Gonzalez & Waddington – Attorneys at Law

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Court Martial Lawyers – Alexandra González-Waddington & Michael Waddington Attorneys at Law

Information on forfeiture by wrongdoing:

An accused may forfeit his right to confront a witness if he engaged in wrongdoing that was intended to, and did, procure the unavailability of the witness.

Crawford v. Washington , 541 U.S. 36, 62 (2004). “[T]he rule of forfeiture by wrongdoing…extinguishes confrontation claims on essentially equitable grounds.”

Giles v. California , 128 S. Ct. 2678 (2008). The doctrine of forfeiture by wrongdoing requires the government to show that the accused intended to make the witness unavailable when he committed the act that rendered the witness unavailable. This is consistent with the Federal and identical Military Rule of Evidence 804(b)(6). It is not enough to simply show that the accused’s conduct caused the unavailability.

United States v. Clark , 35 M.J. 98 (C.M.A. 1992). Accused’s misconduct in concealing the location of the victim and her mother waived any constitutional right the accused had to object to the military judge’s ruling that the victim was “unavailable” as a witness.

Forfeiture of hearsay rights versus confrontation rights. The constitutional doctrine of forfeiture and the codification of that doctrine in the evidentiary hearsay rules are related, but functionally separate, concepts.                                                                                            Military Rule of Evidence 804(b)(6) provides that “[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 not excluded by the hearsay rule if the declarant is unavailable. The overwhelming majority of federal courts apply a preponderance of the evidence standard to determine whether an accused engaged or acquiesced in wrongdoing. 2 Stephen A. Saltzburg, Lee D. Schinasi, and David A. Schlueter,Joint Service Comm. on Military Justice Military Rules of Evidence Manual 804.05[3][f] (2003).                                          Giles v. California , 128 S. Ct. 2678, 2686 (2008). “No case or treatise that we have found…suggested that a defendant who committed wrongdoing forfeited his confrontation rights but not his hearsay rights.” c. United States v. Marchesano , 67 M.J. 535 (Army Ct. Crim. App. 2008). Indicates that an accused could forfeit his hearsay rights under MRE 804(b)(6) through wrongdoing by acquiescence but perhaps not his confrontation rights (confrontation forfeiture requires some intent or design on the behalf of the accused). d. Standard of proof at trial for judge’s determination of forfeiture: Preponderance of evidence.
United States v. Marchesano , 67 M.J. 535, 544 (Army Ct. Crim. App. 2008).

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