holding that equity compelled the adoption of the doctrine of forfeiture by wrongdoing when the defendant was unable to confront a witness who was unavailable due to defendant’s own action
How later courts described this case
- holding that equity compelled the adoption of the doctrine of forfeiture by wrongdoing when the defendant was unable to confront a witness who was unavailable due to defendant’s own action
- holding the substantial deprivation of constitutional protections demands that the prosecution to prove forfeiture by “clear, cogent, and convincing” evidence
- acknowledging the possibility that "there are legitimate strategic and tactical reasons why informing a jury about issues of punishment would advance the interest of justice and provide a more fair trial"
- applying doctrine of forfeiture by wrongdoing to defendant’s Sixth Amendment confrontation clause claim
Written by the judges who cited it.
The opinion
¶56 (concurring in result) — Although I concur with the result the majority reaches, I write separately to express the view that the doctrine of forfeiture by wrongdoing should not be adopted by this court, particularly in a factual circumstance such as we have here. In that regard, I agree with Justice Sanders’s conclusion that where the alleged conduct that rendered the declarantvictim unavailable forms the factual basis for the charge against the defendant, the doctrine should be eschewed. Dissent at 940. For a trial court to determine, during the trial, that the defendant has committed the charged crime, *938 albeit by a standard less than “beyond a reasonable doubt,” is offensive to the presumption of innocence that must prevail throughout the trial. In Washington, judges regularly instruct jurors to “keep an open mind and not decide any issue in the case until it is submitted to [them] for [their] deliberation.” 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.01, at 5 (2d ed. 1994). Trial judges should not be held to a lesser standard.
Alexander, C.J.
*938 ¶57 I concur in the result here, though, because everything Hartanto Santoso said to Detectives John Berberich, Anne Malins, and Kristi Roze, as well as to Linda Webb, he said to other persons who testified at trial. Consequently, the confrontation clause error is harmless.
C. Johnson, J., concurs with Alexander, C.J.