State v. SupanchickState v. Supanchick
I
The state charged defendant with aggravated murder for killing his wife. The evidence showed that defendant and his wife were estranged and that, shortly before her death, his wife had obtained a restraining order against defendant based on allegations that defendant had physically and emotionally abused her.2 One week after the trial court issued the restraining order, defendant filed for divorce.
At 11:00 p.m. one night, defendant took a loaded shotgun, duct tape, and a knife to his wife‘s house. He opened the door and went up to her bedroom, where she was reading a book in bed. He walked in carrying the shotgun, told her that “we‘re going to talk about this[, a]nd then [he] put the tape on her mouth so she wouldn‘t scream and *** taped her arms.” When asked whether he had pointed the shotgun at her, defendant replied, “Didn‘t need to.”
As defendant later explained, his plan was to “go through the door real quick [and] subdue her to the point where *** she‘s not a threat” to call 9-1-1 and report his violation of the restraining order.3 Defendant believed that, if he had a chance to talk with his wife before she could call 9-1-1, he would be able to persuade her, relatively quickly, to accept to his offer. Going in, defendant believed that the whole operation could be accomplished in “[a]n hour, tops.”
Things did not go according to plan. His wife would not agree to give defendant custody of their daughter, nor would she agree to leave the state. The discussion that defendant had anticipated would be accomplished quickly turned into a four-hour “talk.” As defendant explained, “we started talking way too much.” He still believed, however,
“She wasn‘t gonna—she wasn‘t gonna leave, but we were making headway as far as her saying, Yeah, a lot of stuff [she was] doing isn‘t fair, and you—you know, [she] do[es] need to give [me my] money [back]. [She] shouldn‘t be keeping this money [that, in defendant‘s view, his wife had wrongfully taken from him].”
One issue that arose was how, once defendant knew that his wife would not agree to all his terms, he could keep her from reporting that he had violated the restraining order. Defendant explained that he thought that they would be able to find a middle ground; he would leave, she would “just *** drop it,” and “she will find something that makes it—makes it a bonus to her, you know.” When asked later if he would have let his wife walk out of the house if she had asked to do so, defendant answered, “No, because we hadn‘t reached a—a— *** Not before there was some—not before there was a hard copy agreement ***.”
After defendant had been at his wife‘s house for several hours, his mother called him on his wife‘s cell phone, but he did not answer. He also saw his sister‘s husband outside the house, but he did not go out to talk to him. Defendant explained that he “wasn‘t there to talk to them. I was—we [defendant and his wife] were having a good conversation.” He believed that he was “getting through to [his wife] that she was really not helping [their daughter] right now.” Then, defendant heard “heavy” knocking and people announcing that they were police officers. They asked his wife to come to the door, but she shouted, “I can‘t. I can‘t come to the door.” At that point, defendant heard “the noise, this noise.” As the officers kicked open the door of his wife‘s house, defendant picked up the shotgun, put a round in the chamber, and shot his wife.
When the officers spoke with defendant afterwards, they asked him two separate but related questions. The first question was why he had not let his wife leave once the officers got there. The second was why he had shot her. In answering the first question, defendant explained, “[b]ecause there had to be a way, a better option than [letting
When asked why he shot his wife, defendant initially either did not or could not accept the possibility that he had shot her. Later, he acknowledged that, because no one else was in the house, he must have killed her. Defendant then told the officers that, when he heard “this noise,” he “did a failure drill.” As defendant explained, a failure drill is appropriate when you have “no chance of the—whatever, you know, what—your target is coming at you.” He added that “[i]t‘s the most successful way of stopping whatever‘s coming at you.” Having explained that a failure drill is intended to stop the “target *** coming at you,” defendant could not explain why he shot his wife rather than the officers coming through the door.
In ruling on the admissibility of statements that defendant‘s wife had made in applying for a restraining order and also notes that she had made for that purpose, the trial court explained that
“I think that the evidence so far suggests by a preponderance that that was a purpose. *** I think that‘s very confusing as you read—as you read the transcript and listen to the defendant‘s confession. *** But I am satisfied that at least by a preponderance that was a reason for the—for the homicide and I think that that satisfies the requirement under [OEC] 804(3)(g). I don‘t think that that rule requires that it be the primary purpose. I think that it has to be a purpose, and I think that in all probability it is.”
