Sunday, June 10, 2007

Defendant Forfeits Confrontation Clause Claim by Soliciting the Murder of the Declarant

United States v. Stewart, Docket No. 05-1989-cr (2d Cir. May 8, 2007) (Kearse, Sotomayor, C.JJ., and Koeltl, D.J.). In this extremely fact-bound opinion, the Court concludes that the district court correctly found, by a preponderance of the evidence, that the defendant procured the unavailability of a hearsay declarant.

The "forfeiture-by-wrongdoing" rule is well established, and has been codified in Rule 804(b)(6) since 1997. The defendant here did not contest the rule itself, nor did he did introduce Crawford into the mix (perhaps his trial was pre-Crawford), but rather challenged only the district court's finding that the defendant was responsible for the murder of one of the witnesses against him. The Court was utterly unsympathetic to this claim, mapping out the apparently compelling, albeit circumstantial, evidence that the defendant ordered a confederate to do the deed.

More interesting was the defendant's argument that the forfeiture rule should not be applied because the effort to eliminate the witness was focused at the time on a different trial, not the instant federal trial. The Court rejected this claim as well, adopting a Fourth Circuit holding that "A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding."


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