forfeiture by wrongdoing doctrine in District of Columbia

2025In Devonshire v. United States, 691 A.2d 165, 166 (D.C. 1997), this court adopted the forfeiture-by-wrongdoing doctrine whereby “a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying.”6 Roberson v. United States, 961 A.2d 1092, 1095 (D.C. 2008).

2021Forfeiture by Wrongdoing “Under the forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his 3 As described below, these included the offer of a trial continuance to give the defense time to investigate further, an order requiring the government to turn over to the defense the prosecutors’ notes of their interview of the potential third- party perpetrator, a requirement that the parties develop a stipulation to be read to the jury detailing the facts the government knew about that person, and an instruction to t

2025In Devonshire v. United States, 691 A.2d 165, 166 (D.C. 1997), this court adopted the forfeiture-by-wrongdoing doctrine whereby “a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying.”6 Roberson v. United States, 961 A.2d 1092, 1095 (D.C. 2008).

2015I just did a nigger up the street.‖ In the course of ruling on motions to suppress, the trial court found that these statements fit within the forfeiture-by-wrongdoing theory of admissibility because (1) Laquanda Johnson was murdered, in part, because appellants‘ coconspirator Alphonce Little wanted to eliminate Laquanda as a future government witness, (2) her killing was within the scope and in furtherance of the conspiracy, and (3) Little‘s action was reasonably foreseeable to all appellants, including Cooper, despite the fact that he was in jail at the time of her murder after being convict

2025The Supreme Court clarified in Giles v. California that, for the forfeiture-by-wrongdoing doctrine to apply, the defendant must have “engaged in wrongful conduct designed to prevent a witness’s testimony.” 554 U.S. 353, 366 (2008).

2021The forfeiture-by-wrongdoing exception “is grounded in the ability of courts to protect the integrity of their proceedings.” Giles, 554 U.S. at 374 (internal quotation marks omitted).

2025See 80 A.3d at 996 (affirming the trial court’s application of the forfeiture-by-wrongdoing doctrine because, “[g]enerally speaking, it is appropriate and common for judges to consider the substance of proffered hearsay together with independent evidence in determining whether a hearsay exception is available”).

2021In reviewing a trial court’s ruling on the admissibility of hearsay statements under the forfeiture-by-wrongdoing doctrine, “we review the court’s factual finding that [the defendant] procured [the declarant’s] unavailability to prevent h[er] from testifying for clear error and its ultimate decision to admit [the declarant’s] statements for abuse of discretion.” Jenkins v. United States, 80 A.3d 978, 997 (D.C. 2013); see also Roberson, 961 A.2d at 1095, 1097 (explaining that even where “the record is not all it might have been,” we will defer to the trial court’s prerogative to draw reasonable

2015Of course, this theory is not limited to situations where the defendant personally made the witness unavailable. ―[I]f the defendant conspired with another to prevent the witness from testifying, forfeiture ensues whether it was the defendant himself or another co-conspirator who made the witness unavailable so long as the actor‘s misconduct ‗was within the scope of the conspiracy and reasonably foreseeable to the defendant.‘‖ Roberson, 961 A.2d at 1095 (quoting United States v. Carson, 455 F.3d 336, 364 (D.C.

2013Roberson, 961 A.2d at 1095 (quoting United States v. Carson, 455 F.3d 336, 364 (D.C.Cir.2006)); see also Gatlin v. United States, 925 A.2d 594, 599-600 (D.C.2007) (applying coconspirator liability principles in conjunction with the forfeiture-by-wrongdoing doctrine). 41 .

2015In Gatlin, the defendant, who was incarcerated at the time of the murder of a government witness by his coconspirator, challenged the admissibility of the murdered witness’s grand jury testimony under the forfeiture-by-wrongdoing doctrine. 45 We held that “[ijt'Was reasonably foreseeable that intimidation of and threats to witnesses could result in the murder of a witness.” Id. at 600 .

