491.016. Otherwise inadmissible witness statement admissible in criminal proceeding, when. — 1. A statement made by a witness that is not otherwise admissible is admissible in evidence in a criminal proceeding as substantive evidence to prove the truth of the matter asserted if, after a hearing, the court finds, by a preponderance of the evidence, that:
(1) The defendant engaged in or acquiesced to wrongdoing with the purpose of causing the unavailability of the witness;
(2) The wrongdoing in which the defendant engaged or acquiesced has caused or substantially contributed to cause the unavailability of the witness;
(3) The state exercised due diligence to secure by subpoena or other means the attendance of the witness at the proceeding, or the witness is unavailable because the defendant caused or acquiesced in the death of the witness; and
(4) The witness fails to appear at the proceeding.
2. In a jury trial, the hearing and finding to determine the admissibility of the statement shall be held and found outside the presence of the jury and before the case is submitted to the jury.
Notes of Decisions
State of Missouri v. Ogerta Helena Hartwein, 648 S.W.3d 834 (Mo. Ct. App. 2022).
· cites it 8× “The exception, which has since been codified by statute,’ provided “that ‘if a witness is absent by [the defendant’s] own Subsequent to the trial court’s evidentiary ruling in this case, the Missouri legislature codified the forfeiture-by- wrongdoing doctrine in Section 491.016,…”
State of Missouri v. Samuel L. Scott, 676 S.W.3d 336 (Mo. Ct. App. 2023).
· cites it 4× “Section 491.016°, which codifies the forfeiture by wrongdoing doctrine, provides that a hearsay statement made by a witness may be admissible after a court finds by a preponderance of evidence that (1) the defendant engaged in wrongdoing with the purpose of causing the witness’s…”
State of Missouri v. Kevin Fields, 675 S.W.3d 562 (Mo. Ct. App. 2023).
· cites it 3× “Section 491.016, RSMo (Cum. Supp. 2021). 9 Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.”
State of Missouri v. Christopher B. Buechting, 633 S.W.3d 367 (Mo. Ct. App. 2021).
· cites it 2× “Section 491.016 (emphasis added). 3 Brittany testified Victim was scared and Robyn observed that she could not stand up straight.”
State of Missouri v. Mark J. Matlock, 717 S.W.3d 277 (Mo. Ct. App. 2025).
· cites it 2× “The Missouri legislature codified the forfeiture-by-wrongdoing exception in § 491.016, RSMo (Cum. Supp. 2021). To admit hearsay under this statute, the State needs to satisfy four requirements, including that “[t]he defendant engaged in or acquiesced to wrongdoing with the…”
State of Missouri v. Orlando C. Moore, Sr., 721 S.W.3d 893 (Mo. Ct. App. 2025).
· cites it 2× “The State requested a pretrial hearing pursuant to § 491.016 (“491 hearing”), the statute that codifies the forfeiture-by-wrongdoing hearsay exception.”
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