444 Mass. 526 | Mass. | 2005
This case presents the issue whether and in what circumstances the grand jury testimony of an unavailable witness may be admitted substantively against defendants who, the Commonwealth claims, procured the unavailability of that witness.
Background. We summarize the facts and procedural history, but reserve for later discussion the details relevant to procuring the witness’s unavailability. The parties have stipulated to the following facts, although the defendants make no admission as to their truth and reserve the right to contest them at trial. Because the procedural history plays an important role in our decision, we set it forth in some detail.
The charges against the defendants stem from the July 3, 2001, shooting of Yves Andre, a taxicab driver, in the Hyde Park section of Boston. The victim told Boston police officers that he had been shot by a young black male, approximately seventeen years of age, whom he had picked up in his taxicab along with two other young black males. As a result of the shooting, the victim is paralyzed from the waist down.
In September, 2001, a Suffolk County grand jury indicted Jermaine Edwards, Eric Davis, and Tyrone Brown in connection with the shooting. Edwards was charged with armed assault with intent to murder (G. L. c. 265, § 18 [>]); assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A);
Jeremy Crockett testified on three occasions before the grand jury (August, 2, 8, and 9, 2001), each time elaborating on and amending his earlier testimony concerning the events of July 3, 2001. The three defendants spent the night at Crockett’s home on the evening of July 3, 2001, and Crockett testified about his conversations with, and observations of, the defendants on that date. His testimony incriminated all three. For example, Crockett testified that one of the defendants, on arriving at his home, told him, “Cobby dude just got shot,” and that the defendants searched for a gun that Edwards had hidden on a pathway. Crockett was, and remains, the Commonwealth’s key witness. Without his testimony, the Commonwealth acknowledges that it has insufficient evidence to pursue any of the nonperjury charges.
The trial was initially scheduled for June 10, 2003, and the Commonwealth expected that Crockett would testify against the defendants. The trial did not go forward on that date, and on June 21, 2003, Crockett first informed the prosecution that he did not want to testify and would prefer to serve a sentence for contempt of court. Crockett then failed to appear for several trial dates, including one scheduled for December 8, 2003. On December 12, 2003, Crockett was taken into custody by Boston police on a copias. Although granted immunity, after the appropriate hearing, Crockett persisted in his refusal to testify at the defendants’ scheduled trial and, on April 12, 2004, was found in contempt of court in violation of G. L. c. 233, § 20H, and sentenced to 365 days in the house of correction.
The defendants’ trial was eventually rescheduled for June, 2004. Prior to commencement of trial, the Commonwealth filed
A Superior Court judge held a hearing on the motions in limine at which no testimony was presented and no exhibits were marked as evidence. As its primary indication of collusion, the Commonwealth relied on its representation of the contents of several recorded telephone conversations, initiated by Edwards while he was incarcerated and made just prior to two scheduled trial dates (those on June 10, 2003, and December 8, 2003), in which Edwards allegedly conspired with Crockett and others to procure Crockett’s unavailability for trial.
The Commonwealth petitioned a single justice of this court seeking relief under G. L. c. 211, § 3, from the judge’s order denying its motion, or in the alternative leave to appeal under Mass. R. Crim. R 15, as appearing in 422 Mass. 1501 (1996). The Commonwealth also requested a stay of the trial proceedings pending review. The single justice ordered the trial stayed and reserved and reported the matter to the full bench.
Discussion. The defendants assert that the judge properly denied the Commonwealth’s motion to admit Crockett’s grand
Notwithstanding these potential barriers to its admission, the Commonwealth urges this court to admit the testimony by adopting the doctrine of “forfeiture by wrongdoing.” Whether to adopt the “forfeiture by wrongdoing” doctrine is a question of law, which we review de nova. See, e.g., State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000). See also Commonwealth v. Vuthy Seng, 436 Mass. 537, 543, cert. denied, 537 U.S. 942 (2002) (adequacy of Miranda warnings is question of law reviewed de nova); Commonwealth v. Miller, 366 Mass. 387, 389 (1974) (independently reviewing judge’s conclusion of law). Noting the broad embrace of the doctrine by Federal and State courts nationwide, and recognizing the compelling public policy interests behind its enactment, we adopt the doctrine in
1. Adopting the doctrine of “forfeiture by wrongdoing.” The United States Supreme Court first applied the doctrine of “forfeiture” or “waiver” by wrongdoing in Reynolds v. United States, 98 U.S. 145, 158 (1878):
“The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. . . . [I]f [a defendant] voluntarily keeps the witnesses away, he cannot insist on his [Sixth Amendment] privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.”
