PAINE ON PROCEDURE

Forfeiture by Wrongdoing Hearsay Exception
It’s right there in Tennessee Rule of Evidence 804(b)(6), modeled on Federal Rule 804(b)(6):

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a statement offered against a party that has engaged in wrongdoing that was intended to and did procure the unavailability of the declarant as a witness.

Unlike other hearsay exceptions it is not based on considerations of trustworthiness or need. Rather, its basis is fairness. If a party wrongfully prevents a person from testifying, it is only fair to admit all hearsay statements of that person. By wrongdoing the party has forfeited the right to object. Consequently we call it the “forfeiture exception” or, more elaborately, the “forfeiture by wrongdoing exception.”

Let us also review the final sentence of Tennessee (or Federal) Rule of Evidence 804(a):

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from testifying at trial.

The effect of this language prevents a wrongdoer from using the traditional hearsay exceptions requiring unavailability: former testimony, dying declarations, declarations against interest, and a sole declarant’s statements of pedigree.

A wrongdoer is punished in two ways. He or she is both precluded from objecting to an opponent’s offer of hearsay and also from using certain hearsay exceptions. And that’s as it should be.

We now have a Tennessee Supreme Court precedent. Read again State v. Ivy, 188 S.W.3d 132 (Tenn. 2006), especially pages 145-148. Ivy murdered his abused girlfriend, LaKisha Thomas, and is now on Death Row. He killed to prevent Ms. Thomas from contacting police about an assault on her, which would have resulted in his return to prison for violating parole re an earlier murder. The court upheld admissibility of the deceased’s extrajudicial statements.

Ivy enumerated five principles surrounding the forfeiture exception:

1. There is no limitation on the subject matter of statements.
2. The exception is not limited to statements made when a formal charge is pending against the wrongdoer.
3. The court must conduct a jury out hearing.
4. The preponderance of evidence standard applies.
5. The wrongdoer’s intention must have been “at least in part” to procure the absence of the declarant.

Finally, is there a Confrontation Clause problem? No. As Justice Anderson pointed out in Ivy, this question was resolved by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). In that opinion Justice Scalia wrote that “the rule of forfeiture by wrongdoing … extinguishes confrontation claims on essentially equitable grounds.”

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DONALD F. PAINE is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP and an emeritus member of theTennessee Bar Journal Editorial Board.