New England Law Review: Volume 49, Number 2 - Winter 2015

A Reliable and Clear-Cut Determination: Is a Separate Hearing Required to Decide When Confrontation Forfeiture by Wrongdoing Applies?

TIM DONALDSON*

[49 NEW ENG. L. REV. 167 (2015)]

Over a century ago, the U.S. Supreme Court decided in Reynolds v. United States that a defendant may forfeit the right to confront an adverse witness if the defendant’s wrongful conduct kept the witness from appearing at trial to testify.¹ It more recently clarified that a defendant’s wrongful conduct must have been committed for the purpose of preventing testimony for forfeiture to apply.² The Supreme Court has not, however, specified the procedure by which forfeiture determinations should be made³ and Circuit Courts of Appeals are split. The Second and Tenth Circuits have held that a trial court must hold an evidentiary hearing outside the presence of a jury to make forfeiture determinations.⁴ However, the First, Fourth, Eighth, and D.C. Circuits have ruled that a separate hearing is not required if a judge can make the requisite findings regarding forfeiture from the evidence presented during the course of trial.⁵

The issue is ripe for resolution. The Supreme Court sank a raft of confrontation exceptions a decade ago in Crawford v. Washington.⁶ Prior to Crawford, an out-of-court statement made by a missing witness could be admitted in a criminal trial if the witness was unavailable, the statement fell within a firmly rooted hearsay exception, or there were particular indicia of its reliability.⁷ Crawford overruled longstanding precedent upon which many exceptions were based—it held with very limited deviation that testimonial statements made by an absent witness may only be used at trial if it is sufficiently established that the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.⁸ Thereafter, only two exceptions remained afloat. The Crawford majority indicated that it might still accept a dying declaration exception.⁹ It also accepted a rule of forfeiture by wrongdoing which extinguishe[d] confrontation claims on essentially equitable grounds. ¹⁰ That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.¹¹ Recourse to the forfeiture-by-wrongdoing doctrine was less necessary prior to Crawford—it was easier to admit out-of-court statements under the confrontation test overruled by Crawford than it was to show that the absence of a witness was wrongfully procured by a defendant.¹² As numerous confrontation exceptions perished under the waves of Crawford, interest intensified on those that survived.

In the decade since Crawford was decided, most jurisdictions have adopted or reaffirmed a confrontation forfeiture principle, focusing primarily upon the substantive standards for forfeiture.¹³ For example, Giles v. California resolved a split over whether intent-to-silence a witness is a prerequisite to forfeiture.¹⁴ An equally important question, however, involves the method by which forfeiture determinations are made. For instance, should a judge hear forfeiture evidence outside the presence of a jury since resolution of the issue may involve consideration of additional wrongdoing beyond the crime for which a defendant is charged, or is the question so intertwined with the remainder of a case that it is a waste of judicial resources to require a separate hearing to decide? The disagreement among the Circuit Courts of Appeals upon the issue may eventually need to be resolved by the Supreme Court, and the renewed interest in and use of the forfeiture-by-wrongdoing doctrine will likely increase pressure to answer the question sooner rather than later.

This Article examines both sides of the split. It concludes that forfeiture determinations under the Giles standard should be made in an ancillary hearing outside the presence of a jury, except in those instances where other admissible evidence has already been introduced at trial which sufficiently establishes forfeiture.

I. Jurisdictions Which Require a Separate Evidentiary Hearing

One of the leading modern cases on confrontation forfeiture by wrongdoing is United States v. Mastrangelo.¹⁵ In Mastrangelo, the Second Circuit Court of Appeals held that a defendant’s involvement in the murder of a witness was misconduct that prevented the defendant from asserting his confrontation right against admission of testimony previously given by the deceased witness—[a]ny other result would mock the very system of justice the confrontation clause was designed to protect.¹⁶ The Mastrangelo court concluded that a preliminary hearing must be conducted in accordance with evidentiary rules to determine whether a defendant’s misconduct waived confrontation:

Since Mastrangelo’s possible waiver of his sixth amendment rights is a preliminary question going to the admissibility of evidence, the hearing will be governed by Fed. R. Evid. 104(a), which states that the exclusionary rules, excepting privileges, do not apply to such proceedings. Thus, hearsay evidence, including [the witness’s] grand jury testimony, will be admissible, as will all other relevant evidence.¹⁷

