State v. Byrd

¶1concurring.

¶2I concur in the judgment of the Court that embraces the forfeiture-by-wrongdoing doctrine. I also concur fully in the judgment that the procedures employed by the trial court during defendants’ trial were insufficient and cannot provide a basis for the admission of the pre-trial out-of-court statement of the allegedly intimidated witness who refused to take the stand. The trial court’s ex parte proceedings in respect of the recalcitrant witness do not pass muster under any analysis. That said, I write separately to express my view that the trial court was not powerless to act in the face of what was transpiring on the eve of trial, namely a witness’s sudden unavailability through his refusal to take the oath and to testify, which he attributed to defendants’ wrongful conduct. I base that view on the common law’s longstanding recognition of the forfeiture-by-wrongdoing doctrine.

¶3I.

¶4New Jersey’s Constitution of 1947, art. XI, sec. I, par. 3. provides that “[a]ll law, statutory and otherwise, all rules and regulations of administrative bodies and all rules of courts in force at the time this Constitution or any Article thereof takes effect shall remain in full force until they expire or are superseded, altered or repealed by this Constitution or otherwise.” The State’s earlier constitutions contained similar language.1 Consis*359tent with the earlier versions of the 1947 Constitution’s language, the savings provision in the current article XI referencing “all law” has been interpreted to include the common law. See State v. Culver, 23 N.J. 495, 503, 129 A.2d 715 (1957), cert. denied, 354 U.S. 925, 77 S.Ct. 1387, 1 L.Ed.2d 1441 (1957). Moreover, the term “otherwise” encompasses not only change by the legislative process but also by the “processes of change inherent in the common law.” Ibid.As Chief Justice Vanderbilt said:

One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice.

[Id. at 505,129 A2d 715.]

¶5When the 1776, 1844, and 1947 Constitutions were adopted, each incorporated into our law the extant common law. Thus, in 1947 with the adoption of our current Constitution, the judicial power included whatever equitable powers that the existing common law conferred on courts in respect of the forfeiture-by-wrongdoing doctrine.* 2

¶6*360In 1879, the doctrine became expressly part of the common law of this nation, as recognized by the highest court of our country. See Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244, 247 (1879). Following the equitable doctrine that had long-standing acceptance in England,…3 the Supreme Court held in Reynoldsthat, if the accused is responsible for a witness’s unavailability, then he has forfeited his right to confront that witness. Ibid.“The Constitution does not guaranty an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege.” Ibid.

¶7Although the common law forfeiture-by-wrongdoing doctrine focused initially on a defendant’s waiver of the constitutional right to confront a witness, as the doctrine evolved courts used it as support not only for bypassing a defendant’s confrontation clause challenges, but also to support the admission of the unavailable witness’s hearsay statements without having to resort to a separate hearsay exception. See, e.g., United States v. White, 116 F.3d 903, 912 (D.C.Cir.1997) (noting common trend of loss of both right to confront witness and to object based on hearsay); United States v. Houlihan, 92 F.3d 1271, 1282 (1st Cir.1996) (same); United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir.1982) (same); United States v. Thevis, 665 F.2d 616, 633 (5th Cir.1982) (same). As the D.C. Circuit explained in White, supra,“[bjecause both the hearsay rule and the confrontation clause are designed to protect against the dangers of using out-of-court declarations as *361proof, a defendant’s actions that make it necessary for the government to resort to such proof should be construed as a forfeiture of the protections afforded under both.” 116 F.3d at 912.

