Forfeiture by Wrongdoing
• Evidence Rule 804(b)(5) [is] the “forfeiture by wrongdoing” hearsay exception.
• “[Indiana Evidence Rule 804(b)(5) ] was not in the original Evidence Rules, but was adopted by amendment effective [July 1,] 2009.”
• Because there is no reported Indiana case addressing [Indiana Evidence Rule 804(b)(5)], the application of the rule to the circumstances in this case is an issue of first impression.
• Evidence Rule 804(b)(5) is patterned on the federal rule, Federal Evidence Rule 804(b)(6), and we look to federal case law for guidance in interpreting and applying this hearsay exception.
Exception to the rule against hearsay: Text
• The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.
(5) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability.
A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.
Exception to the rule against hearsay: Interpretation of the text
• “[T]he government has the burden of proving by a preponderance of the evidence that (1) the defendant (or party against whom the out-of-court statement is offered) was involved in, or responsible for, procuring the unavailability of the declarant ‘through knowledge, complicity, planning or in any other way;’ and (2) the defendant (or party against whom the out-of-court statement is offered) acted with the intent of procuring the declarant's unavailability as an actual or potential witness.”
White v. State, 978 N.E.2d 475, 480 (Ind. Ct. App. 2012), trans. denied(quoting United States v. Dhinsa, 243 F.3d 635, 653-54 (2d Cir. 2001), cert. denied, 534 U.S. 897 (2001)(quoting United States v. Miller, 116 F.3d 641, 668 (2d Cir. 1997), cert. denied, 524 U.S. 905 (1998)))(emphasis omitted)
Exception to the rule against hearsay: Unavailability
• For information about the meaning of “unavailable” within the context of Indiana Evidence Rule 804, please review Unavailability.
Exception to the rule against hearsay: Proving the defendant’s purpose
• Rule 804(b)(5) . . . requires that the party procured the unavailability of the declarant for the purpose of preventing the declarant from attending or testifying.
• “The government need not, however, show that the defendant's sole motivation was to procure the declarant's absence; rather, it need only show that the defendant ‘was motivated in part by a desire to silence the witness.’”
White v. State, 978 N.E.2d 475, 480 (Ind. Ct. App. 2012), trans. denied(quoting United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001), cert. denied, 534 U.S. 897 (2001)(quoting United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996), cert. denied, 519 U.S. 1118 (1997)))(emphasis omitted)
E.g., White v. State, 978 N.E.2d 475, 482 (Ind. Ct. App. 2012), trans. denied(“Under Evidence Rule 804(b)(5), because [the defendant] was at least partially motivated to kill [the victim] to prevent her from testifying at the provisional custody hearing, the trial court properly allowed the challenged hearsay evidence.”)
Burden of proof
• [T]he parties agree that a preponderance of the evidence standard applies.
Relationship to the right of confrontation: In general
• We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted. The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying. . . . A second common-law doctrine, which we will refer to as forfeiture by wrongdoing, permitted the introduction of statements of a witness who was “detained” or “kept away” by the “means or procurement” of the defendant.
• For information about dying declarations, please review Dying Declarations.
• The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying.
• The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.
• In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying . . . the testimony was excluded unless it was confronted or fell within the dying-declarations exception.
Relationship to the right of confrontation: Rationale
• [C]ommon-law authorities justified the wrongful-procurement rule by invoking the maxim that a defendant should not be permitted to benefit from his own wrong. But as the evidence amply shows, the “wrong” . . . to which these statements referred was conduct designed to prevent a witness from testifying. The absence of a forfeiture rule covering this sort of conduct would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them.