donaldson: a reliable and clear-cut determination

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A Reliable and Clear-Cut Determination: Is a Separate Hearing Required to Decide

When Confrontation Forfeiture by Wrongdoing Applies?

TIM DONALDSON*

ver a century ago, the U.S. Supreme Court decided in Reynolds v. United States that a defendant may forfeit the right to confront an adverse witness if the defendants wrongful conduct kept the

witness from appearing at trial to testify.1 It more recently clarified that a defendants wrongful conduct must have been committed for the purpose of preventing testimony for forfeiture to apply.2 The Supreme Court has not, however, specified the procedure by which forfeiture determinations should be made3 and Circuit Courts of Appeals are split. The Second and Tenth Circuits have held that a trial court must hold an evidentiary hearing outside the presence of a jury to make forfeiture determinations.4 However, the First, Fourth, Eighth, and D.C. Circuits have ruled that a separate

* City attorney and municipal prosecutor, Walla Walla, Washington, 1996present;

municipal court judge pro tempore, College Place, Washington, 20062013; president,

Washington State Association of Municipal Attorneys, 2014present; admitted to bar

associations in Washington (1987), Oregon (1992), and Idaho (1994); J.D., magna cum laude,

Gonzaga University School of Law, 1987; B.A., Whitman College, 1984. The author thanks

Vern Davidson, Bob Fontenot, and Timothy Kaufman-Osborn. 1 98 U.S. 145, 158 (1878). 2 Giles v. California, 554 U.S. 353, 35968 (2008). 3 See Davis v. Washington, 547 U.S. 813, 833 (2006) (emphasis added) (commenting that the

Supreme Court took no position on the standards necessary to demonstrate forfeiture but that

hearsay evidence may be considered when resolving forfeiture issues if a hearing on

forfeiture is required . . . ). 4 United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982); United States v. Balano, 618

F.2d 624, 629 (10th Cir. 1979), overruled by Richardson v. United States, 468 U.S. 317, 32526

(1984), as recognized in United States v. Willis, 102 F.3d 1078, 1081 (10th Cir. 1996).

O


168 New England Law Review v. 49 | 167

hearing is not required if a judge can make the requisite findings regarding forfeiture from the evidence presented during the course of trial.5

The issue is ripe for resolution. The Supreme Court sank a raft of confrontation exceptions a decade ago in Crawford v. Washington.6 Prior to Crawford, an out-of-court statement made by a missing witness could be admitted in a criminal trial if the witness was unavailable, the statement fell within a firmly rooted hearsay exception, or there were particular indicia of its reliability.7 Crawford overruled longstanding precedent upon which many exceptions were basedit held with very limited deviation that testimonial statements made by an absent witness may only be used at trial if it is sufficiently established that the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.8 Thereafter, only two exceptions remained afloat. The Crawford majority indicated that it might still accept a dying declaration exception.9 It also accepted a rule of forfeiture by wrongdoing which extinguishe[d] confrontation claims on essentially equitable grounds. 10 That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.11 Recourse to the forfeiture-by-wrongdoing doctrine was less necessary prior to Crawfordit was easier to admit out-of-court statements under the confrontation test overruled by Crawford than it was to show that the absence of a witness was wrongfully procured

5 United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005); United States v. Emery, 186 F.3d

921, 926 (8th Cir. 1999); United States v. White, 116 F.3d 903, 91416 (D.C. Cir. 1997); United

States v. Houlihan, 92 F.3d 1271, 1281 n.5 (1st Cir. 1996). The Third Circuit has also indicated

in an unpublished opinion that it may not require a pretrial hearing for making forfeiture

determinations. United States v. Baskerville, 448 F. Appx. 243, 24950 (3d Cir. 2011). 6 See generally Crawford v. Washington, 541 U.S. 36, 6065 (2004) (abandoning a

confrontation test that had allowed prosecutorial use of reliable hearsay while discussing

and criticizing the capacity of that test to unpredictably create a variety of exceptions

dependent upon each individual judges subjective notions of reliability). 7 Ohio v. Roberts, 448 U.S. 56, 66 (1980), overruled by Crawford, 541 U.S. at 6069. 8 Crawford, 541 U.S. at 4266. 9 Id. at 56 n.6. See generally Tim Donaldson & J. Preston Frederickson, Dying to Testify?

Confrontation v. Declarations in Extremis, 22 REGENT U. L. REV. 35, 4658 (2009) (tracing the

history of the dying declaration rule). 10 Crawford, 541 U.S. at 62. 11 Davis v. Washington, 547 U.S. 813, 833 (2006) (citations omitted). See generally Tim

Donaldson, Combating Victim/Witness Intimidation in Family Violence Cases: A Response to Critics

of the Forfeiture by Wrongdoing Confrontation Exception Resurrected by the Supreme Court in

Crawford and Davis, 44 IDAHO L. REV. 643, 65365 (2008) (discussing acceptance and

development of forfeiture-by-wrongdoing doctrine as a confrontation exception).


2015 A Re l iab le and Cl ear -Cut Determinat ion 169

by a defendant.12 As numerous confrontation exceptions perished under the waves of Crawford, interest intensified on those that survived.

In the decade since Crawford was decided, most jurisdictions have adopted or reaffirmed a confrontation forfeiture principle, focusing primarily upon the substantive standards for forfeiture.13 For example, Giles v. California resolved a split over whether intent-to-silence a witness is a prerequisite to forfeiture.14 An equally important question, however, involves the method by which forfeiture determinations are made. For instance, should a judge hear forfeiture evidence outside the presence of a jury since resolution of the issue may involve consideration of additional wrongdoing beyond the crime for which a defendant is charged, or is the question so intertwined with the remainder of a case that it is a waste of judicial resources to require a separate hearing to decide? The disagreement among the Circuit Courts of Appeals upon the issue may eventually need to be resolved by the Supreme Court, and the renewed interest in and use of the forfeiture-by-wrongdoing doctrine will likely increase pressure to answer the question sooner rather than later.

This Article examines both sides of the split. It concludes that forfeiture determinations under the Giles standard should be made in an ancillary hearing outside the presence of a jury, except in those instances where other admissible evidence has already been introduced at trial which sufficiently establishes forfeiture.

I. Jurisdictions Which Require a Separate Evidentiary Hearing

One of the leading modern cases on confrontation forfeiture by wrongdoing is United States v. Mastrangelo.15 In Mastrangelo, the Second Circuit Court of Appeals held that a defendants involvement in the murder of a witness was misconduct that prevented the defendant from asserting his confrontation right against admission of testimony previously

12 Davis, 547 U.S. at 833. 13 See New Jersey v. Byrd, 967 A.2d 285, 29596 (N.J. 2009) (collecting cases). 14 See generally Tim Donaldson & Karen Olson, Classic Abusive Relationships and the

Inference of Witness Tampering in Family Violence Cases After Giles v. California, 36 LINCOLN L.

REV. 45, 4647 (2008). 15 693 F.2d 269 (2nd Cir. 1982). It is the case upon which the state of New York and other

jurisdictions base their procedures. E.g., Holtzman v. Hellenbrand, 460 N.Y.S.2d 591, 597 (N.Y.

App. 1983); Tennessee v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006) (citing United States v. Dhinsa,

243 F.3d 635, 65354 (2d Cir. 2001) (construing Mastrangelo requirements)). But see New York

v. Geraci, 649 N.E.2d 817, 82123 (N.Y. 1995) (adopting variations to Mastrangelo regarding

burden of proof). It is also a principal case cited as a basis for the codification of the

confrontation forfeiture rule by FED. R. EVID. 804(b)(6). H.R. DOC. NO. 10569 (U.S. Supreme

Court Order of Apr. 11, 1997, p. 22) (Advisory Committee note).



given by the deceased witness[a]ny other result would mock the very system of justice the confrontation clause was designed to protect.16 The Mastrangelo court concluded that a preliminary hearing must be conducted in accordance with evidentiary rules to determine whether a defendants misconduct waived confrontation:

Since Mastrangelos possible waiver of his sixth amendment rights is a preliminary question going to the admissibility of evidence, the hearing will be governed by Fed. R. Evid. 104(a), which states that the exclusionary rules, excepting privileges, do not apply to such proceedings. Thus, hearsay evidence, including [the witnesss] grand jury testimony, will be admissible, as will all other relevant evidence.17

The Second Circuit subsequently clarified that in addition to the hearing, a trial court should undertake a balancing of probative value against prejudicial effect in accordance with Fed. R. Evid. 403 in order to avoid the admission of facially unreliable hearsay.18 This additional requirement was adopted to alleviate due process concerns about a conviction being potentially based upon unreliable evidence when the forfeiture doctrine overrides protections afforded by the Confrontation Clause and hearsay rule.19 The court confirmed its requirements in United States v. Dhinsa, and further explained that a trial courts findings after utilizing such procedure will not be disturbed on appeal unless they are clearly erroneous.20

State courts that have addressed the issue have relied upon the Second Circuits analysis and rulings regarding the separate hearing requirement.21 The Massachusetts Supreme Judicial Court held in Commonwealth v. Edwards that both parties should be allowed to present evidence at such hearings, including live testimony, but noted that the hearings were not intended to become a mini-trial.22 In Vasquez v. Colorado, the Supreme

16 Mastrangelo, 693 F.2d at 273. 17 Id. 18 United States v. Thai, 29 F.3d 785, 814 (2d Cir. 1994); see also United States v. Thevis, 665

F.2d 616, 633 n.17 (5th Cir. 1982). But see United States v. White, 116 F.3d 903, 913 (D.C. Cir.