¶8The common rationale in that decisional trend recognized that both bodies of law (confrontation rights and the hearsay rule) attempt to strike a balance between the government’s need for probative evidence and the defendant’s stake in testing the government’s case through cross-examination. See Houlihan, supra, 92 F. 3d at 1281 (“In constructing the balance the main interest that must be offset against the government’s need for evidence is the accused’s right to confrontation ... [o]nce the confrontation right is lifted from the scales by operation of the accused’s waiver of that right, the balance tips sharply in favor of the need for evidence.”). The United States Court of Appeals for the Fifth Circuit was the first to discuss in detail the interplay between the two principles:

Although the Supreme Court explicitly has held that the confrontation clause and the hearsay rule are not coterminous, the Court recently has stated that it is a “truism” that both provisions protect the same values. Both the confrontation clause and the hearsay rule seek to balance the need for relevant, probative evidence against the defendant’s interest in testing the accuracy of evidence through personal confrontation and cross-examination. As noted by the Supreme Court in Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895), the confrontation clause envisions “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”

Similarly, the hearsay rule envisions testimonial evidence given under the ideal conditions of a witness under oath, in the personal presence of the trier of fact, and subject to cross-examination. The reason that the hearsay rule and confrontation clause are not coterminous is not because the two provisions protect different interests, but because the two may balance the relevant interests differently. Thus a particular hearsay rule may admit evidence which offends confrontation rights because the rule favors the need for evidence and its probable reliability over the defendant’s confrontational rights. Conversely, a particular hearsay rule may restrict evidence which nevertheless satisfies the confrontation clause because the rule favors increased protection for the defendant. In either case, however, the key interest offsetting the need for evidence is the defendant’s interest in confrontation; if this interest is removed by a waiver of confrontation rights, the balance must necessarily fall in favor of the need for evidence. We hold, therefore, that *362under the circumstances of this case, [defendant’s] waiver of his confrontation rights also acted as a waiver of the right to raise a hearsay objection once the prosecution demonstrated a need for the evidence.

[Thevis, supra,665 .F.2d at 632-33 (internal citations and quotations omitted).]

¶9The Theviscourt clarified its holding, emphasizing that its decision would “not permit wholesale admission of hearsay evidence when a witness is unavailable.” Id.at 633 n. 17. Thus, “[a] hearsay statement of a potential witness is admissible only if the government shows, by clear and convincing evidence that (1) the defendant caused the witness’ unavailability (2) for the purpose of preventing that witness from testifying at trial.” Ibid.It added that, even when the two-part test is met, the trial court should scrutinize the evidence and, if it “appears unreliable, its probative value may well be outweighed by the unfair prejudice resulting from unreliability and should be excluded under [Federal Rule of Evidence ] 403.” Ibid.

¶10To be sure, other circuit courts addressing the hearsay aspect of an unavailable witness’s evidence resulting from a defendant’s wrongdoing have determined that the hearsay rules still applied and required application of an exception to admit the evidence. When the defendant caused the declarant’s unavailability, the decisions in those circuits admitted the hearsay statements based on Federal Rule of Evidence 807.4See, e.g., United States v. Rouco, 765 F.2d 983, 994 (11th Cir.1985) (admitting testimony under Fed.R.Evid. 804(b)(5) and Fed.R.Evid. 803(24) which were combined and transferred to Fed.R.Evid. 807 with virtually same language); United States v. Carlson, 547 F.2d 1346, 1354 (8th Cir.1976) (same). That said, prior to the adoption of an explicit forfeiture-by-wrongdoing evidence rule in the Federal Rules of Evidence in 1997, every federal circuit court of appeals had adopted some form of the common law doctrine of forfeiture by wrongdoing, although differing on how the doctrine should be implemented in respect of the standard of proof necessary. Most *363required that the government show by a preponderance of the evidence that the defendant procured the witness’s unavailability. See, e.g., United States v. Scott, 284 F.3d 758, 762 (7th Cir.2002); United States v. Dhinsa, 243 F.3d 635, 653-54 (2d Cir.2001); United States v. Emery, 186 F.3d 921, 927 (8th Cir.1999); Houlihan, supra,92 F.3d at 1280. Only the Fifth Circuit required that the government show by clear and convincing evidence that the defendant was responsible for the witness’s absence. See Thevis, supra, 665 F.2d at 631. And, the circuits differed on whether the defendant forfeited only the right to confrontation or also forfeited the right to object to the evidence from the unavailable witness based on hearsay grounds.