The Second Circuit subsequently clarified that in addition to the hearing, a trial court should undertake a balancing of probative value against prejudicial effect in accordance with Fed. R. Evid. 403 in order to avoid the admission of facially unreliable hearsay.¹⁸ This additional requirement was adopted to alleviate due process concerns about a conviction being potentially based upon unreliable evidence when the forfeiture doctrine overrides protections afforded by the Confrontation Clause and hearsay rule.¹⁹ The court confirmed its requirements in United States v. Dhinsa, and further explained that a trial court’s findings after utilizing such procedure will not be disturbed on appeal unless they are clearly erroneous.²⁰

State courts that have addressed the issue have relied upon the Second Circuit’s analysis and rulings regarding the separate hearing requirement.²¹ The Massachusetts Supreme Judicial Court held in Commonwealth v. Edwards that both parties should be allowed to present evidence at such hearings, including live testimony, but noted that the hearings were not intended to become a mini-trial.²² In Vasquez v. Colorado, the Supreme Court of Colorado succinctly explained the basic framework utilized with variations by jurisdictions that have adopted a hearing requirement:

We also join the jurisdictions that require an evidentiary hearing before a determination of forfeiture can be made. Outside the presence of the jury, the prosecution shall have the opportunity to prove by a preponderance of the evidence the elements of the doctrine of forfeiture by wrongdoing. Because the defendant’s possible forfeiture of his confrontation rights is a preliminary question going to the admissibility of evidence, the hearing will be governed by CRE 104(a), which states that the determination shall not be bound by the rules of evidence except those with respect to privileges. Thus hearsay evidence, including the unavailable witness’s out-of-court statements, will be admissible. The trial court’s findings at the hearing will not be disturbed unless they are clearly erroneous.²³

The New Jersey Supreme Court followed suit post-Giles by adopting a hearing requirement, further ruling that [t]he hearing must be conducted in the presence of counsel and defendant, and the defendant can only be excluded from the hearing for extraordinary reasons that must be articulated on the record.²⁴

Prior to Mastrangelo, the Tenth Circuit established another line of authority for a hearing requirement in United States v. Balano.²⁵ The court in Balano held that a defendant’s threats against the life of a witness waived any confrontation objection to admission of out-of-court statements made by the witness.²⁶ Like the Mastrangelo court, it opined: [t]o permit the defendant to profit from such conduct would be contrary to public policy, common sense and the underlying purpose of the confrontation clause.²⁷ It also concluded that a hearing outside a jury’s presence was required as a prerequisite to admission.²⁸ The Tenth Circuit, however, based its conclusion more closely upon the right of confrontation itself, writing:

[W]e do not wish to emasculate the Confrontation Clause merely to facilitate government prosecutions. Thus, a prima facie showing of coercion is not enough. We hold, therefore, that before permitting the admission of grand jury testimony of witnesses who will not appear at trial because of the defendant’s alleged coercion, the judge must hold an evidentiary hearing in the absence of the jury and find by a preponderance of the evidence that the defendant’s coercion made the witness unavailable.²⁹

The rationales expressed by the Tenth and Second Circuits therefore, are slightly different, but they may not be that far apart. Although the Mastrangelo court appeared to base its ruling on evidentiary rule requirements, a federal district court has opined that it is also grounded upon constitutional concerns. In La Torres v. Walker, the court explained that [b]ecause the right to confrontation is critical, the Second Circuit requires that an evidentiary hearing be held to determine if the defendant was in fact responsible for the unavailability of the witness and consequently waived his Sixth Amendment right.³⁰

II. Jurisdictions in Which No Separate Hearing is Required

Trial judges traditionally have discretion over the procedures they use to determine questions regarding the admissibility of evidence.³¹ The D.C. Circuit Court of Appeals therefore concluded in United States v. White that a trial court could validly borrow the method utilized in co-conspirator cases to make forfeiture determinations.³² It explained that the method routinely used in those types of cases is to conditionally admit hearsay statements subject-to-connection with later presented proof of a conspiracy.³³ If the connection is not proven, the court must either strike the testimony and instruct the jury to disregard it, or, if that is not enough protection, must grant a mistrial.³⁴ The D.C. Circuit acknowledged that it may be better practice to first secure the predicates for admissibility before making an evidentiary ruling, but that trial exigencies often make that approach impracticable. It therefore concluded that it would not compare the relative merits of various competing procedures as long as trial courts adopted adequate techniques to protect defendants against prejudice that might result from premature admission when the subject-to-connection method is used.³⁵

