Forfeiture By Wrongdoing: An Evidence Concept
Birdsong wrote the following article for students of Evidence law as well as anyone interested in learning how a common law concept get codified into the Federal Rules of Evidence.
Read and learn.
THE EXCLUSION OF HEARSAY THROUGH
FORFEITURE BY WRONGDOING – OLD WINE IN A NEW BOTTLE – SOLVING THE MYSTERY OF THE CODIFICATION OF THE CONCEPT INTO FEDERAL RULE 804(B)(6)
By: Leonard Birdsong
© 2001
I. INTRODUCTION
The development of modern rules of evidence has been a process of putting old wine into new bottles. That is, many of the old common law rules and notions of evidence have been codified into modern day state and federal evidence codes. This article examines one such recent codification of a common law concept, forfeiture by wrongdoing, into the Federal Rules of Evidence and seeks to determine whether such codification was really necessary.
The Federal Rules of Evidence, used in federal courts and adopted by many states, Puerto Rico, and the military are a codification of years of evidence rules.1 The rules concerning hearsay have been codified in the Federal Rules of Evidence at Article VIII. The Rules recognize twenty eight standard exceptions to the hearsay rule. In addition, a number of “nonhearsay” exceptions are also recognized. Furthermore, Congress adopted rules 803(24) and 804(b)(5), as residual hearsay exceptions. These two rules allow introduction of hearsay statements not specifically covered by any of the named exceptions but having circumstantial guarantees of trustworthiness if the court determines that certain stated conditions are met.
In 1997, Congress amended the hearsay rules in two significant ways. First, the residual hearsay rules of Rule 803(24) and Rule 804(b)(5), were combined into one new Rule 807. Then, in 1997 Congress added a new provision, Rule 804(b)(6), which excluded forfeiture by wrongdoing from hearsay.
The new Rule 804(b)(6) provides:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
* **** *
(6) Forfeiture by Wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
The promulgation of this new rule was another case of putting old wine into a new bottle. In common terms, the rule established the proposition that a defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness. According to its drafters 804(b)(6) was intended as a prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself. That is, the killing of witnesses or other wrongdoing that might prevent a witness from testifying at trial.
