Supreme Judicial Court (September 14, 2010)
The scope of the forfeiture by wrongdoing doctrine, as announced in Commonwealth v. Edwards, 444 Mass. 526 (2005) is consistent with the United States Supreme Court's more recent articulation of the forfeiture doctrine in Giles v. California, 128 S. Ct. 2678 (2008).
The Commonwealth's evidence of hearsay statements made by a victim did not violate the defendant's right to confrontation where the defendant married the victim to enable her to exercise her spousal privilege and thereby make her unavailable to testify at trial.
On December 13, 2007, the defendant broke into his girlfriend's home, grabbed her and held a knife to her throat. On December 21, 2007, the defendant was charged with Assault and Battery, Assault with a Dangerous Weapon, and Home Invasion. The defendant and victim were not engaged at the time of the offense, but they were quickly married on January 5, 2008. On January 15, 2008, the defendant surrendered himself to the court and was arraigned on the charges. The Commonwealth moved to have the defendant held without bail under G.L. c. 276, §58A. At the dangerousness hearing, the victim invoked her spousal privilege and refused to testify. The victim again refused to testify at trial. Prior to trial, the Commonwealth moved to admit hearsay statements made by the victim before she married the defendant arguing that, by marrying the victim in order for her to claim her spousal privilege, the defendant had forfeited his right to object on confrontation and hearsay grounds to the admission of the statements under the forfeiture by wrongdoing doctrine. The judge allowed the Commonwealth's motion and the defendant was convicted of one count of Assault and Battery. The defendant appealed his conviction.
The defendant first argued that his conviction should be reversed because the intent requirement established in 2008 by the United States Supreme Court in Giles requires the Massachusetts Supreme Court to narrow its 2005 holding in Edwards.
In 2005, the Massachusetts Supreme Judicial Court in Edwards held that, "the wrongdoing in forfeiture by wrongdoing is simply the intentional act of making the witness unavailable to testify or helping the witness become unavailable. Forfeiture by wrongdoing may include a defendant's collusion with a witness to ensure that the witness will not be heard at trial. "
In 2008, the Supreme Court in Giles held that, under the Sixth Amendment, the forfeiture by wrongdoing doctrine applies only where the defendant acts with the intent to prevent the witness from testifying. "It is not enough for the defendant to know that his wrongdoing will cause the witness's unavailability to testify at trial; he must intend that result."
The defendant argued that the intent requirement of Giles requires Massachusetts to narrow its holding in Edwards that forfeiture by wrongdoing may be established by collusion between the defendant and the unavailable witness. The Supreme Judicial Court disagreed concluding that its decision in Edwards is consistent with the Supreme Court's decision in Giles. "We declared in Edwards that a defendant's collusion is sufficient to establish forfeiture only where the defendant acted with the intent to procure the witness's unavailability. And, to establish collusion, we require that a defendant actively facilitate the carrying out of the witness's independent intent not to testify. By requiring that the defendant actively assist the witness in becoming unavailable with the intent to make her unavailable, our doctrine of forfeiture by wrongdoing is at least as demanding as Fed. R. Evid. 804(b) (6), which permits a finding of forfeiture where the defendant acquiesced in conduct that was intended to, and did, make the witness unavailable to testify."
The Wrongdoing Need Not Be Criminal:
The defendant next argued that his conviction should be reversed because the Giles decision requires criminal wrongdoing. The Court disagreed quoting from the Giles case, "the wrongdoing that may warrant forfeiture of a defendant's confrontation rights was conduct designed to prevent a witness from testifying." There is no requirement that the conduct be criminal.
Based on the above reasoning and a thorough forfeiture by wrongdoing analysis the Court affirmed the defendant's conviction for Assault and Battery concluding that "the hearsay evidence was properly admitted where the defendant forfeited his confrontation and hearsay objections to the admission of the victim's statements because he intended, by marrying the victim, to enable her to exercise her spousal privilege and thereby make her unavailable