¶11In 1997, those differences evaporated when the doctrine of forfeiture by wrongdoing was codified by Federal Rule of Evidence 804(b)(6). Inserted in the evidence code as a hearsay exception, Rule 804(b) now provides that “the following are not excluded by the hearsay rule if the declarant is unavailable as a witness ... (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 declar-ant as a witness.” 5 A separate hearsay exception is no longer necessary to admit an out-of-court statement by a witness made unavailable through a defendant’s own wrongdoing. Instead a defendant’s misconduct forfeits both his or her right to confront the witness and the right to object on hearsay grounds. The Rule does not require particularized indicia of reliability concerning the substance of the testimony.6 It operates, as did the common law doctrine, on the recognition of “the need for a prophylactic rule to deal with abhorrent behavior ‘which strikes at the heart of the *364system of justice itself.’ ” Fed.R.Evid. 804(b)(6), advisory committee’s note (quoting Mastrangelo, supra,693 F.2d at 273). In reaffirming the now-codified common law doctrine, the Supreme Court’s decision in Crawford v. Washington, accepts that this confrontation exception is in no way a means of assessing reliability. 541 U.S. 36, 62, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177, 199 (2004). Rather, “the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.” Ibid, (citing Reynolds, supra,98 U.S. at 158-159, 25 L.Ed. at 244). And, differences among the circuit courts about the need for an independent hearsay exception to admit forfeiture-by-wrongdoing evidence were resolved. The doctrine’s codification in the federal rules extinguishes a defendant’s objections to such evidence as hearsay.

¶12Among the states, some version of the doctrine has been adopted in many jurisdictions. Those states have grappled with the same questions that, early on, plagued the circuit courts as to whether the doctrine would apply to both confrontation clause and hearsay objections.

¶13In Commonwealth v. Edwards, the Massachusetts Supreme Judicial Court was presented with the question of whether forfeiture by wrongdoing would apply when the defendant colluded with a witness to ensure that the witness would not be heard at trial. 444 Mass. 526, 830 N.E.2d 158, 168-69 (2005). In deciding whether to adopt the common law doctrine, the court recognized the doctrine’s widespread support in other states. Id. at 166-67. More importantly, it found that the forfeiture rule advances important public policy interests by ensuring that a wrongdoer does not profit by reason of his actions, and “furthers the truth-*365seeking function of the adversary process, allowing fact finders access to valuable evidence no longer available through live testimony.” Id. at 167. The court then fixed the scope of the doctrine as it would be applied in its state: “[a] defendant forfeits, by virtue of wrongdoing, the right to object to the admission of an unavailable witness’s out-of-court statements on both confrontation and hearsay grounds on findings that (1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness’s unavailability.” Id. at 170. In so doing, the court acknowledged that denying a defendant the right to object on grounds of hearsay might present a situation where a statement was so lacking in reliability that its admission would raise due process concerns. Id. at 170 n. 21; see also United States v. Aguiar, 975 F. 2d 45, 47 (2d Cir.1992) (recognizing that “the admission of facially unreliable hearsay would raise a due process issue” and stating that objection that probative value is outweighed by prejudicial effect is “not waived by procuring a witness’s absence”). That possibility was not presented by the facts of the case, however, because the testimony admitted was taken before the grand jury under oath and, thus, the court found no due process problem with the admission of the testimony. Edwards, supra,830 N.E. 2d at 170 n. 21.