The Supreme Court has recently affirmed the doctrine’s validity in Crawford v. Washington, supra at 62 (“the rule of forfeiture by wrongdoing [which we accept] extinguishes confrontation claims on essentially equitable grounds”). Beginning in the 1970’s, several United States Courts of Appeals followed the Reynolds lead and adopted the forfeiture doctrine. See, e.g., United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985), cert. denied, 475 U.S. 1124 (1986); United States v. Potamitis, 739 F.2d 784, 788 (2d Cir.), cert. denied sub nom. Argitakos v. United States, 469 U.S. 918, and cert. denied, 469 U.S. 934 (1984); Steele v. Taylor, 684 F.2d 1193, 1201 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); United States v. Thevis, 665 F.2d 616, 630 (5th Cir.), cert. denied sub nom. Evans v. United States, 456 U.S. 1008, cert. denied sub nom. Hood v. United States, 458 U.S. 1109, and cert. denied, 459 U.S. 825 (1982); United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied sub nom. Hofstad v.
In addition to the widespread support it enjoys, the forfeiture rule furthers important public and jurisprudential interests. “The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong . . . .” Reynolds v. United States, supra at 159. See Crawford v. Washington, supra at 62 (recognizing “forfeiture by wrongdoing” doctrine based
The forfeiture by wrongdoing doctrine is also consistent with Massachusetts law. We have already recognized that the right to cross-examine adverse witnesses under art. 12 is not absolute, see, e.g., Commonwealth v. Amirault, 424 Mass. 618, 633 (1997), and may be lost by misconduct. See, e.g., Commonwealth v. Flemmi, 360 Mass. 693, 694 (1971), quoting Illinois v. Allen, 397 U.S. 337, 342-343 (1970). Moreover, we have long recognized in other contexts the equitable principle, at the heart of the forfeiture by wrongdoing doctrine, that a party may not gain advantage from his own wrong. See, e.g., Phillips v. Chase, 203 Mass. 556, 565 (1909) (“The law will not allow a man to profit by his own wrongdoing”); Everett v. Henderson, 146 Mass. 89, 97 (1888), S.C., 150 Mass. 411 (1890) (noting “numerous cases in which it is held that one shall not be permitted to take advantage of his own wrong”). Also instructive, we have applied the “curative admissibility doctrine,” where a party is estopped from objecting to hearsay admitted to rebut incompetent evidence where the original evidence (offered by the objecting party) created significant prejudice. Commonwealth v. Ruffen, 399 Mass. 811, 813-814 (1987).
Given the overwhelming precedential and policy support for its adoption, we recognize the “forfeiture by wrongdoing” doctrine in the Commonwealth.
2. Scope of the doctrine, a. Edwards’s conduct. The doctrine of forfeiture by wrongdoing, based on equitable considerations, contemplates some wrongful act on the part of the defendant. See Reynolds v. United States, supra at 159 (because rule is based on “maxim that no one shall be permitted to take advantage of his own wrong ... if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony”). The Commonwealth argues that “collusion” with a witness to procure the witness’s unavailability constitutes a wrongdoing. In particular, the Commonwealth claims that a joint plan between a defendant and a
Without question, the doctrine should apply in cases where a defendant murders,
The doctrine has been applied to a wider range of actions by defendants that have contributed to witness unavailability, including those that, while not expressly labeled as such, may be considered “collusion.” For example, the Supreme Court, in
“The broad scope of conduct that may give rise to a forfeiture is consistent with the philosophy underlying the forfeiture rule: . . . ‘[T]he disclosure of relevant information at a public trial is a paramount interest, and any significant interference with that interest, other than by exercising a legal right to object at the trial itself, is a wrongful act.’ . . . Thus, it is the fact that a defendant’s conduct interferes with the interest in having witnesses testify at a public trial that makes the defendant’s conduct wrongful.”