1997) (indicating that a defendant must move for exclusion under Federal Rule of Evidence

403 before error can be predicated on a trial courts failure to do so). 19 See United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992). 20 United States v. Dhinsa, 243 F.3d 635, 65354 (2d Cir. 2001); see also Reynolds v. United

States, 98 U.S. 145, 159 (1878) (holding that a forfeiture-by-wrongdoing determination will not

be disturbed on appeal unless the error is manifest). 21 Arizona v. Valencia, 924 P.2d 497, 502 (Ariz. Ct. App. 1996); Connecticut v. Henry, 820

A.2d 1076, 1087 (Conn. App. Ct. 2003); Kansas v. Gettings, 769 P.2d 25, 29 (Kan. 1989);

Tennessee v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006); see also Holtzman v. Hellenbrand, 460

N.Y.S.2d 591, 597 (N.Y. App. Div. 1983). 22 830 N.E.2d 158, 174 (Mass. 2005).



Court of Colorado succinctly explained the basic framework utilized with variations by jurisdictions that have adopted a hearing requirement:

We also join the jurisdictions that require an evidentiary hearing before a determination of forfeiture can be made. Outside the presence of the jury, the prosecution shall have the opportunity to prove by a preponderance of the evidence the elements of the doctrine of forfeiture by wrongdoing. Because the defendants possible forfeiture of his confrontation rights is a preliminary question going to the admissibility of evidence, the hearing will be governed by CRE 104(a), which states that the determination shall not be bound by the rules of evidence except those with respect to privileges. Thus hearsay evidence, including the unavailable witnesss out-of-court statements, will be admissible. The trial courts findings at the hearing will not be disturbed unless they are clearly erroneous.23

The New Jersey Supreme Court followed suit post-Giles by adopting a hearing requirement, further ruling that [t]he hearing must be conducted in the presence of counsel and defendant, and the defendant can only be excluded from the hearing for extraordinary reasons that must be articulated on the record.24

Prior to Mastrangelo, the Tenth Circuit established another line of authority for a hearing requirement in United States v. Balano.25 The court in Balano held that a defendants threats against the life of a witness waived any confrontation objection to admission of out-of-court statements made by the witness.26 Like the Mastrangelo court, it opined: [t]o permit the defendant to profit from such conduct would be contrary to public policy,

23 173 P.3d 1099, 1105 (Colo. 2007); cf. Illinois v. Stechly, 870 N.E.2d 333, 353 (Ill. 2007)

(remanding for a forfeiture hearing with directions about how to the conduct the hearing, but

without expressly requiring a hearing in all cases); Parker v. Kentucky, 291 S.W.3d 647, 66970

(Ky. Ct. App. 2009) (requiring an evidentiary hearing outside the jurys presence and

providing guidance about how it should be conducted); Smiley v. Maryland, 84 A.3d 190, 198-

201 (Md. Ct. Spec. App. 2014) (addressing details of a Maryland hearing requirement adopted

by statute); Utah v. Poole, 232 P.3d 519, 526, 52728 (Utah 2010) (noting that an evidentiary

hearing will be necessary in most cases and endorsing the model in which such hearings are

conducted outside the presence of a jury). 24 New Jersey v. Byrd, 967 A.2d 285, 303 (N.J. 2009); accord Grayton v. Ercole, No. 07CV

0485, 2009 WL 2876239, at *14 (E.D.N.Y. Sept. 8, 2009); Perkins v. Herbert, 537 F. Supp. 2d

481, 497501 (W.D.N.Y. 2008), revd on other grounds People v. Herbert, 596 F.3d 161 (2d Cir.

2010) (declining to address hearing presence arguments). But see People v. Perkins, 691

N.Y.S.2d 273, 27576 (N.Y. Sup. Ct. 1999). 25 618 F.2d 624, 629 (10th Cir. 1979), overruled on other grounds by Richardson v. United

States, 468 U.S. 317, 32526 (1984), as recognized in United States v. Willis, 102 F.3d 1078, 1081

(10th Cir. 1996). 26 Balano, 618 F.2d at 62829.



common sense and the underlying purpose of the confrontation clause.27 It also concluded that a hearing outside a jurys presence was required as a prerequisite to admission.28 The Tenth Circuit, however, based its conclusion more closely upon the right of confrontation itself, writing:

[W]e do not wish to emasculate the Confrontation Clause merely to facilitate government prosecutions. Thus, a prima facie showing of coercion is not enough. We hold, therefore, that before permitting the admission of grand jury testimony of witnesses who will not appear at trial because of the defendants alleged coercion, the judge must hold an evidentiary hearing in the absence of the jury and find by a preponderance of the evidence that the defendants coercion made the witness unavailable.29

The rationales expressed by the Tenth and Second Circuits therefore, are slightly different, but they may not be that far apart. Although the Mastrangelo court appeared to base its ruling on evidentiary rule requirements, a federal district court has opined that it is also grounded upon constitutional concerns. In La Torres v. Walker, the court explained that [b]ecause the right to confrontation is critical, the Second Circuit requires that an evidentiary hearing be held to determine if the defendant was in fact responsible for the unavailability of the witness and consequently waived his Sixth Amendment right.30

II. Jurisdictions in Which No Separate Hearing is Required

Trial judges traditionally have discretion over the procedures they use to determine questions regarding the admissibility of evidence.31 The D.C. Circuit Court of Appeals therefore concluded in United States v. White that a trial court could validly borrow the method utilized in co-conspirator cases to make forfeiture determinations.32 It explained that the method routinely used in those types of cases is to conditionally admit hearsay statements subject-to-connection with later presented proof of a conspiracy.33 If the connection is not proven, the court must either strike the testimony and instruct the jury to disregard it, or, if that is not enough protection, must grant a mistrial.34 The D.C. Circuit acknowledged that it may be better

27 Id. at 629 (quoting United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976)). 28 Id.; see also United States v. Cherry, 217 F.3d 811, 815 (10th Cir. 2000). 29 Balano, 618 F.2d at 629. 30 216 F. Supp. 2d 157, 166 (S.D.N.Y. 2000). 31 See United States v. White, 116 F.3d 903, 915 (D.C. Cir. 1997). 32 Id. 33 Id. 34 Id.



practice to first secure the predicates for admissibility before making an evidentiary ruling, but that trial exigencies often make that approach impracticable. It therefore concluded that it would not compare the relative merits of various competing procedures as long as trial courts adopted adequate techniques to protect defendants against prejudice that might result from premature admission when the subject-to-connection method is used.35

The D.C. Circuit expressly rejected the defendants argument in White that the trial court should have first conducted a preliminary hearing outside the presence of the jury to determine admissibility before allowing an out-of-court statement to be heard.36 The appellate court found no merit to the defenses argument that judicial ego might psychologically dissuade a judge from striking conditionally admitted evidence when a proffered basis for admission is not later made.37 It recognized that the defendants suggested sequence would have been wasteful of judicial time, as the hearing and trial testimony on the murder would have been largely duplicative. The trial court was fully entitled to bear this waste in mind.38 The appellate court did note, however, that a desirable solution might be a full trial of other issues prior to admission of statements made by a missing witness because such a procedure would concomitantly provide a trial judge with evidence relevant to the forfeiture issue.39

In United States v. Emery, the defendant was charged with killing a federal informant who had cooperated with federal authorities investigating the defendants illegal drug activities.40 The Court admitted various statements made by the murdered informant at trial contingent upon the prosecution presenting additional evidence sufficient to prove that the defendant was responsible for the murder, and thus, the unavailability of the witness. In doing so, the trial court followed cases dealing with the hearsay statements of co-conspirators: In those cases, evidence is admitted conditionally subject to proof by a preponderance of the evidence that the defendant and the declarant were co-conspirators.41 The defendant objected to the procedure used by the trial court and argued that it should have instead conducted a preliminary hearing outside the presence of the jury to determine if the defendant had procured the absence of the witness.

35 Id. 36 Id. 37 White, 116 F.3d at 916. 38 Id. at 91516. 39 Id. at 915. 40 United States v. Emery, 186 F.3d 921, 924 (8th Cir. 1999). 41 Id. at 926.