The court also reasoned that, although
Having concluded that the wife‘s statements were admissible under
II
The issues on which defendant focuses on review all arise out of the trial court‘s ruling admitting his wife‘s hearsay statements. Defendant argues that the evidence was insufficient to establish the mental state necessary to invoke
A
Defendant‘s sufficiency argument may turn on one of two propositions. Defendant may be arguing that the evidence is insufficient to support the finding that the trial court actually made (that a purpose in killing his wife was to eliminate her as a witness). Alternatively, defendant‘s argument may turn on the proposition that the evidence does not support the finding that, in his view, the trial court should have made. Specifically, his argument appears to assume that
1
For the wife‘s hearsay statements to be admissible under
As the trial court implicitly recognized, the evidence permitted a finding that defendant had more than one purpose in killing his wife. For example, the evidence permitted a finding that defendant killed his wife to prevent her from retaining custody of their daughter; that is, he believed that, while he had been away in the military, his wife had neglected their daughter and endangered her safety. His wife would not agree to give up custody of their daughter, and the trial court could have found that defendant killed his wife to ensure that their daughter would not remain in her care.
There was also evidence to support the trial court‘s finding that one purpose in killing his wife was to make her unavailable as a witness. When the officers spoke with defendant shortly after he killed his wife, he told them that, when he first entered his wife‘s home, he had taken elaborate steps to prevent her from calling 9-1-1 and reporting that he was violating the restraining order. He had confronted her with a shotgun, bound her hands, and put tape over her mouth. Moreover, he believed that he could persuade his wife, in return for giving her money, to recant the allegations against him, give him custody of their daughter, and leave the state.
Defendant told the officers that, when it became clear that his wife would not agree to all the terms of his offer, he still thought that they could reach a compromise
Even after the police arrived and were asking defendant to let his wife go, defendant explained that he continued to think that there had to be a better option than letting his wife walk out of the house. To his mind, if he let her walk out, “I‘m gonna go to jail for whatever, for being—violating parole [sic] and having a gun there.” As he explained, there had to be a “[b]etter way for my daughter to be safe and [for me] not [to] go to jail.” One constant theme that ran through defendant‘s confession was his concern that, without an agreement, his wife would report his violation of the restraining order, he would go to jail as a result, and his daughter would not be safe. Given that evidence, the trial court permissibly found that one reason why defendant killed his wife was to prevent her from reporting what he had done.
To be sure, it would not have taken a great deal of reflection for defendant to realize that the consequences of killing his wife were far graver than the consequences of violating the restraining order. But defendant acted in a split second as the officers kicked open the door to his wife‘s home, and the trial court reasonably could have found that the forces that drive a person‘s actions are not always the most rational ones. Moreover, as the trial court implicitly found, eliminating his wife as a witness was not defendant‘s sole purpose in killing her, and we cannot say that the evidence does not support the trial court‘s factual finding that it was one reason for shooting her. Put simply, there is evidence in the record to support the trial court‘s factual finding that one reason defendant killed his wife was to eliminate her as a witness. See Cunningham, 337 Or at 538-39 (stating the
2
As noted, defendant‘s sufficiency argument may rest alternatively on a series of unexplained assumptions. His argument appears to assume that, for his wife‘s statements to be admissible under
Defendant‘s argument assumes initially that
Were there any doubt about the matter, the context resolves it. The legislature enacted
Not only did the Court define “witness” broadly in Crawford, but it also recognized that forfeiture by wrongdoing is one of a limited set of exceptions to the Sixth Amendment confrontation right. See id. at 62 (explaining that “the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds“). As noted, the Oregon legislature enacted
In this case, the trial court could have found that defendant killed his wife to keep her from reporting his violation of the restraining order to the officers—i.e., to keep her from being a “witness” as Crawford used that term. Moreover, defendant stated that, if he had let his wife walk out when the police arrived, he faced the prospect that he would go to prison and his wife would retain custody of their daughter. Given that statement, the trial court reasonably could have found that defendant killed his wife to keep her from testifying in a future contempt proceeding for violating the restraining order and in the pending divorce proceeding regarding custody.
