Confrontation, Equity, and the Misnamed Exception for "Forfeiture" by Wrongdoing

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A. Crawford and "Forfeiture " by Wrongdoing

Crawford v. Washington1 redefined the Supreme Court's Confrontation Clause jurisprudence and has given unexpected prominence to the rule now known as "forfeiture" by wrongdoing. That doctrine holds that a criminal defendant responsible for a witness's unavailability at trial cannot object to the admission of the absent witness' s hearsay testimony.2 The "forfeiture" doctrine is the only broad exception to Crawford's holding that an unavailable witness's out-of-court "testimonial" statements do not satisfy the Sixth Amendment unless the defendant has the opportunity to cross-examine the declarant.3 Many excited utterances or statements against penal interest or for purposes of medical treatment that were admissible under Ohio v. Roberts4 now are inadmissible because the declarant was not subject to cross-examination. Prosecutions for domestic violence, child abuse, and criminal conspiracies often rely on the hearsay statements of absent and unavailable witnesses. These cases are particularly affected by Crawford because the victims often are unavailable, reluctant to testify, prone to recant prior statements, or, by reason of tender age, may be unlikely to testify.5

The full ramifications of Crawford depend on how the courts ultimately define two key terms in the opinion. The most critical issue is the definition of "testimonial," because only those statements must be subject to cross-examination at some point in order to be admissible.6 Justice Scalia cited three possible and overlapping definitions. The first was "'ex parte in-court testimony or its functional equivalent - that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to beusedprosecutorially.'"7 The second includes '"extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'"8 The third definition is '"statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'"9 The courts are now grappling with how to define "testimonial" and how to apply it in many interactions with the police - from 9 1 1 calls to police inquiries upon arriving at the scene. Significantly, the first post-Crawford cases heard by the Supreme Court involve those issues.10 This issue is beyond the scope of the Article. However defined, Crawford establishes a categorical rule: testimonial statements must be subject to cross-examination at some point to be admissible, even though they might satisfy an exception to the rule against hearsay or otherwise be found reliable.1 1 Prosecutors are seeking a narrow, and defense counsel a broader, definition of "testimonial."

A similar process, with the roles reversed, is occurring with defining the forfeiture concept because it may override Crawford's prohibition on the admission of testimonial statements by unavailable witnesses, however testimonial is defined. The lower federal courts have articulated a narrower version of the rule over the last thirty years. As embodied in case law, and as an evidentiary principle in Federal Rule of Evidence 804(b)(6), the loss of constitutional and evidence-based objections under the waiver doctrine requires proof that the defendant intended to prevent the witness from testifying.12 After Crawford, a broader version of the rule is gaining currency in the courts. That version relies on a forfeiture rationale. The defendant loses any confrontation rights if he is responsible in any way for the absence of the witness at trial, regardless of his intent.13 The Supreme Court has not faced the issue yet, and the discussion in Crawford is scant. Iustice Scalia mentioned "forfeiture" by wrongdoing only to differentiate Crawford' s reasoning from the reliability analysis of Ohio v. …