The Eighth Circuit Court of Appeals rejected the defendants contention and followed the model of the co-conspirator cases.42 It found that the procedure for contingent admission used in cases involving co-conspirator statements was appropriate in the context of the case against Emery. The appellate court wrote that it was motivated by the functional similarity of the questions involved and by the fact that the repetition necessarily inherent with a preliminary hearing would amount to a significant waste of judicial resources.43 It therefore held that the trial court did not commit error when denying a preliminary hearing.44

The Fourth Circuit Court of Appeals has not analyzed the issue as thoroughly as the Eighth or D.C. Circuits, but it has reached the same result.45 A black widow was convicted in United States v. Gray of mail and wire fraud for successively murdering two husbands and a boyfriend to collect on their insurance.46 The evidence at trial showed that the second husband was murdered, in part, to keep him from testifying in another case where she had been charged in connection with an earlier attempt to kill him.47 The Fourth Circuit held that the proof sufficiently established forfeiture.48 Additionally, it recognized that a trial court need not hold an independent evidentiary hearing if the requisite findings may be made based upon evidence presented in the course of trial.49 The court did not elaborate further on the reasoning behind its ruling. It did, however, cite an earlier case which, in turn, relied upon the Eighth Circuits opinion in Emery.50

The circumstances encountered by the Third Circuit Court of Appeals in United States v. Baskerville were very similar to those present in Emery.51

42 Id. at 92627. 43 Id. at 926. 44 Id. 45 Similarly, the First Circuit included little discussion in United States v. Houlihan of the

legal reasons why it would not require a separate evidentiary hearing, and instead noted only

that the trial court had already heard thirty-seven days of testimony in that case before

deciding that forfeiture applied, and in such circumstances, the court did not outstrip the

bounds of its discretion in declining to convene a special mid-trial evidentiary hearing.

United States v. Houlihan, 92 F.3d 1271, 1281 n.5 (1st Cir. 1996); see also United States v.

Houlihan, 887 F. Supp. 352, 35657 (D. Mass. 1995) (describing in greater detail the procedure

used by the trial court). 46 United States v. Gray, 405 F.3d 227, 23033 (4th Cir. 2005). 47 Id. at 23132, 24243. 48 Id. at 24043. 49 Id. at 241. 50 Id. (citing United States v. Johnson, 219 F.3d 349, 356 (4th Cir. 2000). 51 Compare United States v. Baskerville, 448 F. Appx. 243, 245, 24950 (3d Cir. 2011), with

United States v. Emery, 186 F.3d 921, 924, 92526 (8th Cir. 1999) (explaining that the



The defendant in Baskerville was charged and subsequently convicted of conspiracy to murder an informant who had been scheduled to testify against the defendant in an earlier drug conspiracy trial. Prior to admitting statements made by the murdered informant, the trial court requested that the prosecution make a proffer of the evidence that it expected to introduce during trial to show that the defendant had murdered the witness to keep him from testifying at the drug trial.52 The trial court thereafter admitted the statements made by the dead informant subject to connection being made at trial.53 Citing Emery and recognizing the similarities between the procedure used by the trial court and the practices endorsed for use in co-conspirator cases, the Third Circuit held that the procedure used by the trial court was an acceptable way to avoid wasting judicial resources by conducting in effect a trial before the trial.54 The appellate court did, however, recognize that if the Governments proffer had given the District Court reason to doubt its ability to actually deliver this proof at trial, an evidentiary hearing may have been in order.55 Baskerville is an unreported case and therefore not binding, but it has been found to be instructive and relied upon within the Third Circuit.56

A proffer was also utilized by the trial court in Crutchfield v. United States to make forfeiture determinations.57 In that case, the prosecution detailed evidence that it expected to introduce at trial to establish that the defendant had killed a witness to prevent her from testifying against him about a triple murder. The trial court determined on the basis of the proffer that an evidentiary hearing was not required. It further held that the defendant had waived his right to confront the murdered witness and admitted out-of-court statements that she had made.58 The trial court stated that it would monitor the evidence as it was presented to confirm that it satisfied confrontation waiver requirements. Further, the judge noted that the prosecution risked a mistrial by using the proffer method if the evidence actually presented at trial was inadequate to support admission of the statements made by the absent witness.59

defendants in both cases eliminated witnesses who were helping authorities investigate illegal

drug conspiracies that involved the defendants). 52 Baskerville, 448 F. Appx. at 249. 53 Id. 54 Id. at 24950 (citing United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999)). 55 Id. at 249. 56 See United States v. Savage, No. 0755003, 2013 WL 372947, at *35 (E.D. Pa. Jan. 31,

2013). 57 Crutchfield v. United States, 779 A.2d 307, 329 (D.C. Cir. 2001). 58 Id. 59 Id.



The Court of Appeals for the District of Columbia upheld the procedure used by the trial court in Crutchfield, noting that the proffer method had been approved in a number of comparable situations. It pointed specifically to the approved use of the proffer method to determine the admissibility of evidence regarding the commission of other crimes.60 Relying on Emery, the appellate court explained that it would be a waste of judicial resources to require repetition of evidence at both a preliminary hearing and a trial.61

Almost all jurisdictions allowing forfeiture determinations to be made without a separate hearing conducted outside the presence of a jury have relied upon the Eighth Circuits opinion in Emery or a similar analysis that a particular procedure is permissible since it is analogous to procedures approved for determining the admissibility of co-conspirator statements.62 Cases relying on Emery and by analogy to procedures used with respect to co-conspirator statements may therefore require additional analysis because the law in that area is more complex than an unqualified universal acceptance of a unitary method.63 In addition, the rationale justifying admission of co-conspirator statements has shifted post-Crawford.64

III. Co-conspirator Statements: Discretion, Conditional Admission, Proffers, and James Hearings

The Circuit Courts of Appeals have taken a variety of approaches regarding the methods by which the admissibility of co-conspirator statements may be determined. The Ninth Circuit Court of Appeals has held that the order of proof is within the sound discretion of the trial

60 Id. at 330. 61 Id. 62 E.g., United States v. Baskerville, 448 F. Appx. 243, 24950 (3d. Cir. 2011); United States

v. Gray, 405 F.3d 227, 241 (4th Cir. 2005) (citing United States v. Johnson, 219 F.3d 349, 356 (4th

Cir. 2000) (internal citations omitted)); United States v. White, 116 F.3d 903, 915 (D.C. Cir.

1997); Crutchfield, 779 A.2d at 330. After noting that the Eleventh Circuit had not yet decided

the issue, a district court found persuasive and followed the rationale adopted by the Fourth

and Eighth Circuits. United States v. Harrell, No. 6:05cr17, 2006 WL 1344851, at *12 (M.D.

Ga. May 16, 2006). But see United States v. Houlihan, 92 F.3d 1271, 1281 n.5 (1st Cir. 1996)

(basing ruling solely on trial court discretion). At present, Emery appears to represent the

majority view among federal circuits. But see Pennsylvania v. Paddy, 800 A.2d 294, 310 n.10

(Pa. 2002) (opining that the prevailing federal view that the rules applicability is to be

determined at an evidentiary hearing prior to the admission of the evidence in question). 63 E.g., United States v. James, 590 F.2d 575, 58183 (5th Cir. 1979) (establishing a preferred

order of proof and limiting use of the subject-to-connection method to special circumstances). 64 See Giles v. California, 554 U.S. 353, 37475 n.6 (2008) (Scalia, J.) (explaining that the

theoretical basis for admission of co-conspirator statements changed with Crawford).



court.65 It has therefore decided against requiring mandatory pretrial hearings for making admissibility determinations for co-conspirator statements.66 It has also declined to express a preference about what procedure a trial court should use.67

The Sixth Circuit has similarly stated that it does not believe that it is appropriate to set forth hard and fast procedures.68 It has instead explained that one acceptable method is the mini-hearing method in which the court, without a jury, hears proof and makes a preliminary finding regarding admissibility.69 Another is for a trial judge to require the prosecution to present its non-hearsay evidence of a conspiracy before making an evidentiary ruling regarding the admissibility of an out-of-court statement.70 Lastly, a trial court may conditionally admit a co-conspirator statement subject to connection, which means that its admissibility must later be demonstrated by introduction of sufficient proof that a conspiracy existed.71

The First, Second, Third, Fourth, and Seventh Circuits have expressed viewpoints similar to the Sixth and Ninth Circuits. The First Circuit has ruled that a trial judge may require the government to present all of its non-hearsay evidence before deciding whether the co-conspirator exception applies.72 Trial courts may also use the preliminary hearing method in their discretion, but the usual course of action in the First Circuit is to conditionally admit hearsay subject to a final determination as to whether it qualifies as a co-conspirator statement.73 This method, however, requires a trial court to take precautions to minimize spillover prejudice if the court ultimately strikes some or all of the provisionally admitted evidence.74

Second Circuit Judge Friendly recognized in United States v. Geaney that the practicalities of a conspiracy trial may sometimes require use of the

65 United States v. Zemek, 634 F.2d 1159, 1169 (9th Cir. 1980). 66 United States v. Arbelaez, 719 F.2d 1453, 1460 (9th Cir. 1983); Zemek, 634 F.2d at 1169

n.13. 67 United States v. Perez, 658 F.2d 654, 658 n.2 (9th Cir. 1981). 68 United States v. Vinson, 606 F.2d 149, 152 (6th Cir. 1979). 69 Id. 70 Id. at 15253. 71 Id. at 153. 72 United States v. Petrozziello, 548 F.2d 20, 22 n.3 (1st Cir. 1977), abrogated in part on other

grounds by United States v. Baines, 812 F.2d 41, 42 (1st Cir. 1987), as recognized in United States

v. Goldberg, 105 F.3d 770, 77576 (1st Cir. 1997). 73 United States v. Sepulveda-Hernandez, 752 F.3d 22, 29 n.2 (1st Cir. 2014); United States v.