Defendant‘s sufficiency argument also rests on the proposition that the trial court had to find that he killed his wife as part of a “plan” or “design” to make her unavailable
Finally, defendant suggests that his wife‘s statements were admissible under
The Court was careful to explain in Giles that forfeiture by wrongdoing applies in domestic violence cases because “[a]cts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.” 554 US at 377. The Court added:
“Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine.”
Id. Acts of domestic violence that culminate in murder can reflect a complex of motives; limiting forfeiture by wrongdoing to those instances in which the defendant‘s primary motive or purpose was to make the declarant unavailable would undercut the majority‘s explanation of the ways in which the forfeiture doctrine will apply in domestic violence cases. It also would negate a premise of the concurring opinion in which two justices whose votes were necessary to form a majority in Giles joined. See id. at 380 (Souter, J., concurring in part) (recognizing the complex of motives that can give rise to domestic violence that results in murder and that accordingly can lead to the application of the doctrine of forfeiture by wrongdoing).10
Defendant raises a different reason why, in his view, his wife‘s hearsay statements were not admissible under
Not only does the text of
Finally, the legislative history of
Defendant notes, however, that legislators referred to the proposed rule as the “common-law” rule of forfeiture. Defendant reasons that, because the common law admitted only reliable evidence under the forfeiture exception, the mention of the “common law” imported a reliability inquiry into
Under
In this case, the trial court ruled that admitting the wife‘s hearsay statements posed no constitutional problem, apparently on the strength of Crawford‘s recognition that forfeiture by wrongdoing is an exception to the federal confrontation right. The Court of Appeals upheld that ruling on an additional ground. Noting that the origins of the doctrine of forfeiture by wrongdoing date to the seventeenth century, the court concluded that that doctrine was a “firmly rooted” exception by virtue of that history. Supanchick, 245 Or App at 660-61. Accordingly, admitting statements under
Defendant argues that forfeiture by wrongdoing is not a “firmly rooted hearsay exception,” as Campbell used that phrase; he reasons that it is not a hearsay exception at
The state responds that deciding whether forfeiture by wrongdoing satisfies Campbell is unnecessary because forfeiture is an equitable principle necessary to protect the integrity of judicial proceedings. Precisely for that reason, the state argues, forfeiture defeats a defendant‘s right to challenge unconfronted evidence under
A
As a starting point, we agree with the parties that forfeiture by wrongdoing has roots in equity, not reliability. See Crawford, 541 US at 62 (“[t]he rule of forfeiture by wrongdoing *** extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability“). Accordingly, the rule differs significantly from other hearsay exceptions that admit categories of hearsay evidence because they are considered inherently reliable.14 For that reason, forfeiture by wrongdoing is not a “firmly-rooted hearsay exception,” as the court used that phrase in Campbell.
1
Forfeiture by wrongdoing arose from evidentiary procedures in seventeenth-century English felony cases.. Those procedures developed out of the so-called “Marian statutes,” which required magistrates to interview witnesses in felony cases before deciding whether to commit a suspect to jail or to release the suspect on bail. 1 & 2 Phil & M, c 13, § 1 (1554-55); 2 & 3 Phil & M, c 10 (1556). Among other things, the Marian statutes required that justices of the peace—and later coroners—make available to the court a record of their hearings. Id. It appears that witnesses at Marian proceedings were required to testify under oath. See Thomas Y. Davies, Selective Originalism, 13 Lewis & Clark L Rev 605, 619 (2009).15 Moreover, suspects probably would have had an opportunity to cross-examine witnesses at committal hearings, but that opportunity was less likely to have been available at coroners’ inquests. Robert Kry, Forfeiture and Cross-Examination, 13 Lewis & Clark L Rev 577, 583-84 (2009); see Robert Kry, Confrontation under the Marian Statutes, 72 Brook L Rev 493, 511-33 (2007) (inferring from the records of English Marian examinations and other sources that, by 1789, prisoners in committal proceedings would have had an opportunity to cross-examine witnesses).
