If Forfeiture by Wrongdoing Applies, Testimony of Absent Witness Can Be Used at Trial.

 Carlson v. Attorney General of the State of California

 In Carlson v. Attorney General of the State of California, (9th Cir, 2015), Case No. 13-16535,

decided on June 26, 2015, the Ninth Circuit found these facts. On a Sunday afternoon, Joshua Barragan ("Joshua") called the Moraga Police Department to report that his stepfather, Leif Carlson, Sr. ("Carlson") had hit seven-year-old Leif Carlson, Jr. ("Leif Jr.") in the face. When Officer Ronald Ward arrived on the scene, he observed redness and bruising on Leif Jr.'s left cheek. The state charged Carlson—Leif Jr.'s father—with willful infliction of harm or injury to a child, Cal. Penal Code, § 273a(b).

When the case went to trial. Carlson's wife, Lena Carlson ("Lena"), and Leif Jr. were subpoenaed to testify but never appeared in court. Invoking the Supreme Court's forfeiture-by-wrongdoing doctrine, the trial court determined that Carlson was complicit in their absence and that he had surrendered his Sixth Amendment right to confront them. The Ninth Circuit observed that this circumstantial evidence could have been used by the trial court to support its finding:

(1) Lena was distraught and may have had mental health issues. That evidence could support an inference that she would require emotional care and practical help.

(2) Carlson was away from his own home on the nights during the trial when his wife and son were not there. That evidence suggests that he knew where they were and was with them while they were absent.

(3) According to Christian, Carlson had instructed him and the other children not to call their mother. Also, Christian had been the family member who encouraged Lena's attendance on the first day of trial. That evidence could support both (i) an inference that Carlson wanted to keep his wife and son's whereabouts secret so they would not be found and compelled to appear, and (ii) an inference that he wished to keep his wife away from any influence that might persuade her to reappear, with their son or without him.

Forfeiture by Wrongdoing

The Confrontation Clause of the Sixth Amendment ordinarily bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53–54 (2004). Statements made in response to the questioning of a law enforcement officer are testimonial if the circumstances establish that "the primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006); see also Michigan v. Bryant, 131 S.Ct. 1143, 1154 (2011).

But the forfeiture-by-wrongdoing doctrine is an exception to the Confrontation Clause's protections. This doctrine permits the introduction of a testimonial statement by an unavailable witness if the preponderance of the evidence shows that the "witness is absent by [the defendant's] own wrongful procurement." Reynolds v. United States, 98 U.S. 145, 158 (1878); United States v. Johnson, 767 F.3d 815, 822–23 (9th Cir.2014) (holding that forfeiture by wrongdoing must be proven by a preponderance of the evidence).

The leading post-Crawford case on forfeiture by wrongdoing, Giles v. California, 554 U.S. 353 (2008) ("Giles"), explains that the rationale behind the rule is avoidance of "an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them." 554 U.S. at 365. Relying on that rationale, Giles rejected a theory of forfeiture by wrongdoing that would have permitted unconfronted testimonial statements to be admitted against a defendant any time the defendant had by his own culpable acts rendered the witness unavailable. Id . at 364–65, 368. Explaining that the "bad acts" theory could not be reconciled with "the common law's uniform exclusion of unconfronted inculpatory testimony by murder victims," id. at 368, Giles held that forfeiture by wrongdoing applies only where the defendant engaged in "conduct designed to prevent a witness from testifying," id. at 365.

Accordingly, the trial judge allowed Officer Ward to testify to statements made by Leif Jr. and Lena in the hours after the incident. Carlson was convicted and sentenced to ten days' jail time and four years' probation. The Appellate Division affirmed the judgment, the Court of Appeal denied a petition for writ of mandate, and the California Supreme Court denied habeas relief. Carlson then timely filed a federal habeas petition. See 28 U.S.C. § 2254. The district court denied the petition, concluding that the trial court's determination that Carlson forfeited his Confrontation Clause rights was not an unreasonable application of the Supreme Court's forfeiture-by-wrongdoing doctrine as articulated in Giles v. California, 554 U.S. 353 (2008).

The Ninth Circuit affirmed this conviction, holding that simple acquiescence in another's wrongful conduct designed to keep a witness from testifying does not amount to forfeiture by wrongdoing, but the state court's ruling on the forfeiture question, while murky, was consistent with a finding that Carlson engaged in more culpable conduct.

- See more at: http://caselaw.findlaw.com/us-9th-circuit/1705908.html#sthash.kYlyNNos.dpuf

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

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