The D.C. Circuit expressly rejected the defendants’ argument in White that the trial court should have first conducted a preliminary hearing outside the presence of the jury to determine admissibility before allowing an out-of-court statement to be heard.³⁶ The appellate court found no merit to the defense’s argument that judicial ego might psychologically dissuade a judge from striking conditionally admitted evidence when a proffered basis for admission is not later made.³⁷ It recognized that the defendants’ suggested sequence would have been wasteful of judicial time, as the hearing and trial testimony on the murder would have been largely duplicative. The trial court was fully entitled to bear this waste in mind.³⁸ The appellate court did note, however, that a desirable solution might be a full trial of other issues prior to admission of statements made by a missing witness because such a procedure would concomitantly provide a trial judge with evidence relevant to the forfeiture issue.³⁹

In United States v. Emery, the defendant was charged with killing a federal informant who had cooperated with federal authorities investigating the defendant’s illegal drug activities.⁴⁰ The Court admitted various statements made by the murdered informant at trial contingent upon the prosecution presenting additional evidence sufficient to prove that the defendant was responsible for the murder, and thus, the unavailability of the witness. In doing so, the trial court followed cases dealing with the hearsay statements of co-conspirators: In those cases, evidence is admitted conditionally subject to proof by a preponderance of the evidence that the defendant and the declarant were co-conspirators.⁴¹ The defendant objected to the procedure used by the trial court and argued that it should have instead conducted a preliminary hearing outside the presence of the jury to determine if the defendant had procured the absence of the witness.

The Eighth Circuit Court of Appeals rejected the defendant’s contention and followed the model of the co-conspirator cases.⁴² It found that the procedure for contingent admission used in cases involving co-conspirator statements was appropriate in the context of the case against Emery. The appellate court wrote that it was motivated by the functional similarity of the questions involved and by the fact that the repetition necessarily inherent with a preliminary hearing would amount to a significant waste of judicial resources.⁴³ It therefore held that the trial court did not commit error when denying a preliminary hearing.⁴⁴

The Fourth Circuit Court of Appeals has not analyzed the issue as thoroughly as the Eighth or D.C. Circuits, but it has reached the same result.⁴⁵ A black widow was convicted in United States v. Gray of mail and wire fraud for successively murdering two husbands and a boyfriend to collect on their insurance.⁴⁶ The evidence at trial showed that the second husband was murdered, in part, to keep him from testifying in another case where she had been charged in connection with an earlier attempt to kill him.⁴⁷ The Fourth Circuit held that the proof sufficiently established forfeiture.⁴⁸ Additionally, it recognized that a trial court need not hold an independent evidentiary hearing if the requisite findings may be made based upon evidence presented in the course of trial.⁴⁹ The court did not elaborate further on the reasoning behind its ruling. It did, however, cite an earlier case which, in turn, relied upon the Eighth Circuit’s opinion in Emery.⁵⁰

The circumstances encountered by the Third Circuit Court of Appeals in United States v. Baskerville were very similar to those present in Emery.⁵¹ The defendant in Baskerville was charged and subsequently convicted of conspiracy to murder an informant who had been scheduled to testify against the defendant in an earlier drug conspiracy trial. Prior to admitting statements made by the murdered informant, the trial court requested that the prosecution make a proffer of the evidence that it expected to introduce during trial to show that the defendant had murdered the witness to keep him from testifying at the drug trial.⁵² The trial court thereafter admitted the statements made by the dead informant subject to connection being made at trial.⁵³ Citing Emery and recognizing the similarities between the procedure used by the trial court and the practices endorsed for use in co-conspirator cases, the Third Circuit held that the procedure used by the trial court was an acceptable way to avoid wasting judicial resources by conducting in effect a trial before the trial.⁵⁴ The appellate court did, however, recognize that if the Government’s proffer had given the District Court reason to doubt its ability to actually deliver this proof at trial, an evidentiary hearing may have been in order.⁵⁵ Baskerville is an unreported case and therefore not binding, but it has been found to be instructive and relied upon within the Third Circuit.⁵⁶

