Rule 804(b)(6). Forfeiture by wrongdoing

  • militarydefenselawyers375Rule 804(b)(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
  1. Giles v. California, 128 S. Ct. 2678 (2008) (holding that before finding that a defendant forfeited his right to confrontation by his wrongdoing, the government must prove that the defendant intended to prevent a witness from testifying.)
  2. United States v. Marchesano, 67 M.J. 535 (A. Ct. App. 2008) (adopting a fourpart test for determining whether a party “acquiesced in the wrongdoing.” (1)
    Whether “the witness was unavailable through the actions of another;” (2)
    whether “the act of another was wrongful in procuring the unavailability of the
    witness;” (3) whether “the accused expressly or tacitly accepted the wrongful
    actions of another;” and (4) whether “the accused did so with the intent that the
    witness be unavailable.”
  • Rule 805 and 806. Hearsay within Hearsay; Attacking and Supporting Credibility of
    1. Hearsay included within hearsay is not excluded under the hearsay rule if each
      part of the combined statements conforms with an exception to the hearsay rule.
      United States v. Little, 35 M.J. 644 (N.M.C.M.R. 1992).
    2. When a hearsay statement, or a statement defined in rule 801(d)(2)(c), (D), or
      (E), has been admitted in evidence, the credibility of the declarant may be
      attacked, and if attacked may be supported, by any evidence which would be
      admissible for those purposes if declarant had testified as a witness.

United States v. Marchesano

Rule 805 and 806.