¶14Similarly, in 2004, the Kansas Supreme Court reaffirmed its earlier holding in State v. Gettings, 244 Kan. 236, 769 P.2d 25 (1989), that a waiver of the right to confrontation, based on the wrongful absenting of a witness, also constitutes a waiver of any hearsay objections to the prior statements made by the absent witness. State v. Meeks, 277 Kan. 609, 88 P.3d 789, 794 (2004). The court adopted the reasoning of the Fifth Circuit in Thevis, that a waiver of the right to confrontation based upon the procurement of the absence of the witness also constitutes a waiver of any hearsay objections to prior statements of the absent witness. Ibid.The Kansas Court warned, however, that before a court determines that a defendant has waived his right to object on hearsay grounds, it must determine by a preponderance of the *366evidence that the accused brought about the unavailability. Ibid.Thus, in Meeks, the Kansas Supreme Court found that the witness’s statements had been properly admitted despite the defendant’s argument that they lacked any adequate indicia of reliability because defendant was involved in procuring the absence of the murdered witness. Ibid.; see also State v. Hallum, 606 N.W.2d 351, 356 (Iowa 2000) (stating that defendant who procures witness’s unavailability is precluded from asserting both confrontation right and right to object on hearsay grounds).

¶15Concededly, some states adopting the forfeiture-by-wrongdoing doctrine have held that application of the doctrine does not preclude hearsay objections under relevant evidence rules and, therefore, the admission of such testimony depends on the applicability of a valid hearsay objection. In Vasquez v. People, the Supreme Court of Colorado held that the doctrine of forfeiture by wrongdoing only applies to confrontation rights and does not preclude hearsay objections. 173 P.3d 1099, 1101-02 (2007) (en banc). The court noted that a number of jurisdictions had held that forfeiture by wrongdoing automatically prohibits a hearsay objection to the unavailable witness’s testimony, id. at 1106, and further acknowledged that the “hearsay rules and the Confrontation Clause are generally designed to protect similar values, both defending against the dangers of using out-of-court declarations as proof,” and that the Confrontation Clause provides more expansive protections, ibid, (quoting White, supra,116 F.3d at 912-13). The court determined, however, that “the more prudent course is to require that the hearsay rules be satisfied separately.” Ibid.It reasoned that hearsay is presumptively unreliable evidence and “the fact that the defendant has forfeited his confrontation rights by wrongdoing does not render the evidence reliable.” Ibid.Accordingly, the court held that “the reliability of the evidence must still be ensured according to the standards of the Colorado Rules of Evidence.” Ibid.7

¶16*367II.

¶17Our Court is now presented with the opportunity to apply the common law doctrine of forfeiture by wrongdoing, which we are now expressly adopting. However, in doing so, I respectfully part company with my colleagues in that I would fully adopt the common law doctrine and hold that a defendant found to have procured a witness’s unavailability is precluded from objecting to the admissibility of the witness’s testimony on both confrontation clause and hearsay grounds.

¶18The common law doctrine contains well-recognized decisional strands, based in equity, that hold that a defendant who wrongfully procures the unavailability of a witness at trial forfeits his right to confront that witness and also his right to object on grounds of hearsay. In essence, a court is doing no more than admitting evidence that would have been admissible had the witness been available to testify. In 1982, in Steele v. Taylor, the Sixth Circuit described the admission of such evidence in substantially those terms:

Our research has disclosed no case in which a court upon a finding of wrongful conduct has declined to admit prior statements that would have come in had the witness taken the stand. Neither has our research disclosed a case finding that a defendant wrongfully causes a witness’s unavailability by exercising the right at trial to object to the presence, capacity or testimony of the witness.

From these cases we derive essentially the same rule as the one stated by the state trial judge: A prior statement given by a witness made unavailable by the *368wrongful conduct of a party is admissible against the party if the statement would have been admissible had the witness testified. The rule ... is based on a public policy protecting the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness. The rule is also based on a principle of reciprocity similar to the equitable doctrine of “clean hands.” The law prefers live testimony over hearsay, a preference designed to protect everyone, particularly the defendant. A defendant cannot prefer the law’s preference and profit from it, as the Supreme Court said in Reynolds, w'hile repudiating that preference by creating the condition that prevents it.

[ 684 F.2d 1193, 1202 (6th Cir.1982) (internal citations and quotations omitted).]