Baltas, 236 F.3d 27, 3435 (1st Cir. 2001). 74 See Baltas, 236 F.3d at 3435.



subject-to-connection method. However, a trial judge may be left in a position of having to declare a mistrial if provisionally admitted evidence is subsequently disallowed and the amount of inadmissible proof is so large that an instruction to the jury to disregard it would have doubtful utility.75 The Second Circuits Geaney protocols nonetheless allow trial courts to conditionally admit alleged co-conspirator statements without conducting a pre-trial admissibility hearing.76

The Third Circuit has likewise held that a limine hearing is not required, but the subject-to-connection method should be carefully considered and sparingly utilized depending upon the circumstances of a case and the possibility that a trial court might declare a mistrial if a conspiracy is not sufficiently established to support admission of statements after they have already been heard by a jury.77 The Third Circuit nonetheless leaves it to trial courts to decide whether to conduct a pretrial evidentiary hearing or to conditionally admit an out-of-court statement subject to a requirement that the government make an adequate showing of admissibility by the close of its case.78

The Fourth Circuit has held that it is not error in itself for a judge to permit introduction of alleged co-conspirator statements subject to being followed up and connected by evidence demonstrating the existence of a conspiracybut such method does give rise to a potential for prejudice if the connection never materializes.79 As long as a judge safeguards a defendants rights by being prepared to either declare a mistrial or dismiss a case upon a failure of proof, the Fourth Circuit does not require trial courts to hold a hearing before conditionally admitting co-conspirator statements.80

The Seventh Circuit recognizes that a trial court may, in its discretion, utilize a limited pre-trial hearing to preliminarily determine admissibility based on prosecution proffers and subject to eventual submission of proof at trial.81 In addition to the pre-trial proffer method, the Seventh Circuit has explained that a trial court:

75 See United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969); see also United States v.

Stanchich, 550 F.2d 1294, 129798 (2d Cir. 1977). 76 See United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993). 77 See United States v. Ammar, 714 F.2d 238, 24547 (3d Cir. 1983). 78 United States v. Weaver, 507 F.3d 178, 18788 (3d Cir. 2007). 79 See United States v. Vaught, 485 F.2d 320, 323 (4th Cir. 1973); see also United States v.

Blevins, 960 F.2d 1252, 1256 (4th Cir. 1992). 80 See United States. v. Hines, 717 F.2d 1481, 1488 (4th Cir. 1983). 81 See United States v. Santiago, 582 F.2d 1128, 1131 (7th Cir. 1978), overruled in part on other

grounds by Bourjaily v. United States, 483 U.S. 171 (1987), as recognized in United States v.

Irorere, 228 F.3d 816, 824 n.1 (7th Cir. 2000).



can rule on each statement as it is elicited based on the evidence the Government has adduced to that point; the court can, even in the absence of a pretrial proffer, conditionally admit the body of coconspirators statements subject to the Governments eventual proof of the foundational elements (the penalty for not so proving being a possible mistrial); or the court can hold a full blown preliminary hearing to consider all evidence concerning the statements.82

However, it discourages full blown preliminary hearings because they are inefficient and require an unnecessary duplication of efforts.83 In normal practice, when a defendant makes a mid-trial objection to admission of an out-of-court statement, a judge may listen to the parties respective positions and make an evidentiary ruling either during a recess or at a side bar outside of the presence of the jury.84 Even that procedure, however, is sometimes inefficient and unworkable, and the Seventh Circuit therefore recognizes that the conditional admission method may be used.85

The D.C. Circuit considers it a better practice for the court to determine before the hearsay evidence is admitted that the evidence independent of the hearsay testimony proves the existence of the conspiracy sufficiently to justify admission of the hearsay declarations.86 The D.C. Circuit acknowledges, however, that complying with such a preferred order of proof is impractical due to witness scheduling and other logistic considerations regarding the scope of the testimony expected from each, and it therefore vests trial courts with considerable discretion to admit evidence subject to connection as a concession to such practical impediments that arise during trial.87 The D.C. Circuit recognizes that conditionally admitted evidence might later be stricken when the subject-to-connection method is used. Therefore, it is sensitive that due to the possibility of prejudice arising from the introduction of hearsay evidence that the judges later instruction to strike cannot divest of its prejudicial effect, the defendant may request, and should receive, mistrial in these circumstances.88 Thus, the D.C. Circuit encourages trial courts to follow a preferred order of proof by which a conspiracy must be sufficiently proven prior to admission of an alleged co-conspirator statement and recognizes that trial judges may hold a mini-trial out of the presence of the jury to

82 United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991). 83 See United States v. Andrus, 775 F.2d 825, 837 (7th Cir. 1985); see also Cox, 923 F.2d at 526. 84 United States v. Azzarelli Constr. Co., 612 F.2d 292, 297 (7th Cir. 1979). 85 See Andrus, 775 F.2d at 83637. 86 United States v. Jackson, 627 F.2d 1198, 1218 (D.C. Cir. 1980). 87 Id. 88 Id.



make such evidentiary determinations, but it holds that they have no obligation to do so.89

The Eighth Circuit allows trial courts to conditionally admit an alleged co-conspirator statement.90 That circuit has, however, provided the following express guidance in United States v. Bell regarding the procedural steps with which trial courts should comply:

(1) If the prosecutor propounds a question which obviously requires a witness to recount an out-of-court declaration of an alleged coconspirator, the court, upon a timely and appropriate objection by the defendant, may conditionally admit the statement. At the same time, the court should, on the record, caution the parties (a) that the statement is being admitted subject to defendants objection; (b) that the government will be required to prove by a preponderance of the independent evidence that the statement was made by a coconspirator during the course and in furtherance of the conspiracy; (c) that at the conclusion of all the evidence the court will make an explicit determination for the record regarding the admissibility of the statement; and (d) that if the court determines that the government has failed to carry the burden delineated in (b) above, the court will, upon appropriate motion, declare a mistrial, unless a cautionary instruction to the jury to disregard the statement would suffice to cure any prejudice. The foregoing procedural steps should transpire out of the hearing of the jury. (2) After a ruling on the record that the out-of-court declaration is admissible under Rule 801(d)(2)(E), the court may submit the case to the jury. The court should not charge the jury on the admissibility of the coconspirators statement, but should, of course, instruct that the government is required to prove the ultimate guilt of the defendant beyond a reasonable doubt. An appropriate instruction on credibility should be given, and the jury should be cautioned with regard to the weight and credibility to be accorded a coconspirators statement.91

Bell procedures do not contemplate or require admissibility determinations to be made at a pre-trial hearing.92 In addition, it should be noted that [p]ost-Bell cases have held that the Bell procedures are flexible . . . .93

In contrast to the other circuits, the Fifth, Tenth, and Eleventh Circuit Courts of Appeal have all adopted procedures based upon minimum

89 Id. at 121819. 90 United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978); see also United States v. Hester,

140 F.3d 753, 75859 (8th Cir. 1998). 91 Bell, 573 F.2d at 1044 (citations omitted). 92 United States v. Wood, 851 F.2d 185, 187 (8th Cir. 1988). 93 United States v. Legato, 682 F.2d 180, 183 (8th Cir. 1982).



standards established in United States v. James.94 The Fifth Circuit in James took a holistic view of judicial economy and noted that the subject-to-connection method for admitting out-of-court statements is just as likely to waste judicial resources as it is to conserve them. It explained that:

Both because of the danger to the defendant if the statement is not connected and because of the inevitable serious waste of time, energy and efficiency when a mistrial is required in order to obviate such danger, we conclude that the present procedure warrants the statement of a preferred order of proof in such a case.95

The James court therefore held that a trial judge must make a preliminary ruling based upon substantial evidence that the co-conspirator statement rule applies before an out-of-court statement may be heard by a jury.96 The subject-to-connection method may still be used despite the order of proof preferred by James, but only if it is not reasonably practical to require the showing to be made before admitting the evidence . . . .97 Regardless of the method used to admit an alleged co-conspirator statement, the trial judge must revisit its preliminary ruling at the conclusion of all of the evidence and:

determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the co-conspirator and the defendant against whom the coconspirators statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E). If the court concludes that the prosecution has not borne its burden of proof on these issues, the statement cannot remain in the evidence to be submitted to the jury. In that event, the judge must decide whether the prejudice arising from the erroneous admission of the coconspirators statements can be cured by a cautionary instruction to disregard the statement or whether a mistrial is required.98