Id. at 356, quoting Steele v. Taylor, 684 F.2d 1193, 1201 (6th Cir. 1982).
As quoted above, the United States Court of Appeals for the Sixth Circuit, in Steele v. Taylor, supra, defined a “wrongful act” as “any significant interference” with the interest in “the disclosure of relevant information at a public trial.” In that case, the witness was living with one of the coconspirators, had a child with him, and her lawyer was paid by him. The court determined that the coconspirator had exerted “influence and control” over the witness and “induce[dj her not to testify.” Id. at 1198, 1203. Finally, in People v. Pappalardo, 152 Misc. 2d 364, 369 (N.Y. 1991), the court found a waiver based on a “joint plan” to prevent
Other courts, while not yet applying the forfeiture doctrine to cases involving a defendant’s collusion with a witness to plan the witness’s unavailability, have articulated very broad tests for the doctrine’s application that, by their terms, would appear to include such collusion. For example, the United States Court of Appeals for the Second Circuit required the prosecution to show “(1) the defendant . . . was involved in, or responsible for, procuring the unavailability of the declarant ‘through knowledge, complicity, planning or in any other way,’ . . . ; and (2) the defendant. . . acted with the intent of procuring the declarant’s unavailability as an actual or potential witness.” United States v. Dhinsa, 243 F.3d 635, 653-654 (2d Cir.), cert. denied, 534 U.S. 897 (2001), quoting United States v. Miller, 116 F.3d 641, 668 (2d Cir. 1997), cert. denied, 524 U.S. 905 (1998). See People v. Pappalardo, supra. See also United States v. Cherry, 217 F.3d 811, 820 (10th Cir. 2000) (defendant waives confrontation and hearsay objections where, in part, “he or she participated directly in planning or procuring the declarant’s unavailability through wrongdoing”).
The public policy interests underlying the doctrine are best served by applying the doctrine to cases in which a defendant colludes with a witness to procure that witness’s unavailability. A defendant should no more be able to benefit from wrongful collusion with a witness than from threats or worse. Moreover, direct evidence of witness intimidation is rare. What may appear as an “agreement” by a witness not to testify, or a witness’s independent “decision” to avoid testifying, in fact may be a product of coercion, pressure, or threats. Thus, evidence that a witness agreed to a plan to ensure the witness’s unavailability
We hold that 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. A defendant’s involvement in procuring a witness’s unavailability need not consist of a criminal act, and may include a defendant’s collusion with a witness to ensure that the witness will not be heard at trial.
While this test should be sufficient in most instances to resolve the issue whether a defendant procured the unavailability of a witness, the facts of the instant cases, complicated as they are, convince us of the need to provide some additional guidance regarding the scope of the forfeiture by wrongdoing doctrine, particularly as it applies to collusion. A finding that a defendant somehow influenced a witness’s decision not to testify
Furthermore, that a defendant and a witness are ultimately unable to carry out their plan to engineer the witness’s unavailability through the precise method intended does not necessarily preclude a finding of forfeiture in collusion cases. Where a defendant’s goal in colluding with a witness is to deprive the Commonwealth of valuable testimony, the defendant may be no less successful where the desired result is achieved by means other than those originally contemplated (such as a witness’s refusal to testify). As noted above, there must be some causal connection between the defendant’s actions and the witness’s ultimate unavailability. The method by which the witness becomes unavailable must, at the very least, be a logical outgrowth or foreseeable result of the collusion. Thus, where the defendant has had a meaningful impact on the witness’s unavailability, the defendant may have forfeited confrontation and hearsay objections to the witness’s out-of-court statements, even where the witness modified the initial strategy to procure the witness’s silence.
