Forfeiture by Wrongdoing and the Confrontation Clause
In domestic violence cases there is often suspense regarding whether or not the alleged victim will appear at trial and testify against his or her current or former partner. If the alleged victim does not appear, the prosecution (and court) will frequently assume that the defendant has had something to do with his or her absence. In State v. Dobbs, our Supreme Court took on the question of whether and when a defendant can forfeit his right to confront his accuser when his conduct is responsible for her not showing up in court.
The 6th Amendment of the United States Constitution includes a provision that allows the defendant in a criminal case to “confront” witnesses who are testifying against him or her. Practically, the Confrontation Clause, as it is known, means that a defendant gets a face-to-face look at the witness who is putting forth evidence against him. In domestic violence cases, the prosecution can proceed without a victim testifying if they have sufficient independent evidence, typically hearsay statements of the alleged victim that conform to one of the exceptions to the hearsay rule (“excited utterance,” “present sense impression,” etc.), admitted through a 911 tape or police officer. However, pursuant to Crawford v. Washington, out of court statements by the alleged victim may not be admitted if she does not testify at trial and the out of court statements are deemed “testimonial.” At issue inDobbs was whether the prosecution could admit these otherwise inadmissible “testimonial” statements because the defendant’s own behavior caused the alleged victim’s absence.
The court held in Dobbs that the right to confrontation can be forfeited by wrongdoing, resulting in the admission of hearsay evidence in lieu of live testimony by the alleged victim.
Mr. Dobbs was charged with several counts of harassment and domestic violence assault against his ex-girlfriend (at one point, Mr. Dobbs allegedly did a drive-by shooting of the alleged victim’s property and forced his way into her house with his hand-gun). Mr. Dobbs was recorded on the phone threatening the alleged victim and saying that she would regret testifying against him and saying that she would “get it”. When the day came that she was to testify in court, the alleged victim was nowhere to be found.
The trial court decided that there was evidence beyond a reasonable doubt that the victim’s absence was caused by Mr. Dobbs’ wrong-doing and thus caused him to forfeit his right of confrontation. The appellate court upheld this decision and the Supreme Court affirmed it as well, saying:
“We conclude that a defendant forfeits the Sixth Amendment right to confront a witness when clear, cogent, and convincing evidence shows that the witness has been made unavailable by the wrongdoing of the defendant, and that the defendant engaged in the wrongful conduct with the intention to prevent the witness from testifying.”
A vigorous dissent by Justice Wiggins pointed out that the alleged victim had repeatedly called the police in spite of Mr. Dobbs’ threats to take action against her if she called the police, that the phone call threatening that she would “get it” was made months before trial and was reported to the police by the alleged victim, and that there was not evidence of further threats in the two months that passed between that phone call and trial. Although Mr. Dobbs’ alleged behavior was no doubt heinous, Justice Wiggins argued that there was insufficient evidence connecting his behavior with the alleged victim’s absence to justify the nullification of such and important constitutional right.
When arguing this issue, defense counsel needs to distinguish his or her case from the facts of Dobbs and play close attention to the causal connection between the defendant’s alleged acts and the alleged victim’s absence. Not every bad deed by a defendant forfeits his right to confrontation, though the Dobbs decision reminds us that Courts are reluctant to give the benefit of the doubt to the domestic violence defendant.