2015In Gatlin, the defendant, who was incarcerated at the time of the murder of a government witness by his coconspirator, challenged the admissibility of the murdered witness‘s grand jury testimony under the forfeiture-by-wrongdoing doctrine.45 We held that ―[i]t was reasonably foreseeable that intimidation of and threats to witnesses could result in the murder of a witness.‖ Id. at 600 .

2025Campos-Alvarez v. United States, 16 A.3d 954, 965 (D.C. 2011). 32 order, might have prevented him from visiting his daughter).

2021As to the purpose prong of the required showing, “[t]he government is not required to show that a defendant’s sole purpose was to silence the declarant.” United States v. Cazares, 788 F.3d 956, 975 (9th Cir. 2015); accord United States v. Jackson, 706 F.3d 264, 269 (4th Cir. 2013) (“[C]onstru[ing] the forfeiture-by-wrongdoing exception to apply even when a defendant has multiple motivations for harming a witness places us in accord with our sister circuits and with several state courts.”); United States v. Martinez, 476 F.3d 961, 966 (D.C.

2021As to the purpose prong of the required showing, “[t]he government is not required to show that a defendant’s sole purpose was to silence the declarant.” United States v. Cazares, 788 F.3d 956, 975 (9th Cir. 2015); accord United States v. Jackson, 706 F.3d 264, 269 (4th Cir. 2013) (“[C]onstru[ing] the forfeiture-by-wrongdoing exception to apply even when a defendant has multiple motivations for harming a witness places us in accord with our sister circuits and with several state courts.”); United States v. Martinez, 476 F.3d 961, 966 (D.C.

2021As to the purpose prong of the required showing, “[t]he government is not required to show that a defendant’s sole purpose was to silence the declarant.” United States v. Cazares, 788 F.3d 956, 975 (9th Cir. 2015); accord United States v. Jackson, 706 F.3d 264, 269 (4th Cir. 2013) (“[C]onstru[ing] the forfeiture-by-wrongdoing exception to apply even when a defendant has multiple motivations for harming a witness places us in accord with our sister circuits and with several state courts.”); United States v. Martinez, 476 F.3d 961, 966 (D.C.

2015Sweet, 756 A.2d at 379 (internal quotation marks omitted). c.

2015We also explicitly stated that the forfeiture-by-wrongdoing rule ―which provides for the waiver of objection by the party who causes the witness absence cannot logically strip the government of its hearsay objections.‖ Sweet, 756 A.2d at 379 (internal quotation marks omitted). c.

2012Cf. United States v. Johnson, 495 F.3d 951, 971 (8th Cir.2007) (concluding that the forfeiture-by-wrongdoing doctrine applied “even though [the defendant] had worked to procure the unavailability of potential witnesses against [her boyfriend] rather than against herself’).

2012Cf. United States v. Johnson, 495 F.3d 951, 971 (8th Cir.2007) (concluding that the forfeiture-by-wrongdoing doctrine applied “even though [the defendant] had worked to procure the unavailability of potential witnesses against [her boyfriend] rather than against herself’).

2007Nevertheless, Mr. Gatlin argues that even though Crawford preserved the forfeiture by wrongdoing doctrine, the evi-dentiary standard for admitting Mr. Jones’ grand jury testimony after Crawford should be “higher” in order to prove “an equitable exception to the Confrontation Clause.” The Supreme Court in Davis, supra, took “no position on the standards necessary to demonstrate [ ] forfeiture [by wrongdoing],” Davis, 126 S.Ct. at 2280 , but indicated that federal courts generally have imposed the preponderance of the evidence standard when “using Federal Rule of Evidence 804(b)(6), which codifi

2007LEXIS 16670 , at *52 (“in the Second Circuit ... the government need only prove by a preponderance of the evidence that a defendant was responsible for a witness’s unavailability”). 9 After contemplating the proper standard of proof following Crawford, one federal trial court observed: “Although there are few post-Crawford cases analyzing the sufficiency of evidence necessary to find that defendant forfeited his Confrontation Clause rights, it is fair to conclude from [the] evidence that the Government has met its burden to show by a preponderance of the evidence that [appellant] threatened [a