94 See United States v. James, 590 F.2d 575, 581 (5th Cir. 1979); see, e.g., United States v.

Owens, 70 F.3d 1118, 1123 (10th Cir. 1995) (expressing a strong preference for procedures

established by James); United States v. Espino-Perez, 798 F.2d 439, 441 (11th Cir. 1986) (James

procedures preferred); Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)

(adopting preOct. 1, 1981 decisions made by the Fifth Circuit as part of the body of law for

the Eleventh Circuit); United States v. Peterson, 611 F.2d 1313, 133031 (10th Cir. 1979)

(adopting James procedures). 95 James, 590 F.2d at 582. 96 Id. at 581. 97 Id. at 582. 98 Id. at 58283, abrogated in part by Bourjaily v. United States, 483 U.S. 171, 18081 (1987), as

recognized in United States v. Fragoso, 978 F.2d 896, 900 (5th Cir. 1992) (stating that Bourjaily



James essentially established a preferred order of proof, as opposed to an express mandate for a pre-admission hearing, however, the procedure adopted by that case has been applied in that manner and come to be colloquially known as a James hearing.99 Although James is followed by the Fifth, Tenth, and Eleventh Circuits, it is not absolute, and trial courts are given discretion to determine whether or not a James hearing is necessary in a particular case.100 In addition, a James hearing does not need to take place outside the presence of a jury.101

The U.S. Supreme Court has not expressed a definitive preference about the procedure that should be used to determine the admissibility of co-conspirator statements. It has, however, been presented with the opportunity. Relying on its earlier decision, United States v. Vinson, the Sixth Circuit Court of Appeals held in United States v. Bourjaily that a co-conspirator statement may be admitted using the subject-to-connection method.102 The Sixth Circuit explained that a co-conspirator determination need not be decided at the time the questionable evidence is offered. Rather, as the trial court here did, the court may wait until the United States case is complete before making findings and a ruling on its admissibility.103 The Supreme Court affirmed some aspects of the Sixth Circuits Bourjaily decision regarding application of the co-conspirator statement rule, but noted that we do not express an opinion on the proper order of proof that trial courts should follow . . . in an ongoing trial.104

While the Supreme Court in Bourjaily did not discuss the proper order of proof, it placed particular emphasis on Federal Rule of Evidence 104 when evaluating the burden of proof requirements for the co-conspirator statement rule, and held that the Rule prevails.105 Rule 104 of the Federal Rules of Evidence is a rule of general application, not limited to

swept away the portion of James that held a conspiracy must be proven by evidence

independent of a co-conspirators statement). 99 United States v. Barshov, 733 F.2d 842, 84950 (11th Cir. 1984); see also United States v.

Owens, 70 F.3d 1118, 1123 (10th Cir. 1995) (describing procedures as a James hearing); United

States v. EspinoPerez, 798 F.2d 439, 441 (11th Cir. 1986) (giving a similar description). 100 United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001); United States v. Hernandez,

829 F.2d 988, 99394 (10th Cir. 1987); Espino-Perez, 798 F.2d at 441; see United States v.

Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (Under Tenth Circuit law, a district court can

only admit coconspirator statements if it holds a James hearing or conditions admission on

forthcoming proof of a predicate conspiracy through trial testimony or other evidence.). 101 Fragoso, 978 F.2d at 899. 102 United States v. Bourjaily, 781 F.2d 539, 542 (6th Cir. 1986). 103 Id. at 542 (citing United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979)). 104 Bourjaily v. United States, 483 U.S. 171, 176 n.1 (1987). 105 Id. at 17879.



coconspirator statements under Rule 801(d)(2)(E).106 Rule 103 is likewise a rule of general application.107 It states that [t]o the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.108 The Supreme Courts conclusion in Bourjaily that evidentiary rule requirements prevail may therefore imply an order-of-proof preference in some circumstances. Rule 103(d) should also prevail and demand that proceedings occur outside the presence of a jury anytime inadmissible evidence must be presented for a trial judge to make an evidentiary determination. Since Rule 104(a) allows a trial court to rely upon otherwise inadmissible non-privileged proof when resolving preliminary questions,109 there are many instances in which the operation of the evidentiary rules may, in practice, dictate a particular order of proof or use of special procedures when making admissibility determinations.

Regardless of the method used to determine admissibility of co-conspirator statements, the circuits appear to uniformly require that a judge make any findings outside the presence of a jury and not attempt to explain the reasoning behind the evidentiary rulings to them.110 This is because exposure to the judges views may influence a jurys deliberations. The Sixth Circuit Court of Appeals explained in Vinson:

If the trial judge does choose to admit the hearsay (a) after the government has established the conspiracy by a preponderance at the trial, or (b) at a mini-hearing, or (c) conditionally subject to connection, he should refrain from advising the jury of his findings that the government has satisfactorily proved the conspiracy. The judge should not describe to the jury the governments burden of proof on the preliminary question. Such an instruction can serve only to alert the jury that the judge has determined that a conspiracy involving the defendant has been proven by a preponderance of the evidence. This may adversely affect the defendants right to trial by jury. The judges opinion is likely to influence strongly the opinion of individual jurors when they come to consider their verdict and judge the credibility of witnesses.111

The Seventh Circuit further explained in United States v. Peters that [m]ore appropriately, the judge should at most merely caution the jurors at the time the coconspirator hearsay is admitted that the evidence was not

106 United States v. Saneaux, 365 F. Supp. 2d 488, 491 (S.D.N.Y. 2005). 107 See FED. R. EVID. 103. 108 Id. at 103(d). 109 FED. R. EVID. 104(a). 110 See, e.g., United States v. SevillaAcosta, 746 F.3d 900, 90405 (8th Cir. 2014); United

States v. Tracy, 12 F.3d 1186, 1200 (2d Cir. 1993). 111 United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979).



subject to crossexamination.112 In addition, the court should give appropriate instructions on credibility and burden of proof.113

The task of a judge when determining the admissibility of co-conspirator statements and the applicability of forfeiture by wrongdoing is very similar. Each situation hinges on an assessment of some conduct purportedly committed by a defendant. The forfeiture-by-wrongdoing doctrine requires a court to preliminarily decide whether a defendant caused the unavailability of a witness.114 A statement made by a co-conspirator is likewise only admissible if a judge determines that a defendant participated in a conspiracy with a declarant and the statement was made in furtherance of that conspiracy.115 In each instance, the judge may need to make a ruling for purposes of evidence admissibility that coincides with the ultimate decision to be made by the jury. The co-conspirator statement rule is not limited to cases involving conspiracy charges.116 However, a judge in a conspiracy case must make an initial determination that the conspiracy existed to be able to determine whether a co-conspirators statement can be admitted.117 So too, in cases where charges arise from alleged conduct of a defendant that prevents a witness from testifying, must a judge preliminarily decide whether a defendant committed the crime when making a forfeiture determination regarding the admissibility of a statement made by the missing witness.118 In both situations, a defendant loses any confrontation objection if it is determined that the particular exception applies.119

The admission of out-of-court statements under the co-conspirator statement rule and the forfeiture-by-wrongdoing doctrine now differ insofar as the respective theoretical basis of each, upon which the evidence is admitted once a determination has been made. Out-of-court statements made by a witness who has been wrongfully prevented by a defendant from testifying at trial are admitted despite the defendants right of confrontation to protect the adjudicatory process because, [w]hile defendants have no duty to assist the State in proving their guilt, they do

112 791 F.2d 1270, 1285 (7th Cir. 1986), cert. denied, 479 U.S. 847 (1986), and superseded by

statute on other grounds as recognized in United States v. Guerrero, 894 F.2d 261, 267 (7th Cir.

1990). 113 Id. at 1285 (quoting United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978)). 114 See Reynolds v. United States, 98 U.S. 145, 15859 (1878). 115 Bourjaily v. United States, 483 U.S. 171, 175 (1987). 116 United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991). 117 See, e.g., United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969). 118 See, e.g., United States v. Mayhew, 380 F. Supp. 2d 961, 967 (S.D. Ohio 2005). 119 See, e.g., Bourjaily, 483 U.S. at 181 (applying the co-conspirator exception); Davis v.

Washington, 547 U.S. 813, 833 (2006) (applying forfeiture-by-wrongdoing doctrine).



have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system.120 In contrast, the post-Crawford rationale for admission of co-conspirator statements is that they were non-testimonial when made during the course of a conspiracy and, therefore, do not fall within the scope of the Confrontation Clause.121 One could therefore argue that the pre-Crawford cases analogizing the doctrines have become outdated, because co-conspirator statements no longer trigger confrontation requirements while forfeiture by wrongdoing remains an exception to them. However, when it comes to the appropriateness of the procedures used to determine evidence admissibility, it is a distinction without any real difference. The constitutional concern with respect to both doctrines is whether an out-of-court statement may be used absent an opportunity for confrontation. The theoretical justification for denying confrontation after a determination has been made that a particular doctrine applies should provide no basis for setting apart the procedures by which such determinations may be made.