Finally, a defendant’s intentional procurement of a witness’s
Edwards points to the case of United States v. Scott, 284 F.3d 758, 763-764 (7th Cir.), cert. denied, 537 U.S. 1031 (2002), in support of his argument that a defendant must commit a wrongdoing independent of the procurement of the witness’s unavailability to fall within the doctrine’s reach. However, the Scott court, in requiring an independent wrongdoing, was interpreting Fed. R. Evid. 804 (b) (6), which expressly requires that a party have “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant” (emphasis added). United States v. Scott, 284 F3d at 762. Even if the Scott court is correct in its interpretation of the Federal rule, a matter we need not visit, we are not bound by that interpretation. The forfeiture by wrongdoing doctrine, as we have articulated it above, contains no independent “wrongdoing” requirement.
b. Standard of proof. We now determine the standard required to prove forfeiture under the doctrine articulated above. We, like virtually all of the jurisdictions that have considered the issue, hold that the prosecution must prove by a preponderance of the evidence that the defendant procured the witness’s unavailability. A majority of United States Courts of Appeals have applied the preponderance standard,
The defendants cite the cases of United States v. Smith, 792
c. Evidentiary hearing. Jurisdictions differ on whether a judge must hold an evidentiary hearing prior to making a determination that a defendant has forfeited the right to object to the introduction of the out-of-court statements of an unavailable
3. Application of doctrine to Edwards. The Commonwealth has alleged conduct (collusion) that, as a matter of law, could be sufficient to support a finding of forfeiture by wrongdoing against Edwards. We now consider whether, applying the facts of this case to the forfeiture by wrongdoing doctrine as we have articulated it above, the judge was correct in concluding that Edwards, by virtue of his alleged collusion with Crockett, did not forfeit his right to object to the introduction for substantive purposes of the grand jury testimony. A judge’s findings of fact are generally accorded deference, and we review them for clear error. See, e.g., Commonwealth v. Vuthy Seng, 436 Mass. 537, 543 (2002), citing Commonwealth v. Mello, 420 Mass. 375, 381 n.8 (1995) (on review of motion to suppress, “we do not disturb the judge’s findings of fact unless they are clearly erroneous”). In the instant case, however, the judge and the parties were operating without any guidance regarding whether or to what extent this court would adopt the forfeiture by wrongdoing doctrine. It is not surprising, therefore, that the judge’s findings provide an insufficient basis for appellate review of his denial of the Commonwealth’s motion to admit Crockett’s testimony
Given these deficiencies in the record, we can neither accept nor reject the judge’s findings of fact with respect to Edwards. We cannot determine whether those findings are supported by the record or whether, instead, a determination of forfeiture by wrongdoing is required against Edwards. Now that we have adopted the forfeiture by wrongdoing doctrine and clarified its scope, including the procedural requirement that a ruling on forfeiture be preceded by an evidentiary hearing, this case must be remanded to the Superior Court for an evidentiary hearing on the issue whether defendant Edwards, by virtue of his alleged collusion with Crockett, forfeited his right to object to the substantive admission of Crockett’s grand jury testimony on both confrontation and hearsay grounds.
Regardless whether the forfeiture by wrongdoing doctrine would apply in this jurisdiction to coconspirators to the procurement of a witness’s unavailability, as in United States v. Thompson, supra, and United States v. Cherry, supra, the doctrine cannot be applied to Davis and Brown in the circumstances of this case. Because the Commonwealth has not even alleged facts (before the motion judge or this court) sufficient to support a conclusion of forfeiture by Davis or Brown, we need not remand the case for further proceedings on that issue.
We note at the outset that the Commonwealth did not charge any of the defendants with conspiracy and that the only charges based on a joint venture theory, assault and battery by means of a dangerous weapon, were dismissed against Davis and Brown. The Commonwealth has alleged no evidence of any “conspiracy” or “joint effort” among the defendants to secure Crockett’s unavailability. Edwards’s alleged procurement of Crockett’s unavailability did not begin, according to the Commonwealth, until after Edwards was in custody, and the Commonwealth does not claim any contact between Edwards and the other codefendants after this point (other than pointing to a vague reference in one of Edwards’s recorded telephone calls to a letter [“kite”] sent to Davis [“E”]).
