[6/25/08 – 2:55 pm] Although a defendant who is on trial in a criminal case has no duty to assist the State in proving his guilt, such a defendant does have an affirmative duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. Thus, one a defendant who procures the absence of a witness by wrongdoing forfeits his constitutional right to confrontation as to statements made by the absent witness. This outcome is commonly referred to as the “Rule of Forfeiture by Wrongdoing.” 

    In this morning’s decision by the United States Supreme Court in Giles v. California, the Justices ruled that order for this Rule to apply, the defendant must have engaged in acts of misconduct that were specifically and intentionally designed to prevent the witness from testifying. In Giles, the police took a statement from the victim in a domestic violence case. The defendant was subsequently charged with killing the victim. At trial, the State sought to introduce the victim’s statement given on the domestic violence incident. The defendant objected and argued that under Crawford v. Washington, 541 U.S. 36 (2004) such a statement was testimonial in nature and thus excluded from evidence on confrontation clause grounds. The California state appeals court ruled that the statement was admissible against the defendant since the defendant had procured the absence of the victim by murder and thus forfeited his right of confrontation by misconduct.  

The United States Supreme Court reversed and held that this Rule did not exist at common law at the time of the adoption of the Constitution except in situations where the misconduct demonstrated the defendant’s specific intention to procure the absence of the witness. Moreover, it was never applied at common law in a case of murder. Accordingly, the Court ruled that the victim’s statement had to be excluded at trial under the principles set forth in Crawford. 

It should be noted that the New Jersey Rules of Evidence contain no provision for the exclusion of the confrontation clause right due to wrongdoing. State v. Byrd, 393 N.J. Super. 218 (App. Div. 2007). However, this issue is now before the New Jersey Supreme Court. State v. Byrd, 194 N.J. 445 (2008). Today’s decision may influence how the New Jersey Supreme Court will rule on this issue. 

Link to  a copy of Giles v. California:   http://www.law.cornell.edu /supct/html/07-6053.ZS.html