Cases governing the co-conspirator statement rule remain instructive, because they demonstrate that a one-size-fits all solution may not exist. A trial judge may not know that an out-of-court statement will be introduced into evidence until it is offered. Attorneys on both sides of a case do not openly expose their entire litigation strategy in advance of trial for tactical reasons. It would be foolhardy for a prosecutor to announce in open court, to a defendant who is suspected of pressuring witnesses not to testify, that his or her efforts appear to be working. Therefore, many times a trial judge does not know in advance that a witness might not appear or that out-of-court statements will be offered in lieu of live testimony. Witnesses also regularly blurt out things unexpectedly during the course of testifying to the surprise not only of the judge, but also to the attorney asking questions. By necessity, judges must regularly deal with admissibility questions in the middle of a trial. As a consequence, even those jurisdictions that have expressed a preferred order of proof regarding presentation of co-conspirator statements recognize that it is not always reasonably practical to require the predicates for admission of evidence to be shown in advance.122

The need for flexibility is even more acute when dealing with the forfeiture-by-wrongdoing doctrine.

120 Davis, 547 U.S. at 833. 121 United States v. Farhane, 634 F.3d 127, 16263 (2d Cir. 2011); United States v. Hendricks,

395 F.3d 173, 18284 (3d Cir. 2005); United States v. Reyes, 362 F.3d 536, 540 n.4 (8th Cir. 2004);

see Crawford v. Washington, 541 U.S. 36, 56 (2004); United States v. Jenkins, 419 F.3d 614, 618

(7th Cir. 2005). 122 United States v. James, 590 F.2d 575, 582 (5th Cir. 1979).



Forfeiture-by-wrongdoing determinations necessarily must be made in close proximity to trial, or even during trial, because the doctrine only applies if a witness does not actually appear.123 With the exception of extreme instances in which a witness is dead, the absence of a prospective witness often cannot be predicted. In domestic violence cases, for example, a victim/witness may cooperate with a prosecution until the day of trial, then suddenly disappear. The forfeiture-by-wrongdoing doctrine contemplates that some defendants attempt to obstruct proceedings by keeping witnesses away, and therefore it must also anticipate that those seeking to upset a criminal prosecution will likely do so without warning when least convenient and most difficult to counteract. An inflexible pretrial hearing requirement would confer perverse reward upon those who wait to tamper with witnesses until after a trial has already begun. For that matter, establishment of any rigid protocols would be unrealistic and provide incentive for defendants seeking to disrupt the prosecution of a case to further manipulate a proceeding in a manner to frustrate their fulfillment. As soon as a rule becomes set in stone, it becomes an obvious target for any wrongdoing efforts.

Cases regarding the co-conspirator statement rule are also instructive, because they demonstrate that the question of whether or not to require a pre-admission hearing is not so simple. Jurisdictions allowing introduction of co-conspirator statements through the subject-to-connection method place added responsibilities upon a trial judge to monitor the sufficiency of proof throughout the proceedings and potentially declare a mistrial if it is determined that conditionally admitted evidence must be stricken and is too prejudicial for a jury to disregard.124 Conditional admission may be tolerated when necessary, but jurisdictions that allow it also warn that it should be sparingly utilized, and acknowledge that it is probably better practice to determine whether a conspiracy has been sufficiently proven before admitting a co-conspirator statement.125

Forfeiture-by-wrongdoing cases that rely upon co-conspirator cases to justify their holdings must therefore also impliedly incorporate the cautionary advice and safeguards they demand. In Emery, the Eighth Circuit cited its prior holding in Bell stating that, [w]e agree with the trial court that a procedure adapted from the co-conspirator cases was

123 Utah v. Poole, 232 P.3d 519, 52728 (Utah 2010). 124 See United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991); United States v. Ammar, 714

F.2d 238, 247 (3d Cir. 1983); United States v. Hines, 717 F.2d 1481, 1488 (4th Cir. 1983); United

States v. Jackson, 627 F.2d 1198, 1218 (D.C. Cir. 1980); United States v. Bell, 573 F.2d 1040, 1044

(8th Cir. 1978); United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969). 125 See Ammar, 714 F.2d at 24547; Jackson, 627 F.2d at 1218.



appropriate in the present [forfeiture-by-wrongdoing] context.126 Bell fell far short of a ringing endorsement for conditional admission, and instead indicated that a trial court might have to declare a mistrial in some cases if the judge determines that the government failed to carry its burden of thereafter proving the applicability of the co-conspirator statement rule.127 The D.C. Circuit in White likewise borrowed co-conspirator statement procedures from its earlier decision in Jackson when establishing protocols for the forfeiture-by-wrongdoing doctrine, and noted that trial courts using the subject-to-connection method must either strike the testimony and instruct the jury to disregard it, or if that is not enough protection, must grant a mistrial if an adequate showing of wrongful procurement is not ultimately made.128

The co-conspirator statement cases cannot be blindly grouped into two categories: those that require pre-admission hearings and those that do not. The cases recognize that the vagaries of trial are more complex. A particular order of proof may be desired, but it is not always achievable.129 The discretionary authority of a judge over the conduct of a trial is indispensable, but it must be exercised in a manner that protects a defendants right to a fair trial.130

IV. Trial Court Governance Over Proceedings vs. Practical Limitations Upon the Ability to Un-Ring a Bell

The U. S. Supreme Court recognizes that a judge has considerable discretion over the manner in which proof is presented at trial. In Geders v. United States, the Supreme Court explained:

Our cases have consistently recognized the important role the trial judge plays in the federal system of criminal justice. [T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. . . . A criminal trial does not unfold like a play with actors following a script; there is no scenario and can be none. The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process. To this end, he may determine generally the order in which parties will adduce

126 United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999). 127 Bell, 573 F.2d at 1044. 128 United States v. White, 116 F.3d 903, 915 (D.C. Cir. 1997). 129 See e.g., United States v. James, 590 F.2d 575, 582 (5th Cir. 1979). 130 See, e.g., Bell, 573 F.2d at 1044.



proof; his determination will be reviewed only for abuse of discretion.131

A trial judge may anticipate that certain evidence might be offered, but until such time that it is offered, a judge cannot know for sure. A trial courts ability to control and maintain fairness during a trial is reactive by necessity, and sometimes dependent upon a judge instructing a jury to disregard certain things after their occurrence. For example, the prosecutor in Holt v. United States attempted to introduce statements into evidence that had been made by a defendant and referred to them as confessions when arguing for their admission.132 The trial judge excluded the statements and cautioned the jury, but the defendant nonetheless argued that the judge erred by considering the admissibility of the statements and arguments of counsel in the jurys presence. In an opinion authored by Justice Holmes, the Supreme Court rejected the objection, writing:

[W]e are of opinion that it was within the discretion of the judge to allow the jury to remain in court. Technically the offer of the evidence had to be made in their presence before any question of excluding them could arise. They must have known, even if they left the court, that statements relied on as admitting part or the whole of the Governments case were offered. The evidence to which they listened was simply evidence of facts deemed by the judge sufficient to show that the statements, if any, were not freely made, and it could not have prejudiced the prisoner. No evidence was admitted that the prisoner had made any confession and his statements were excluded. Moreover the judge said to the jury that they were to decide the case on the testimony as it came from the witnesses on the stand; not what counsel might say or the newspapers publish; that he was not excluding them, because he assumed that they were men of experience and common sense and could decide the case upon the evidence that the court admitted. He also told them in the strongest terms that the preliminary evidence that he was hearing had no bearing on the question they had to decide. No doubt the more conservative course is to exclude the jury during the consideration of the admissibility of confessions, but there is force in the judges view that if juries are fit to play the part assigned to them by our law they will be able to do what a judge had to do every time that he tries a case on the facts without them, and we cannot say that he

131 Geders v. United States, 425 U.S. 80, 86 (1976) (citations omitted); cf. Illinois v. Allen, 397

U.S. 337, 34247 (1970) (recognizing the authority of a trial judge to have a disruptive

defendant removed from a courtroom to preserve the dignity, order, and decorum of

proceedings despite the defendants attendant loss of confrontation rights). 132 Holt v. United States, 218 U.S. 245, 24950 (1910).



was wrong in thinking that the men before him were competent for their task.133

By the time it decided Jackson v. Denno, the Supreme Court held a somewhat different view, ruling that due process may require certain determinations to be made outside the presence of a jury responsible for deciding innocence or guilt.134 Jackson declared unconstitutional a New York procedure by which a jury was asked to decide by general verdict both the voluntariness of a confession and a defendants ultimate fate.135 The Supreme Court explained that it is . . . axiomatic that a defendant . . . is deprived of due process when a conviction is founded, in whole or in part, upon an involuntary confession.136 This is not only because coerced confessions may be unreliable, but also because of strongly felt societal beliefs that important human values are sacrificed when the government wrings a confession out of a defendant in order to secure a conviction.137 The Court therefore held that a defendant has a constitutional right at some stage in the proceedings to have a fair hearing and reliable determination made regarding the voluntariness of an alleged confession.138 The Court recognized that a jury, tasked with deciding both voluntariness of a confession and innocence or guilt, might become predisposed upon hearing a coerced confession to find it voluntary if necessary to keep a guilty defendant from going free.139 In addition, the Court noted that a jury may be unable to disregard a coerced confession, even if instructed to do so, once the confession is solidly implanted in the jurys mind . . . .140 A majority agreed that the voluntariness of the confession should have been determined in a proceeding separate and apart from the body trying guilt or innocence.141

