Major Appellate Case Wins Summaries Commonwealth v. Edwards Edwards adopted the "forfeiture by wrongdoing" exception to the hearsay rule. Pursuant to this exception, a defendant who has caused a witness to be unavailable for trial forfeits his right to cross-examine that witness and, consequently, cannot object to the admission of that absent witness's statements. Edwards reduces the incentive for defendants to convince witnesses (whether by intimidation or persuasion) to avoid testifying and allows the Commonwealth to proceed when defendants do procure absence. Second, Edwards recognized that, because intimidation and threats are often hard to prove, prosecutors only have to prove that the defendant had a "meaningful impact" on the witness's unavailability or decision not to testify. Although "forfeiture by wrongdoing" has been adopted by the federal courts and many States, our version of the doctrine is one of the broadest (if not the broadest). Commonwealth v. Le Le held that, if a witness cannot remember making a prior identification or denies having made one, the Commonwealth nonetheless can introduce testimony from a second witness who saw the first witness make the identification to prove the defendant's identity. Prior to Le, a prior identification was admissible only if the witness admitted on the stand to having made it (whether or not he stood by it). Since the most common form of witness intimidation is convincing witnesses to deny a prior identification, this case is a valuable tool. Now, once a witness makes an identification, it is admissible, so long as the witness is available to testify. Thus, Edwards covers the situation where the defendant causes the witness not to be available at trial, and Le cover the situation where the defendant causes the witness to attend trial but to lie. Commonwealth v. Pagan Another recent case, Commonwealth v. Pagan, should also assist in addressing witness intimidation. Pagan held that once a defendant's bail has been revoked, that order will remain in effect for sixty days (except in very particular circumstances). The significance of this ruling in the witness intimidation context is that a defendant who intimidates a witness while on bail can expect a non-negotiable period of sixty days in jail. Return to the previous page.