To put a simple point on the history, the forfeiture doctrine originated as part of the Marian unavailability rule, similar to the rules for unavailability described in
In ruling on the admissibility of the witnesses’ statements, the judges in Lord Morley‘s Case did not mention whether Lord Morley had had an opportunity to confront the witnesses at the coroner‘s inquest. Not only is the decision silent on that point, but whether Lord Morley had had that opportunity appears to have been immaterial to whether the witnesses’ statements were admissible. If Lord Morley had been able to cross-examine the witnesses at the
That was the state of the forfeiture doctrine when it was first articulated in 1666. The Court, however, explained in Crawford and confirmed in Giles that the doctrine had taken on greater significance by 1791 when the Sixth Amendment was ratified.16 Not only was the forfeiture doctrine a way of proving unavailability, but it also had become an equitable bar to asserting a confrontation right.
That conclusion, which the Court drew from English and American common law, rests on two premises. First, the Court concluded in Crawford that, when the Sixth Amendment was ratified in 1791, both the English and the American courts recognized that, as a general principle, unconfronted ex parte statements were not admissible in criminal trials. 541 US at 45-46. By 1791, that rule also applied to Marian examinations: If a suspect had not had the opportunity to confront a witness during a Marian examination, that statement ordinarily would not be admissible. Id. at 47 (relying on English cases decided shortly before 1791). Second, the Court explained in Giles that the English courts nevertheless had admitted unconfronted statements taken
The Court‘s view of history in Crawford and Giles has been the subject of debate. Some commentators have reasoned that the Americans who ratified the Sixth Amendment in 1791 would have understood that any statement taken under oath during a Marian examination was admissible if the witness were unavailable because of death, inability to travel, or the procurement of the defendant. See Thomas Y. Davies, Fictional Originalism in Crawford, 71 Brook L Rev 105, 152 (2005).17 It follows from that view of the history that, in 1791, Marian examinations were generally admissible if the witness was unavailable for a recognized reason and that forfeiture by wrongdoing did not serve any purpose other than to prove unavailability.
Other commentators have started from the opposite premise. See Kry, 13 Lewis & Clark L Rev at 579. In their view, the Americans who ratified the Sixth Amendment in 1791 would have understood that Marian examinations were admissible in later criminal proceedings only if the defendant had had the opportunity to confront the witness. Id.18 It follows from that view of the history that the Sixth Amendment should permit the admission only of confronted Marian examinations and that forfeiture by wrongdoing should not be viewed as excusing the need for confrontation.
We need not weigh in on that debate to resolve the meaning of
2
In America, one aspect of the common law had become settled by 1857: Unconfronted statements taken during Marian examinations were not admissible in later criminal proceedings. State v. Campbell, 30 SCL (1 Rich) 124, 125 (1844) (coroner‘s inquest); State v. Hill, 20 SCL (2 Hill) 607, 610-11 (1835) (committal hearing); see State v. Houser, 26 Mo 431, 436-38 (1858) (affirming general rule and excluding the statement because the state had failed to prove that the witness was unavailable); cf. State v. McO‘Blennis, 24 Mo 402 (1857) (holding that confronted statements taken during a committal hearing were admissible when the witness had died before the criminal trial). For example, in Campbell and also in Hill, the witness had died between the time he or she had testified at the Marian examination and the defendant‘s trial.19 Campbell, 30 SCL at 124; Hill, 20 SCL at 607-08. Neither defendant had had the opportunity to cross-examine the witness at the Marian examination and, in each case, the court excluded the witness‘s statement for that reason. Campbell, 30 SCL at 125; Hill, 20 SCL at 610-11.
In Hill, Campbell, Houser, and McO‘Blennis, the defendants had not procured the witnesses’ absence from the later criminal trials. Accordingly, none of those cases had occasion to consider the doctrine of forfeiture by wrongdoing or decide whether the application of that doctrine would result in the admission of the witness‘s statements. However, two cases that bracketed the adoption of the Oregon Constitution identified the equitable principle underlying the forfeiture doctrine as a bar to asserting a confrontation claim; that is, they explained that a defendant who purposefully keeps a witness away from trial cannot object to the admission of the witness‘s statements on the ground that the defendant cannot confront the witness at trial.