A proffer was also utilized by the trial court in Crutchfield v. United States to make forfeiture determinations.⁵⁷ In that case, the prosecution detailed evidence that it expected to introduce at trial to establish that the defendant had killed a witness to prevent her from testifying against him about a triple murder. The trial court determined on the basis of the proffer that an evidentiary hearing was not required. It further held that the defendant had waived his right to confront the murdered witness and admitted out-of-court statements that she had made.⁵⁸ The trial court stated that it would monitor the evidence as it was presented to confirm that it satisfied confrontation waiver requirements. Further, the judge noted that the prosecution risked a mistrial by using the proffer method if the evidence actually presented at trial was inadequate to support admission of the statements made by the absent witness.⁵⁹

The Court of Appeals for the District of Columbia upheld the procedure used by the trial court in Crutchfield, noting that the proffer method had been approved in a number of comparable situations. It pointed specifically to the approved use of the proffer method to determine the admissibility of evidence regarding the commission of other crimes.⁶⁰ Relying on Emery, the appellate court explained that it would be a waste of judicial resources to require repetition of evidence at both a preliminary hearing and a trial.⁶¹

Almost all jurisdictions allowing forfeiture determinations to be made without a separate hearing conducted outside the presence of a jury have relied upon the Eighth Circuit’s opinion in Emery or a similar analysis that a particular procedure is permissible since it is analogous to procedures approved for determining the admissibility of co-conspirator statements.⁶² Cases relying on Emery and by analogy to procedures used with respect to co-conspirator statements may therefore require additional analysis because the law in that area is more complex than an unqualified universal acceptance of a unitary method.⁶³ In addition, the rationale justifying admission of co-conspirator statements has shifted post-Crawford.⁶⁴

III. Co-conspirator Statements: Discretion, Conditional Admission, Proffers, and James Hearings

The Circuit Courts of Appeals have taken a variety of approaches regarding the methods by which the admissibility of co-conspirator statements may be determined. The Ninth Circuit Court of Appeals has held that the order of proof is within the sound discretion of the trial court.⁶⁵ It has therefore decided against requiring mandatory pretrial hearings for making admissibility determinations for co-conspirator statements.⁶⁶ It has also declined to express a ‘preference’ about what procedure a trial court should use.⁶⁷

The Sixth Circuit has similarly stated that it does not believe that it is appropriate to set forth hard and fast procedures.⁶⁸ It has instead explained that one acceptable method is the mini-hearing method in which the court, without a jury, hears proof and makes a preliminary finding regarding admissibility.⁶⁹ Another is for a trial judge to require the prosecution to present its non-hearsay evidence of a conspiracy before making an evidentiary ruling regarding the admissibility of an out-of-court statement.⁷⁰ Lastly, a trial court may conditionally admit a co-conspirator statement subject to connection, which means that its admissibility must later be demonstrated by introduction of sufficient proof that a conspiracy existed.⁷¹

The First, Second, Third, Fourth, and Seventh Circuits have expressed viewpoints similar to the Sixth and Ninth Circuits. The First Circuit has ruled that a trial judge may require the government to present all of its non-hearsay evidence before deciding whether the co-conspirator exception applies.⁷² Trial courts may also use the preliminary hearing method in their discretion, but the usual course of action in the First Circuit is to conditionally admit hearsay subject to a final determination as to whether it qualifies as a co-conspirator statement.⁷³ This method, however, requires a trial court to take precautions to minimize spillover prejudice if the court ultimately strikes some or all of the provisionally admitted evidence.⁷⁴

Second Circuit Judge Friendly recognized in United States v. Geaney that the practicalities of a conspiracy trial may sometimes require use of the subject-to-connection method. However, a trial judge may be left in a position of having to declare a mistrial if provisionally admitted evidence is subsequently disallowed and the amount of inadmissible proof is so large that an instruction to the jury to disregard