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Confrontation, "Testimonial" Statements, and Forfeiture by Wrongdoing

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In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court redefined Confrontation Clause jurisprudence to keep out of criminal trials nearly all out-of-court statements if they are "testimonial" but to leave to state hearsay law the admissibility of statements that are not "testimonial." The details of exactly what is "testimonial" were left to be sorted out later.

One such case is going to trial in Wisconsin, following a ruling of that state's Supreme Court, Carrie Antlfinger reports for AP. Julie Jensen suspected that her husband, Mark, was going to kill her. She wrote a letter to the police and gave it to a neighbor to be given to the police in the event of her death. She also left voicemails for a police officer and talked to the neighbor and her son's teacher. Julie died of poison on December 3, 1998. Mark was charged with homicide on March 19, 2002.

After discussing the still-unclear boundaries of Crawford, the Wisconsin Supreme Court concluded, "that Julie's statements to the police and the letter are testimonial and Julie's statements to her neighbor, Wojt, and her son's teacher, DeFazio, are nontestimonial."

This case may be more important for its embrace of the "forfeiture by wrongdoing" rule, which Crawford accepts in dicta in part V. A., citing Reynolds v. United States, 98 U.S. 145, 158-159 (1879).* Mark should not be able to complain about Julie's unavailability for cross-examination if he is the one who made her unavailable by killing her. In practice, this means that the judge must decide if Mark is guilty by the preponderance of the evidence before allowing the jury to consider the otherwise-excluded evidence in deciding whether he is guilty beyond a reasonable doubt. The judge subsequently did find that, according to the AP article.

If Jensen is convicted, this case may be headed to the U.S. Supreme Court. Regrettably, the New Mexico v. Romero case on forfeiture by wrongdoing is due to be dropped. The case was dismissed in the trial court while waiting for a decision on the certiorari petition, we are told.

*There seems to be some disagreement on the date of the Reynolds decision. The U.S. Supreme Court's "dates of decisions" list gives it as Jan. 6, 1879.

1 Comment

Isn't there a deeper problem with the admission of these statements, namely their prejudicial effect. Many courts have stated that hearsay predictions of death etc. are "a finger from the grave" and have placed limits on their admissibility on grounds of prejudice. The other issue is what is at issue in the trial. Obviously, if this defendant puts on evidence that they had a great marriage, then this evidence should be admissible for the non-hearsay purpose of proving that the marriage wasn't so hot. There should be no Confrontation Clause issues in such a case.

The interesting thing, I think, is when the statements of decedent are more than just naked predictions, but contain specific factual assertions.

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