Justice Harlan issued a stinging dissent in Jackson, observing that the majoritys lack of faith in a jurys ability to follow instructions was inapposite to precedent and, in effect, indicative of a distrust in the jury system itself.142 Justice Harlan wrote:

The danger that a jury will be unable or unwilling to follow instructions is not, of course, confined to joint trials or trials

133 Id. But see FED. R. EVID. 104(c)(1). 134 See Jackson v. Denno, 378 U.S. 368, 39091 (1964). 135 Id. at 38991. 136 Id. at 376. 137 Id. at 38586. 138 Id. at 37677; see also Lego v. Twomey, 404 U.S. 477, 489 (1972). 139 Jackson, 378 U.S. at 38283. 140 Id. at 388. 141 Id. at 394. 142 See id. at 42740 (Harlan, J., dissenting).



involving special issues such as insanity or the admissibility of a confession. It arises whenever evidence admissible for one purpose is inadmissible for another, and the jury is admonished that it may consider the evidence only with respect to the former. . . . More broadly, it arises every time a counsel or the trial judge misspeaks himself at trial and the judge instructs the jury to disregard what it has heard. . . . In short, the fears which guide the Courts opinion grow out of the very nature of the jury system.143

The Supreme Court revisited the procedural requirements of Jackson in Pinto v. Pierce and rejected the argument that Jackson required a judge to conduct a separate hearing outside the presence of a jury to determine whether a confession had been coerced.144 The Court commented that because a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury.145 The Court noted, however, that it had never ruled that all voluntariness hearings must be held outside the presence of the jury, regardless of the circumstances.146 Despite this general statement which seemingly limits Jackson, the Supreme Court recognized a year later in Bruton v. United States, with reference to Jackson, that there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.147

Jackson established that there are some circumstances in which the Supreme Court will not indulge the usual presumption that a jury can be relied upon to determine issues according to the trial judges instructions.148 The extent to which it will require separation of the gate-keeping function of a judge in determining questions of admissibility from the fact finding function of a jury may depend largely upon the nature of the evidence at issue. With respect to out-of-court identification evidence, the Supreme Court held in Watkins v. Sowders that no per se rule requiring a separate hearing need be established because the reliability of an identification is the primary consideration upon which admissibility depends, and the proper evaluation of such evidence under instructions

143 Id. at 435 (Harlan, J., dissenting) (citations omitted). 144 Pinto v. Pierce, 389 U.S. 31, 3132 (1967). 145 Id. at 32. 146 Id. 147 Bruton v. United States, 391 U.S. 123, 135 (1968). Justice Harlan joined Justice Whites

dissent in Bruton while expressly stating that he did not abandon his original disagreement

with Jackson. Id. at 144 (Harlan, J., dissenting). 148 Watkins v. Sowders, 449 U.S. 341, 347 (1981).



from a trial judge is the very task that our system of justice assumes that juries can perform.149 With respect to a confession of a co-defendant in a joint trial that implicates another defendant, however, the Supreme Court held in Bruton that such information is so prejudicial if heard by a jury that an instruction limiting its use against only the confessor would not be an adequate substitute for the non-confessing co-defendants constitutional right of cross-examination: The effect is the same as if there had been no instruction at all.150

Bruton was limited by Richardson v. Marsh, which held that it may be possible in some instances to redact a confession for use in a joint trial with proper limiting instructions without violating the non-confessing defendants right to confront a confessor-co-defendant who does not testify at trial.151 The Richardson Court recognized though, that the presumption that jurors will comply with instructions given by a trial judge is driven more by practicality than reality:

The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.152

The Supreme Court subsequently held in Gray v. Maryland that limiting instructions could not save an inadequately redacted confession in the joint trial of a confessor and non-confessor, because certain powerfully incriminating extrajudicial statements of a codefendantthose naming another defendantconsidered as a class, are so prejudicial that limiting instructions cannot work.153

The Supreme Court is unlikely to severely disturb the deference traditionally given to trial courts in determining matters regarding the order of proof because the number of variables encountered by a judge during trial makes it imprudent to invite appeals by second-guessing every decision that may be made.154 However, the Jackson and Bruton line of cases indicate that a judge who conditionally allows a particularly devastating testimonial out-of-court statement, subject to connection with later proof

149 Id. at 34748. It should be noted, however, that the Court recognized that it may often be

advisable to make a judicial determination outside the presence of a jury of the admissibility

of a witnesss identification of a defendant as the culprit of a crime and, in some

circumstances, constitutionally necessary. Id. at 349. 150 Bruton, 391 U.S. at 12637. 151 Richardson v. Marsh, 481 U.S. 200, 20611 (1987). 152 Id. at 211. 153 Gray v. Maryland, 523 U.S. 185, 192 (1998). 154 See Geders v. United States, 425 U.S. 80, 86 (1976).



that the forfeiture-by-wrongdoing doctrine justifies its admission, may do so at the judges own risk. Take for instance, an extreme example, where admission is sought for an incriminating confession given by a missing accomplice to a crime. If proof materializes that the defendant procured the absence of the accomplice to keep him or her from testifying, the confession would appear to be admissible.155 However, if an adequate showing of wrongdoing is not made, the conditionally admitted confession would appear to be exactly the type of statement for which a curing instruction might be found inadequate.156 While there are many other types of testimonial out-of-court statements besides confessions that may be admitted when the forfeiture-by-wrongdoing doctrine applies,157 the constitutional sufficiency of an instruction that a jury must disregard a conditionally admitted statement that is later excluded appears to turn on the power by which the statement incriminates the defendant. If the statement is particularly effective, a jury may be deemed incapable of ignoring it, and a judge may be unable to save a trial from its premature admission.158

A prosecutor who unsuccessfully attempts to link a conditionally admitted out-of-court statement to alleged wrongful procurement of a missing witness would be in an awkward position when arguing to sustain a conviction obtained after the statement was stricken. Post-conviction arguments that the stricken statement was unimportant and had no effect on a jurys verdict would seem directly in conflict with the attempt to admit the statement at trial. If the statement had so little bearing upon the outcome of a case, then why was it offered into evidence in the first place? In most cases, forfeiture by wrongdoing is something that would need to be proven merely for purposes of admissibility in addition to everything else.159 Therefore, it would not appear to make sense that a prosecutor

155 See Giles v. California, 554 U.S. 353, 35968 (2008). 156 See Bruton v. United States, 391 U.S. 123, 12437 (1968); Jones v. Basinger, 635 F.3d 1030,

105556 (7th Cir. 2011). 157 See Crawford v. Washington, 541 U.S. 36, 5152 (2004) (recognizing without adopting

various formulations for determining the types of statements that may be considered

testimonial for purposes of Confrontation Clause analysis). 158 See Gray, 523 U.S. at 192. But see Hayes v. Ayers, 632 F.3d 500, 51214 (9th Cir. 2011)

(holding that an instruction to entirely disregard improperly presented evidence removes it

from Bruton/Gray analysis, because an instruction to flatly disregard eases the task

condemned in Bruton of having a jury consider highly prejudicial evidence for some purposes

while expecting it will ignore that evidence for others). 159 An exception would be a case in which a defendant is on trial for charges that he or she

eliminated or interfered with a witness to prevent them from testifying in another matter. See

United States v. Gray, 405 F.3d 227, 240 (4th. Cir. 2005). In that instance, the elements of, or at

least the motive for, the underlying crime would include an intent-to-silence, and proof of the



would willingly undertake an additional proof burden unless that effort was expected to result in the admission of evidence that was particularly helpful in proving more essential parts of the governments case.

The core concern in Bruton was that the introduction of a non-testifying co-defendant confession posed a substantial threat to the other co-defendants right of confrontationa hazard that the Supreme Court could not ignore.160 The Supreme Court in Crawford reemphasized the importance of cross-examination to the truth seeking process.161 Therefore, it seems extremely unlikely that the court would hold that premature admission under the forfeiture-by-wrongdoing doctrine of a subsequently stricken incriminating testimonial statement made by an absent witness might be cured by a jury instruction. If the Supreme Court holds true to its belief that some types of statements are so powerful and prejudicial that limiting instructions cannot work,162 a similar analysis should be applied to any statements improperly heard by a jury when it is subsequently determined that a defendants confrontation right has been violated by an unfulfilled proffer of wrongful procurement. The same right at issue in Bruton is at stake anytime the forfeiture-by-wrongdoing doctrine is applied. Once it is determined that the doctrine does not apply, the only remaining question when an out-of-court statement has already been conditionally admitted is whether an instruction to disregard the statement provides an adequate remedy. Bruton indicates that such an instruction may be deemed inadequate in situations involving particularly damning inadmissible evidence.