The evidence presented by the Commonwealth with respect
Conclusion. “[This] question is one of broad public policy,
A judgment shall enter in the county court vacating the order of the judge denying the Commonwealth’s motion to admit the grand jury testimony of Jeremy Crockett against Jermaine Edwards, affirming the order in respect to Eric Davis and Tyrone Brown, and remanding the matter to the Superior Court for proceedings consistent with this opinion.
So ordered.
We acknowledge the amicus briefs of the Committee for Public Counsel Services and the district attorneys for the Berkshire, Bristol, Cape and Islands, Eastern (Essex), Hampden, Middle, Norfolk, Northern, Northwestern, and Plymouth Districts.
Some jurisdictions have used the term “waiver” or the phrase “waiver by misconduct” to describe essentially the same doctrine. See, e.g., United States v. Thompson, 286 F.3d 950, 963-964 (7th Cir. 2002), cert. denied, 537 U.S. 1134 (2003); United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976), cert. denied sub nom. Hofstad v. United States, 431 U.S. 914 (1977); State v. Valencia, 186 Ariz. 493, 498 (Ct. App. 1996). The parties here have utilized “waiver” and “forfeiture,” sometimes interchangeably, when describing the doctrine. We use the phrase “forfeiture by wrongdoing” to refer to the doctrine, and we explain our preference for that phrase below. See note 16, infra.
The charges of assault and battery by means of a dangerous weapon against Davis and Brown were dismissed.
The Sixth Amendment to the United States Constitution provides, in part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” Sixth Amendment protection is applicable to State prosecutions. See Crawford v. Washington, 541 U.S. 36, 42 (2004), citing Pointer v. Texas, 380 U.S. 400, 406 (1965).
This motion was filed in contemplation that the evidence of Edwards’s alleged efforts to procure Crockett’s unavailability would be offered as consciousness of guilt evidence.
We have reviewed recordings of thirteen telephone calls made by Edwards while incarcerated at the Suffolk County house of correction at South Bay. Because there were restrictions on the number of people Edwards could
The Commonwealth, in its proffer, also referred to specific portions of Crockett’s grand jury testimony and Crockett’s visit with Edwards while the latter was incarcerated. The record includes relevant portions of the grand jury testimony as well as documentary evidence of the visit. The record does not indicate whether this documentary evidence was submitted to the judge.
Although the judge denied the Commonwealth’s motion to admit Crockett’s grand jury testimony on the theory that the defendants procured the witness’s unavailability, the judge did not rule on whether that testimony might be introduced under some other exception to the hearsay rule, leaving that determination for the later stages of trial. Likewise, he did not consider Brown’s motion to sever.
While the Commonwealth argued in its supplemental motion to admit Crockett’s grand jury testimony that it fell within exceptions to the hearsay rule, the judge declined to rule on that issue “in advance,” and the Commonwealth does not assert before us that the testimony is admissible under any hearsay exception. Therefore, we do not treat the issue of other potentially applicable hearsay exceptions.
Edwards posited at oral argument that the issue whether to adopt the doctrine of forfeiture by wrongdoing is not properly before this court on the facts of this case. We disagree. The motion judge based his rulings on some version of the doctrine, and the facts alleged by the Commonwealth, if proved by a preponderance of the evidence, are sufficient to support a finding of forfeiture by wrongdoing as we construe that doctrine. See infra. Thus review of this case warrants our consideration of this important legal question.
Rule 804 (b) (6) of the Federal Rules of Evidence reads:
“Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . 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.”