In 1856, the Georgia Supreme Court explained that the doctrine of forfeiture by wrongdoing would lead to the admission of a witness‘s examination before the committing
Approximately 20 years later, the United States Supreme Court clarified what the Georgia Supreme Court had intimated in Williams. See Reynolds v. United States, 98 US 145, 25 L Ed 244 (1878). One of the questions in Reynolds was whether a witness‘s testimony from the defendant‘s earlier criminal trial could be admitted at a later trial for the same offense. The district court had found that the defendant had procured the witness‘s absence from the later trial, and the Court explained that the defendant‘s actions barred him from raising any objection on confrontation grounds. The Court reasoned:
“The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by [the accused‘s] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee 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. 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 defendant in Reynolds had challenged the means by which the government had proved the missing witness‘s former testimony,21 and the Court relied on a civil evidence treatise that explained when former testimony was admissible as an exception to the rule against hearsay. See id. at 161 (citing Francis Wharton, 1 A Commentary on the Law of Evidence in Civil Issues § 177 (1877)). The treatise noted that former testimony could be proved by persons who had heard the witness‘s testimony, and it explained that
“[t]he admission of such evidence is based on the fact that the party against whom the evidence is offered, having had the power to cross-examine on the former trial, and the parties and issue being the same, the second suit is virtually a continuation of the first.”
Wharton, 1 Evidence § 177 at 180. Citing section 177 of Wharton‘s treatise, the Court noted that the testimony had been given at the defendant‘s trial on the same offense, that it was substantially the same as that given in the earlier trial, and that defendant had been present and had had “full opportunity of cross-examination.” 98 US at 160-61. The Court concluded, “This brings the case clearly within the well-established rules. The cases are fully cited in 1 Whart. Evid., sect. 177.” Id. at 161.
3
With that background in mind, we turn to defendant‘s state constitutional argument. Defendant advances two separate arguments. His first argument is based on the common law. Defendant acknowledges that the common-law doctrine of forfeiture by wrongdoing excused the need for confrontation. He contends, however, that the common-law forfeiture doctrine applied only if the statements admitted under that doctrine had an independent guarantee of reliability, and he points to the fact that, at common law, statements taken during a Marian examination would have been taken under oath. In his view, the presence of an oath was evidence that, at common law, the doctrine of forfeiture by wrongdoing required an irreducible minimum guarantee of reliability before an ex parte statement could be admitted. He reasons that
Before turning to defendant‘s reliability argument, we note our agreement with the premise of his argument.
As we understand defendant‘s argument, it rests on the proposition that a defendant who gives up his or her
To be sure, this court held in Campbell that
The common-law context against which
We note, finally, that no direct evidence exists of what the people who framed the Oregon Constitution thought about the right to confrontation.
Having reached that conclusion, we recognize that other sources of law provide some assurance against the admission of unreliable evidence. As the trial court observed, rules of evidence, such as
We conclude that, when a defendant has intentionally made a witness unavailable to testify, the defendant loses the right to object that that evidence should not be admitted on state constitutional confrontation grounds. The defendant‘s act ensures that the witness‘s testimony can never be subject to “testing in the crucible of cross-examination.” Crawford, 541 US at 61. In other words, where a defendant acts wrongfully to make a witness unavailable, that defendant largely controls the very feature of the evidence to which he objects. The principle of forfeiture by wrongdoing, as its history shows, ensures that a defendant cannot manipulate proceedings in that way. It likewise establishes that, if a defendant attempts that kind of manipulation, he or she cannot evade its consequences.
IV
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” Crawford established, as a general rule, that testimonial hearsay is not admissible in a defendant‘s criminal trial unless the defendant either previously had or currently has the opportunity to confront the declarant. 541 US at 53-54. The only exceptions to that federal confrontation right are those “established at the time of the founding.” Id. at 54. One of those exceptions is the common-law doctrine of forfeiture by wrongdoing. For that doctrine to apply, the defendant must have engaged in wrongful conduct designed or intended to prevent the witness from testifying and, by such wrongful conduct, must have actually prevented the testimony. See Giles, 554 US at 361-62.
