’ statement just serves to undercut the testimony of the prosecution’s key witness, there may be no standard hearsay exception to apply. In these situations, courts should consider two rarely used, but critical, evidentiary arguments.

First, forfeiture by wrongdoing is one possible argument. Federal Rule of Evidence 804(b)(6) and comparable state evidentiary rules provide that “a statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result” is not excluded under the hearsay rule. The Advisory Committee Notes explain that “[t]he wrongdoing need not consist of a criminal act [and] the rule applies to all parties, including the government.”

The problem with using this exception is the undue emphasis courts have put on demonstrating that the only reason that the declarant is no longer available is because the party against whom the statement will be used had the specific intention to make that witness unavailable for trial.

In Giles v. California, 554 U.S. 353 (2008), the government sought to use a statement by the victim made to police after the defendant had threatened to kill her. The state court applied the doctrine of forfeiture by wrongdoing to admit the statement. However, the U.S. Supreme Court held that without a showing that the witness was killed in order to prevent her from testifying, admission of the hearsay statement would violate the confrontation clause of the Sixth Amendment.

Giles should not stand in the way of petitioners trying to use the forfeiture-by-wrongdoing exception against the government. The government does not have a Sixth Amendment right of confrontation. Crawford v. Washington, 541 U.S. 36, 42 (2004). Moreover, “wrongdoing” should include more than specific efforts to prevent witnesses from testifying. It should be read broadly to include a range of conduct by prosecutors and their investigators that may have put the witness off-limits from the defendant. This may include failure by the prosecution to comply with its Brady responsibility until it was too late and the witness became too frail or otherwise unavailable to appear for a habeas evidentiary hearing. It should also include overly aggressive efforts by prosecutors and their investigators to intimidate witnesses from coming forward during the habeas investigation.

Additionally, and perhaps more importantly, courts have the power under the due process clause to admit hearsay regardless of whether it fits neatly within a hearsay exception. Forty years ago, the Supreme Court decided the landmark case of Chambers v. Mississipp i , 410 U.S. 284 (1973).

In Chambers, the court held that if hearsay testimony bears indicia of trustworthiness, it should be admitted regardless of the hearsay rules. “[T]he hearsay rule may not be applied mechanistically to defeat the ends of justice.” Due process requires that a defendant be given the right to a fair proceeding and due process trumps the hearsay rules.


On rare occasions, lower courts have applied the holding in Chambers to situations where key evidence for the defense has been omitted because of the hearsay rules. See, e.g. , Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012); Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010); Chia v. Cambra, 281 F.3d 1032 (9th Cir. 2002), vacated on other grounds sub nom. , McGrath v. Chia, 538 U.S. 902 (2003). The key to obtaining the admission of such evidence is showing its reliability. Of course, courts in habeas cases will naturally be skeptical about witnesses who delay coming forward. But if the court can be convinced that the prosecutors sat on exculpatory information or intimidated witnesses into remaining silent, and if the missing witness’ statement is corroborated by other evidence before the court, the Supreme Court’s holding in Chambers would support admission of the hearsay information.

Post-conviction investigations should be as much of a search for the truth as are criminal trials. Yet, they can naturally devolve into proceedings where the prosecutors’ sole aim is to preserve their convictions and to bar efforts to reopen a case.

Government investigators can become overly aggressive in challenging new witnesses for the defendant and, in doing so, cross the line of violating a defendant’s right to a fair trial. “The Sixth Amendment guarantees a criminal defendant the right to present witnesses to establish his defense without fear of retaliation against the witness by the government,” and “the Fifth Amendment protects the defendant from improper governmental interference with his defense.” United States v. Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002). See Maples v. Stegall, 427 F.3d 1020 (6th Cir. 2005) (compulsory process right violated by prosecutor’s threats to reinstate ­charges against defendant’s witnesses); United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982) (defendant’s rights violated by prosecutor warning defendant’s girlfriend that her testimony on behalf of the defendant might incriminate her).

The key to getting information before a court for a habeas proceeding is establishing its trustworthiness. This may be done in a variety of ways, including demonstrating how the new information is corroborated by evidence withheld by the prosecution at trial and only newly discovered by petitioner during the ­discovery phase of the habeas proceedings.

In the end, the famous refrain by Justice Alexander Sutherland in Berger v. United States, 295 U.S. 78, 88 (1935), applies as much to habeas proceedings as it does to the initial criminal trial: “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Laurie Levenson is professor of law and David W. Burcham Chair in Ethical Advocacy at Loyola Law School, Los Angeles, where she leads the Capital Habeas Litigation Clinic. She has taught courses on criminal law, white-collar crime, evidence and advanced trial advocacy.