¶19Over a decade later, the Court of Appeals for the District of Columbia similarly explained that reliability was not the principal concern of the doctrine of forfeiture by wrongdoing. In White, supra,the D.C. Circuit was presented with an argument by defendants that, notwithstanding that they had forfeited their rights under the hearsay rule in addition to their confrontation rights, the trial court nevertheless “should have more intensively screened [the unavailable witness’s] statements for reliability.” 116 F.3d at 913. In rejecting that claim, the court stated that “[t]he government should be no worse off than if defendants had not murdered [the witness],” ibid., and held that “[t]he trial court properly ruled that the forfeiture would cover only the first layer of hearsay, allowing admission of those statements that would have been admissible if [the witness] himself had made them on the witness stand, no more and no less,” ibid.The court noted that the defendants were free to seek “exclusion under Rule 403 based upon the lack of reliability of the agents who relayed [the witness’s] testimony, but they have identified no trial court error on that score. Thus the evidence did not fall short of the minimal reliability standards of constitutional due process and Fed.R.Evid. 403.” Ibid.

¶20In my view, there are ample procedural safeguards inherent in the common law doctrine. First, as the federal circuits initially recognized and most states require, at a minimum, the prosecution must prove by a preponderance of the evidence that the defendant procured the witness’s unavailability. See Fed.R.Evid. 804(b)(6) advisory committee’s note. That requirement ensures that the defendant actually prevented the witness from testifying. Second, *369the normal balancing test required under Evidence Rule 403 generally, and sufficiently, excludes unreliable and prejudicial evidence. See generally Kelly Rutan, Comment, Procuring the Right to An Unfair Trial: Federal Rule of Evidence 801(b)(6) and, the Due Process Implications of the Rule’s Failure to Require Standards of Reliability for Admissible Evidence, 56 Am. U.L.Rev. 177, 201-02 (2006). Evidence Rule 403 states that “evidence may be excluded if its probative value is substantially outweighed by the risk of [ junfair prejudice.” Clearly evidence that is deemed so unduly unreliable as to be prejudicial to the defendant would not be admitted into evidence. Such evidence would be excluded on non-hearsay grounds even if the declarant had been available to testify. When applicable, the same reasoning, not a claim of hearsay, should prevent the admissibility of the evidence when the defendant procures the declarant’s unavailability.8

¶21The question is not one of reliability but one of broad public policy:

whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries, and turn them into a solemn farce. By adopting the doctrine of forfeiture by wrongdoing, wo, like many other jurisdictions, recognize that neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong.

[Edwards, supra, 830 N.E.2d at 176 (internal quotations and citations omitted).]

¶22In my view, we can include a forfeiture-by-wrongdoing exception in our evidence rules, however, we need not “create,” through the formal adoption of an evidence rule, a new “exception” for hearsay when the evidence must not be analyzed and treated in such manner. Rather, we should recognize that our courts have *370equitable powers, long-accepted in this nation’s common law, for addressing a defendant’s wrongdoing that undermines the judicial system. Our Constitution envisioned a system in which the common law would remain in force until it was in someway altered, superseded or repealed. Not only was the common law to remain in force, but our courts were granted the power to adapt and apply it as needs arose.

¶23Thus, although I have no quarrel with the majority’s determination that our evidence rules would benefit from the inclusion of an express rule to address the admission of evidence in such circumstances, I would not insist that the enactment of a hearsay exception precede further proceedings on remand to correct the process by which the unavailable witness’s testimony was admitted. I would remand for a new Rule 104 hearing at which the State and defendants were present and were allowed to examine the witness to establish whether he was truly unavailable to testify and whether his unavailability was the result of defendants’ wrongdoing. If so, then I would affirm defendants’ convictions. If not, the conviction must be reversed.

¶24Justices RIVERA-SOTO and HOENS join in this opinion.

¶25For affirmance—Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS—7.

¶26Opposed—None.