holding forfeiture-by-wrongdoing exception was a founding-era doctrine that required wrongful conduct "designed to prevent the witness from testifying" or use of "an intermediary for the purpose of making a witness absent" and reversing the conviction based on district court's decision to apply the exception without considering whether defendant intended to make a witness unavailable
How later courts described this case
- holding forfeiture-by-wrongdoing exception was a founding-era doctrine that required wrongful conduct "designed to prevent the witness from testifying" or use of "an intermediary for the purpose of making a witness absent" and reversing the conviction based on district court's decision to apply the exception without considering whether defendant intended to make a witness unavailable
- explaining that this history underlay the Court’s approval of Fed.R.Evid. 804(b)(6), entitled “Forfeiture by wrongdoing,” which “applies only when the defendant ‘engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness’ ”
- holding that California Supreme Court's theory of "forfeiture by wrongdoing" was not an exception to confrontation requirement and noting that "the guarantee of confrontation is no guarantee at all if it is subject to whatever exceptions courts from time to time consider `fair'"
- finding when an "abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution . . . ."
Written by the judges who cited it.
Distinguished
Distinguished by United States v. Celis, 608 F.3d 818 (2010)
— U.S. -, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) is inapposite, because here the protected witnesses testified at trial while
The opinion
Justice Thomas,
concurring.
I write separately to note that I adhere to my view that statements like those made by the victim in this case do not implicate the Confrontation Clause. The contested evidence is indistinguishable from the statements made during police *378 questioning in response to the report of domestic violence in Hammon v. Indiana, decided with Davis v. Washington, 547 U. S. 813 (2006). There, as here, the police questioning was not “a formalized dialogue”; it was not “sufficiently formal to resemble the Marian examinations” because “the statements were neither Mirandized nor custodial, nor accompanied by any similar indicia of formality”; and “there is no suggestion that the prosecution attempted to offer [Ms. Avie’s] hearsay evidence at trial in order to evade confrontation.” See id., at 840 (Thomas, J., concurring in judgment in part and dissenting in part).
Nonetheless, in this case respondent does not argue that the contested evidence is nontestimonial, ante, at 358; the court below noted “no dispute” on the issue, 40 Cal. 4th 833, 841 , 152 P. 3d 433, 438 (2007); and it is outside the scope of the question presented, Brief for Petitioner i. Because the Court’s opinion accurately reflects our Confrontation Clause jurisprudence where the applicability of that Clause is not at issue, I join the Court in vacating the decision below.