forfeiture by wrongdoing doctrine in Virginia

2024The forfeiture-by-wrongdoing exception “permits the introduction of unconfronted testimonial statements ‘only when the defendant engaged in conduct designed to prevent the witness from testifying.’” Id. at 666 (quoting Giles, 554 U.S. at 360 ).

2024“As a result, . . . pursuant to the doctrine of forfeiture by wrongdoing, ‘unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.’” Id. at 666-67 (quoting Giles, 554 U.S. at 361 ). “[F]orfeiture by wrongdoing only applies upon a showing by a preponderance of the evidence that a witness, whose out-of-court statements are at issue, is unavailable to testify at the defendant’s criminal trial.” Id. at 667.

2009The Confrontation Clause and the Admissibility of the Affidavit In denying Crawford’s motion to suppress the statements contained in the affidavit, the trial court found that Crawford “ha[d] forfeited his Sixth Amendment right to confront [Sarah’s] testimony because he intentionally procured her unavailability to testify.” In reaching this conclusion, the trial court stated that, “[t]o apply the forfeiture by wrongdoing doctrine, this [c]ourt must find by a preponderance of the evidence ... that [Crawford] is responsible for [Sarah’s] unavailability as a witness and therefore forfeited his rig

2009The Confrontation Clause and the Admissibility of the Affidavit In denying Crawford’s motion to suppress the statements contained in the affidavit, the trial court found that Crawford “ha[d] forfeited his Sixth Amendment right to confront [Sarah’s] testimony because he intentionally procured her unavailability to testify.” In reaching this conclusion, the trial court stated that, “[t]o apply the forfeiture by wrongdoing doctrine, this [c]ourt must find by a preponderance of the evidence ... that [Crawford] is responsible for [Sarah’s] unavailability as a witness and therefore forfeited his rig

2018However, in 1878, the Supreme Court acknowledged the application of the common law doctrine of forfeiture by wrongdoing to the Confrontation Clause in Reynolds v. United States, 98 U.S. 145, 158 (1878).

2013Forfeiture by Wrongdoing In Reynolds v. United States, 98 U.S. 145, 158 (1878), the Court summarized the forfeiture by wrongdoing exception as follows: The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away.

2009I concur with the en banc majority's statement that, under the doctrine of forfeiture by wrongdoing, evidence which is testimonial may "` not be admitted without a showing that the defendant intended to prevent a witness from testifying.'" See supra at 472-73, 686 S.E.2d at 564 (quoting Giles v. California, ___ U.S. ___, ___, 128 S.Ct. 2678, 2684 , 171 L.Ed.2d 488, 497 (2008)).

2009I also concur in the majority opinion to the extent it holds that the trial court, "[b]y not considering [appellant's] intent, ... incorrectly applied the forfeiture by wrongdoing doctrine, as it was defined in Giles." See supra at 474, 686 S.E.2d at 565 .

2009“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Davis v. Washington, 547 U.S. 813, 821 , 126 S.Ct. 2266, 2273 , 165 L.Ed.2d 224 (2006) (quoting U.S. Const, amend.

2009“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Davis v. Washington, 547 U.S. 813, 821 , 126 S.Ct. 2266, 2273 , 165 L.Ed.2d 224 (2006) (quoting U.S. Const, amend.

2024See United States v. Jackson, 706 F.3d 264, 268-69 (4th Cir. 2013) (holding that forfeiture-by-wrongdoing exception should be construed broadly because otherwise defendants would have an “intolerable incentive” to bribe, intimidate, or harm witnesses).

2009See Logan v. Commonwealth, 47 Va.App. 168 , 172 n. 4, 622 S.E.2d 771 , 773 n. 4 (2005) (en banc) (reasoning that where an appellate court accepts a concession on a legal issue, that concession provides "not ... a basis for deciding [the earlier] contested issue of law, but ... a basis for not deciding it" (emphasis added)). [21] The Commonwealth does not argue that the affidavit is admissible under some other evidence rule or exception to the Confrontation Clause's bar on testimonial hearsay. [22] It is interesting to note that the United States Supreme Court in Giles, which also considered th

2009See Logan v. Commonwealth, 47 Va.App. 168 , 172 n. 4, 622 S.E.2d 771 , 773 n. 4 (2005) (en banc) (reasoning that where an appellate court accepts a concession on a legal issue, that concession provides "not ... a basis for deciding [the earlier] contested issue of law, but ... a basis for not deciding it" (emphasis added)). [21] The Commonwealth does not argue that the affidavit is admissible under some other evidence rule or exception to the Confrontation Clause's bar on testimonial hearsay. [22] It is interesting to note that the United States Supreme Court in Giles, which also considered th

2008Id. at ___, 128 S.Ct. at 2694-95 , 171 L.Ed.2d at 507-08 (Souter, J., concurring). [4] The original affidavit included incidents that occurred prior to August 2004, but those incidents were redacted at the direction of the trial court before the document was presented to the jury. [5] Although Code § 18.2-61 provides that sexual intercourse "through the use of the complaining witness's ... physical helplessness" also constitutes rape, the jury instructions in this case did not include this alternative element. [6] Under Fitzgerald v. Commonwealth, 223 Va. 615, 632 , 292 S.E.2d 798, 808 (1982),

2008Id. at ___, 128 S.Ct. at 2694-95 , 171 L.Ed.2d at 507-08 (Souter, J., concurring). [4] The original affidavit included incidents that occurred prior to August 2004, but those incidents were redacted at the direction of the trial court before the document was presented to the jury. [5] Although Code § 18.2-61 provides that sexual intercourse "through the use of the complaining witness's ... physical helplessness" also constitutes rape, the jury instructions in this case did not include this alternative element. [6] Under Fitzgerald v. Commonwealth, 223 Va. 615, 632 , 292 S.E.2d 798, 808 (1982),

2008I also concur with the majority’s holding that the trial court did not err in admitting the statements of Mrs. Crawford’s co-workers under the state-of-mind exception to the hearsay rule, see Clay v. Commonwealth, 262 Va. 258, 257-58 , 546 S.E.2d 728, 730 (2001).