See State v. Valencia, 186 Ariz. 493, 498 (Ct. App. 1996); People vs. Moore, No. 01CA 1760 (Colo. Ct. App. July 29, 2004); State v. Henry, 16 Conn. App. 515, 535 (2003); Devonshire v. United States, 691 A.2d 165, 168-169 (D.C.), cert. denied sub nom. Vines v. United States, 520 U.S. 1247 (1997); State v. Hallum, 606 N.W.2d 351, 356-359 (Iowa 2000); State v. Meeks, 277 Kan. 609, 614-615 (2004); State v. Fields, 679 N.W.2d 341, 347 (Minn. 2004); State v. Sheppard, 197 N.J. Super. 411, 436 (1984); State v. Alvarez-Lopez, 98 P.3d 699 (N.M. 2004), cert. denied, 543 U.S. 1177 (2005); People v. Geraci, 85 N.Y.2d 359, 366 (1995); State vs. Boyes, Nos. 2003-CA-0050, 2003-CA-0051 (Ohio Ct. App. June 21, 2004); Commonwealth v. Paddy, 569 Pa. 47, 73 (2002); State vs. Hinson, No. M2000-02762-CCA-R3-CD (Tenn. Crim. App. Sept. 27, 2002); Gonzalez v. State, 155 S.W.3d 603, 610-611 (Tex. Crim. App. 2004); Commonwealth vs. Salaam, No. CR03-4625 (Va. Cir. Ct. Aug. 25, 2004).
See Wildermuth v. State, 310 Md. 496, 514 n.10 (1987); State v. Warford, 223 Neb. 368, 375 (1986); State v. Page, 197 Or. App. 72, 80 (2005); State v. Carroll, 147 Vt. 108, 113 (1986); State v. Hale, 277 Wis. 2d 593, 622 (2005) (Prosser, J., concurring).
Most notably, States disagree as to what constitutes “wrongdoing” or “misconduct” sufficient to trigger the doctrine’s application, and vary as to whether an evidentiary hearing is necessary prior to a finding of forfeiture. We discuss both issues below.
We adopt the doctrine as one involving “forfeiture” rather than “waiver” because the phrase “forfeiture by wrongdoing” better reflects the legal principles that underpin the doctrine. See Steele v. Taylor, 684 F.2d 1193, 1201 n.8 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); State v. Hallum, 606 N.W.2d 351, 355 (Iowa 2000) (“the loss of a defendant’s right to object is based on a forfeiture theory because the loss rests on the defendant’s misconduct, not on the defendant’s intentional relinquishment of a known right[, i.e., waiver]”); People v. Geraci, 85 N.Y.2d 359, 366 (1995). See also Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring in part) (recognizing distinction between “waiver” and “forfeiture”).
See, e.g., United States v. Dhinsa, 243 F.3d 635, 650-651 (2d Cir.), cert. denied, 534 U.S. 897 (2001); United States v. White, 116 F.3d 903, 911 (D.C. Cir.), cert. denied, 522 U.S. 960 (1997); United States v. Mastrangelo, 693 F.2d 269, 271 (2d Cir. 1982); United States v. Thevis, 665 F.2d 616, 630 (5th Cir.), cert. denied sub nom. Evans v. United States, 456 U.S. 1008, cert. denied sub nom. Hood v. United States, 458 U.S. 1109, and cert. denied, 459 U.S. 825 (1982); Devonshire v. United States, 691 A.2d 165, 166 (D.C. 1997).
See, e.g., United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); United States v. Potamitis, 739 F.2d 784, 788 (2d Cir.), cert. denied sub nom. Argitakos v. United States, 469 U.S. 918, and cert. denied, 469 U.S. 934 (1984); United States v. Balano, 618 F.2d 624, 628-629 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980); United States v. Carlson, 547 F.2d 1346, 1353 (8th Cir. 1976).
See United States v. Carlson, supra at 1358; People v. Geraci, supra at 370.
General Laws c. 268, § 13B, imposes criminal punishment on anyone who, “directly or indirectly, willfully endeavors by means of a gift, offer or promise of anything of value or by misrepresentation, intimidation, force or express or implied threats of force to influence, impede, obstruct, delay or otherwise interfere with any witness.”
