Confrontation Clause jurisprudence has had a bit of a shakeup since Crawford and its progeny. Since that landmark ruling, a lot of old rules, exceptions, and case precedent have faced reexamination.
You know what has remained relatively constant? Forfeiture-by-wrongdoing.
If you kill or intimidate a witness to prevent him from testifying, you lose the right to confront that witness in court. Otherwise, the answer to any indictment would be to empty a clip into a snitch and scream Sixth Amendment.
Antwan Jackson was convicted of murder and a series of drug-related offenses. His counsel argued, ostensibly with a straight face, that the victim and former witness' statement to police should not be admitted because he wasn't killed to prevent testimony - he was killed because he was bad for business and as retaliation for robbing one of Jackson's associates.
Legally, the argument was that in order for the exception to apply, the motivation for the wrongdoing had to be exclusively to prevent testimony.
Care to guess how well that argument worked?
The District Court stifled their laughter and then admitted the statement. The Fourth Circuit's opinion was more of the same.
The common law forfeiture-wrongdoing exception was reaffirmed as good law in both Crawford and Giles v. California. The exception provides that when the defendant engages in wrongful conduct designed to prevent a witness's testimony, he loses the right to confront and cross-examine the witness. Wrongful conduct includes murder, intimidation, physical violence, and even bribery.
As for the argument that the motive has to be exclusively to prevent testimony, neither Crawford nor Giles addressed exclusivity of the motive. The Fourth Circuit did embrace a broad view of the forfeiture-by-wrongdoing doctrine in Dinkins however, when the court held that the principles of co-conspirator liability articulated in Pinkerton allow the court to impute the co-conspirators' intent to the defendant for both hearsay exception and Confrontation Clause analysis. In that case, because co-conspirators murdered the witness, the court applied the exception in the defendant's case.
Jackson's argument, while not directly addressed by Dinkins, would certainly run counter to the spirit of the court's ruling.
Furthermore, the spirit of the rule and the needs of the justice system also weigh against Jackson's argument. As we said before, if his argument were the rule, defendants would simply merc the man on the stand or otherwise scare him off. The Fourth's common sense decision brings them in line with the First and D.C. Circuits, as well as the California Appellate courts.
- United States v. Jackson (Fourth Circuit Court of Appeals)
- Standing Near a Dumpster in Bad Neighborhood: Terry Stop Worthy? (FindLaw's Fourth Circuit Blog)
- 30 Years for $40 of Interstate Commerce; Fleeing Still a Violent Felony (FindLaw's Fourth Circuit Blog)