V. The Impact of Crawford, Davis, and Giles Upon Hearing Requirements

The U. S. Army Court of Criminal Appeals stated in United States v. Marchesano that dicta in Giles may indicate a preference for conducting evidentiary hearings to make forfeiture determinations. The Marchesano court explained that [a]lthough the Court did not specify a particular procedure for determining whether the principle applies, in dicta, the Court appeared to cite with approval the practice of requiring an evidentiary hearing before admitting a witnesss statement over the objection of an accused.163 It therefore concluded, in light of Giles and the

crime might also prove forfeiture by wrongdoing with respect to out-of-court statements

made by the missing witness. See id. 160 Bruton, 391 U.S. at 13637. 161 Crawford v. Washington, 541 U.S. 36, 5556 (2004). 162 See, e.g., Gray, 523 U.S. at 192 (citing Richardson v. Marsh, 481 U.S. 200, 207 (1987)). 163 United States v. Machesano, 67 M.J. 535, 542 (2008) (citing Giles v. California, 554 U.S.

353, 37475 n.6 (2008)); cf. California v. Osorio, 81 Cal. Rptr. 3d 167, 173 (Cal. Ct. App. 2008)



position taken by some of the federal circuits, that it is advisable for military courts to hold an evidentiary hearing outside of the presence of an adjudicatory panel to decide whether confrontation forfeiture applies.164

The portion of Giles seen by the court in Marchesano as favoring evidentiary hearings may not be a clear indication of a Supreme Court preference. The language in Giles did not refer to the need for a hearing, but instead referred to the ability of a trial judge to make a preliminary evidentiary determination that touches upon the merits of an underlying charge.165 In addition, only a minority of justices joined in the section of the opinion in which the language appears.166 However, the practical effect of Giles may drive the need for a separate hearing in many instances.

Giles requires an intent-to-silence before forfeiture can apply.167 It need not be the sole motivation of a defendant when procuring the absence of a witness.168 It is nonetheless something that must be proven in addition to the wrongdoing itself.169 Evidence in a murder case that a defendant killed a victim/witness is not enough to admit testimonial statements made by the decedent under the forfeiture-by-wrongdoing doctrine. Confrontation forfeiture applies only if it is also shown that the defendant eliminated the victim/witness for the purpose of preventing testimony.170

This is not necessarily fatal to the proffer method. Intent-to-silence requirements adopted by lower courts prior to Giles did not always necessitate evidentiary hearings for making forfeiture determinations.171 In addition, the proffer method has continued to be endorsed post-Giles.172 However, the Giles Courts confirmation of this additional substantive element limits the situations in which the facts relevant to proving an underlying charge may coalesce with the facts needed to prove forfeiture. For example, the facts needed to prove a charge that a defendant murdered a witness after indictment in an earlier matter to avoid conviction would

(relying on the same footnote passage in Giles and declining to consider issues related to

forfeiture, because the trial court had not held an evidentiary hearing). 164 Marchesano, 67 M.J. at 544 n.8. 165 Giles, 554 U.S. at 37475 n.6. 166 See id. at 354, 37476, 379 (Souter, J., concurring) (but not joining in the Part IID2 of

Justice Scalias opinion which contains footnote 6). 167 Id. at 35968. 168 United States v. Jackson, 706 F.3d 264, 26769 (4th Cir. 2013). 169 See United States v. Dinkins, 691 F.3d 358, 383 (4th Cir. 2012). 170 Giles, 554 U.S. at 35968. 171 See, e.g., United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005). 172 See United States v. Baskerville, 448 F. Appx. 243, 249 (3d Cir. 2011); see also United

States v. Johnson, 403 F. Supp. 2d 721, 81214 (N.D. Iowa 2005) (reaffirming Emerys continued

postCrawford applicability).



also likely prove forfeiture of the right to confront the witness in a subsequent murder case, because the required elements of proof are the same, or at least substantially similar.173 The evidence needed to prove wrongful procurement in the trial of the earlier matter, however, would include additional facts beyond those necessary to prove the underlying crime since any intent-to-silence that witness would not have been part of the original indictment. It could be maintained that wrongful procurement of witness unavailability is always relevant in any case as evidence of consciousness of guilt.174 The scope of its admissibility might nonetheless be limited by its probative value with respect to the offense charged.175 A trial court could find allegations that a defendant intended to silence a witness are not directly relevant, or too prejudicial to be heard by a jury in the trial for a crime that preceded any witness tampering.

In addition to the practical effect of the proof requirements confirmed by Giles, application of evidentiary rules to those requirements may play a role in determining whether a separate forfeiture hearing is required. The Supreme Court in Crawford stated that it accepted the forfeiture-by-wrongdoing doctrine with citation to Reynolds v. United States.176 The Supreme Court in Reynolds explained that the question becomes practically one of fact, to be settled as a preliminary to the admission of secondary evidence. In this respect it is like the preliminary question of the proof of loss of a written instrument, before secondary evidence of the contents of the instrument can be admitted.177 In addition, both Giles and Davis confirm that the forfeiture-by-wrongdoing doctrine is codified by Federal Rule of Evidence 804(b)(6).178 Rule 804(b)(6) adopts the regularly applicable procedures contained in Rule 104.179 Rule 104(a) provides in pertinent part that [t]he court must decide any preliminary question about whether . . . evidence is admissible.180 The combination of Reynolds and modern evidentiary rules may, therefore, instruct that a judge should decide the preliminary factual question first before the secondary evidence may be heard.

173 See, e.g., United States v. Emery, 186 F.3d 921, 92527 (8th Cir. 1999). 174 See Commonwealth v. Edwards, 830 N.E.2d 158, 164 n.6 (Mass. 2005). 175 See, e.g., Jenkins v. United States, 80 A.3d 978, 99394 (D.C. 2013). 176 Crawford v. Washington, 541 U.S. 36, 62 (2004) (citing Reynolds v. United States, 98 U.S.

145, 15859 (1878)). 177 Reynolds, 98 U.S. at 159. 178 Giles v. California, 554 U.S. 353, 367 (2008); Davis v. Washington, 547 U.S. 813, 833

(2006). 179 See H.R. DOC. NO. 10569, at 23 (1997). 180 FED. R. EVID. 104(a).



In addition, Rule 104(a) provides that, when deciding a preliminary question, the court is not bound by evidence rules, except those on privilege.181 The Supreme Court has not taken a position on the standards necessary to demonstrate forfeiture, but it has intimated that hearsay evidence might be considered.182 In so doing, the Court cited Commonwealth v. Edwards, where the Massachusetts Supreme Judicial Court held that forfeiture hearings are required.183 Other lower courts have also held that forfeiture by wrongdoing may be proven by evidence that would otherwise be inadmissible.184 If the proof of confrontation forfeiture relies upon inadmissible evidence, Rule 103(d) would seem to require that it be heard outside of a jurys presence.185

There are undoubtedly situations where a separate hearing may not be needed to make a forfeiture determination. For example, the appellate court in United States v. Houlihan recognized that a trial judge did not need to convene a special mid-trial evidentiary hearing after having already sat through thirty-seven days of trial.186 Much depends upon what has already been admitted into evidence by the time a forfeiture question arises. The Texas Court of Appeals suggested a sensible solution in Gonzalez v. Texas for trial courts faced with a mid-trial forfeiture question:

In future cases, we encourage the trial courts to consider the forfeiture issue at the time they are confronted with a Confrontation Clause objection. When making its forfeiture determination, a court should consider the evidence admitted up to that point in the proceeding and, if necessary, hold a hearing outside the presence of the jury to take additional evidence. If there is sufficient evidence to demonstrate forfeiture, the court should admit the evidence over the defendants objection and set forth on the record its factual findings that support a forfeiture to allow for a meaningful appellate review of the forfeiture issue.187

As noted in Gonzalez, a separate mid-trial hearing on forfeiture may not always be required. A trial court may have heard sufficient testimony by the time a forfeiture question is presented upon which to make a ruling. If, however, additional evidence is required or offered on confrontation forfeiture, the court should take care with the manner by which the evidence is received. The advice given by the Texas Court of Appeals

181 Id. 182 Davis v. Washington, 547 U.S. 813, 833 (2006). 183 Id. (citing Commonwealth v. Edwards, 830 N.E.2d 158, 174 (Mass. 2005)). 184 E.g., United States v. White, 116 F.3d 903, 914 (D.C. Cir. 1997); United States v.

Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982). 185 See FED. R. EVID. 103(d). 186 United States v. Houlihan, 92 F.3d 1271, 1281 n.5 (1st Cir. 1996). 187 Gonzalez v. Texas, 155 S.W.3d 603, 610 n.5 (Tex. App. 2004).


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