The state does not dispute that the hearsay statements that the trial court admitted are testimonial, nor does it contend that defendant had the ability to cross-examine his wife regarding some of those statements.23 We assume,
Defendant‘s argument is difficult to square with Crawford. The Court made clear in Crawford that the Sixth Amendment Confrontation Clause does not require a separate inquiry into reliability. As the Court explained, the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 US at 61. Moreover, the Court stated that, when forfeiture by wrongdoing applies, concerns regarding reliability are not a matter of constitutional concern: “[T]he 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.” Id. at 62 (emphasis added). Indeed, Justice Souter‘s concurrence in Giles recognized that it is “reasonable to place the risk of untruth in an unconfronted, out-of-court statement on a defendant who meant to preclude the testing that confrontation provides.” Giles, 554 US at 379. Given Crawford and Giles, we cannot accept defendant‘s argument that the Sixth Amendment requires a separate inquiry into reliability.
V
Defendant argues that, even if admitting his wife‘s statements under
The United States Supreme Court recently reaffirmed that some evidence is so unreliable that it violates the Due Process Clause. It reaches that level when it “‘is so extremely unfair that its admission violates fundamental conceptions of justice.‘” See Perry, 132 S Ct at 723 (quoting Dowling v. United States, 493 US 342, 352, 110 S Ct 668, 107 L Ed 2d 708 (1990)). Examples include the knowing use of false evidence or perjured testimony. Napue v. Illinois, 360 US 264, 269, 79 S Ct 1173, 3 L Ed 2d 1217 (1959) (false evidence); Mooney v. Holohan, 294 US 103, 112, 55 S Ct 340, 79 L Ed 791 (1935) (perjured testimony). They also include the use of evidence “tainted by police arrangement,” Perry, 132 S Ct at 724 (describing Manson v. Brathwaite, 432 US 98, 97 S Ct 2243, 53 L Ed 2d 140 (1977)).
Defendant does not argue that his deceased wife‘s statements come within any of the categories of evidence that the Court previously has recognized are so unreliable that their admission violates due process. Rather, defendant argues that the admission of his wife‘s statements violates due process because he “lacked one of his critical procedural mechanisms for challenging unreliable evidence“—namely, cross-examination. To the extent that defendant‘s inability to cross-examine his wife is the crux of his due process argument, it suffers from three problems. First, defendant can hardly complain that he cannot cross-examine his wife when he purposefully made her unavailable to testify. The second problem is related to the first; if defendant is correct, his interpretation of the Due Process Clause would negate the exception to the Sixth Amendment that the Court recognized in Crawford and reaffirmed in Giles. Third, defendant was always free to argue to the jury that it should discount his wife‘s statements because they were made in anticipation of litigation, even if he could not cross-examine her on that point. See Perry, 132 S Ct at 722 (explaining that the constitution “protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording
Beyond noting his inability to cross-examine his wife, defendant provides no reason to think that the statements his wife made in anticipation of litigation are so unreliable that their admission violates due process. See, e.g., Albrecht v. Horn, 485 F3d 103, 135 (3d Cir 2007) (holding that out-of-court statements to an attorney were sufficiently reliable in part because the client knew that the statements would have to be proved at trial). We conclude that, the trial court did not err in admitting, over defendant‘s statutory and constitutional objections, some of the statements that his wife made before her death.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Notes
The state argued at trial that the wife‘s hearsay statements were also admissible under“A statement offered against a party who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable.”
The court discussed that earlier line of English authority in Houser:
“It is true that there may be a few cases in which depositions, taken before coroners in England without any opportunity of cross-examination, have been used against the accused, where the witness subsequently died; but the authority of such cases is questioned, even in that country, by their ablest writers on common law—Starkie, Roscoe, Russell—and it is doubtful whether such testimony would now be received. At all events, such testimony has never been permitted in this country[.]”
The Court explained that the defendant had argued that, not only had the government failed to prove that he had procured the missing witness‘s absence but that a
“witness Patterson was allowed to read from a paper what purported to be statements made by [the missing witness] on a former trial. No proof was offered as to the genuineness of the paper or its origin, nor did the witness testify to its contents of his own knowledge.”
98 US at 152 (summarizing the defendant‘s argument).