There may be some statements so lacking in reliability that their admission would raise due process concerns. See United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) (although finding no due process violation in case at hand, recognizing admission of facially unreliable hearsay may raise due process concerns in some cases); Devonshire v. United States, 691 A.2d 165, 169 n.6 (D.C. 1997) (same); State v. Hallum, supra at 359 n.6 (after finding evidence admissible under forfeiture doctrine, conducting due process analysis and finding no violation even though due process not raised by defendant). We do not address this issue today. The grand jury testimony here, taken under oath, presents no due process problem.
Most jurisdictions that have adopted the doctrine have held that a defendant forfeits objections under both the rule against hearsay and the confrontation clause. Compare, e.g., United States v. Carlson, 547 F.2d 1346, 1353-1355, 1359-1360 (8th Cir. 1976) (defendant waived confrontation rights only), with United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir. 1982) (defendant waived confrontation and hearsay objections by his wrongdoing). “Because both the hearsay rule and the confrontation clause are designed to protect against the dangers of using out-of-court declarations as proof, 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.” United States v. White, 116 F.3d 903, 912 (D.C. Cir. 1997) (noting more common trend is loss of confrontation rights and hearsay objections).
We do not suggest that merely informing a witness of the right to remain silent, guaranteed by the Fifth Amendment to the United States Constitution, will be sufficient to constitute forfeiture. Providing such publicly available information to a witness does not constitute “pressure” or “persuasion.”
See, e.g., United States v. Scott, 284 F.3d 758, 762 (7th Cir.), cert. denied, 537 U.S. 1031 (2002); United States v. Zlatogur, 271 F.3d 1025, 1028 (11th Cir. 2001), cert. denied, 535 U.S. 946 (2002); United States v. Cherry, 217
See, e.g., State v. Valencia, 186 Ariz. 493, 498 (Ct. App. 1996); Devonshire v. United States, supra at 169; State v. Hallum, supra at 355-356; State v. Meeks, 277 Kan. 609, 615 (2004); State v. Sheppard, 197 N.J. Super. 411, 441 (1984); State v. Alvarez-Lopez, 98 P.3d 699, 704 (N.M. 2004); State vs. Boyes, Nos. 2003-CA-0050, 2003-CA-0051 (Ohio Ct. App. June 21, 2004).
Other courts have recognized this functional equivalency. See, e.g., United States v. White, supra at 912; United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996); Steele v. Taylor, supra at 1203.
Edwards argues that the clear and convincing standard is more appropriate because the United States Supreme Court has applied that standard in the past to a question of admissibility involving constitutional requirements concerning the reliability of evidence. See United States v. Wade, 388 U.S. 218, 240 (1967) (circumstances surrounding lineup identification). We believe the better analogy is to the admission of coconspirator and joint venturer statements.
Compare United States v. Dhinsa, 243 F.3d 635, 653 (2d Cir. 2001) (requiring evidentiary hearing outside presence of jury); United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) (same); and State v. Henry, 76 Conn. App. 515, 535 (2003) (same), with United States v. Emery, supra at 926 (no need for preliminary hearing outside presence of jury; court may admit evidence to jury contingent on sufficient proof); and Devonshire v. United States, supra at 169 (finding no error where judge ruled on admissibility based on government’s proffer, but declining to hold that proffer alone is sufficient).
Although the judge asked the Commonwealth if it wished to present evidence at the hearing, and none of the parties here argues that an evidentiary hearing should have been conducted, the law in the Commonwealth regarding forfeiture by wrongdoing had not been elucidated at that time. The parties, like the judge, were operating without the guidance provided by today’s ruling.
In choosing not to listen to the recordings, the judge noted, “If I think it’s going to make a difference as to precisely what was said, then I will come back and ask to hear [them].”
The Commonwealth asks, in the alternative, that we order admission of the grand jury testimony through an expansion of our decisions in Commonwealth v. Daye, 393 Mass. 55, 75 (1984) (prior inconsistent statement of witness admissible as probative if made under oath before grand jury, witness can be effectively cross-examined, statement not coerced or merely confirma-