Wrongdoing Case Study

The forfeiture by wrongdoing exception does not apply to Mr. Davis because there is no evidence he intended to make Ms. Davis unavailable. The United States Supreme Court has recognized that forfeiture by wrongdoing acts as an equitable defense to a Confrontational Clause challenge. Davis v. Washington, 547 U.S. 813, 832–34 (2006). But the exception only applies if the defendant “intended to prevent a witness from testifying.” Giles v. California, 554 U.S. 353, 361–62 (2008). If a defendant caused a witness to be absent but had not done so prevent that witness from testifying then the exception cannot apply. Id. Thus, the United States Supreme Court has noted that the exception does not apply “outside the context of deliberate witness tampering.” Id. at 366. The Missouri Supreme Court has also held that there must be an “intent to prevent the witness from testifying.” State v. McLaughlin, 265 S.W.3d 257, 271–73 (Mo. Banc 2008).

In dicta, the United States Supreme Court noted that the forfeiture by wrongdoing exception may apply especially to domestic violence cases. Giles, 554 U.S. at 377. The Court also noted that an ongoing criminal proceeding will be highly relevant evidence for whether the exception applies. Id. In State v. McLaughlin, the

42). The Missouri Supreme Court held in McLaughlin that the trial judge must make sufficient findings of fact that the exception apply. McLaughlin, 265 S.W.3d at 271–73. Judge Kellogg’s judgment on the motions order did not find there was sufficient evidence of intent or even forfeiture (L.F. 42). Instead the order only stated that the evidence was more probative than relevant (L.F. 42). Therefore, the trial court failed to make sufficient findings of fact to determine that forfeiture by wrongdoing exception applied and thus this case should be reversed because of that