By Aaron R. Petty[*]
The Sixth Amendment provides that a criminal defendant is entitled to “be confronted by the witnesses against him.”[1] But this right is not absolute. Forfeiture by wrongdoing extinguishes a defendant’s Sixth Amendment right to confront witnesses if the defendant wrongfully causes or is complicit in the unavailability of a witness. But when the Supreme Court reiterated its approval of this doctrine in Crawford v. Washington,[2] it left few clues suggesting how the doctrine should be applied. Instead, defining the doctrine’s contours was left to the lower courts. In determining whether the witness is “unavailable” to testify, these courts have borrowed the “good faith” test traditionally used to establish whether a witness is unavailable for purposes of admitting prior testimony.[3] In this Essay, I propose a more nuanced approach to unavailability. In Part I, I review the two situations in which testimonial statements of an unavailable witness may be admitted at trial notwithstanding the Confrontation Clause: admission of prior testimony and forfeiture by wrongdoing.[4] I then suggest, in Part II, that forfeiture by wrongdoing serves, in part, to remedy the wrongdoing of defendants who misbehave, whereas admission of prior testimony does not serve a remedial function. As a result, I recommend in Part III that the standard for proving unavailability should not only be different in the two situations, but that it should be significantly lower in the context of forfeiture by wrongdoing. I conclude that once the proper standard is applied, the concept of unavailability loses much of its utility. Courts would do better to focus instead on relevant wrongdoing to determine when forfeiture occurs.
I. Unavailability as a Constitutional Matter
Two situations prompt Sixth Amendment concern with the unavailability of prosecution witnesses: (1) admission of prior testimony and (2) forfeiture by wrongdoing. Admission of prior testimony may include, for example, deposition testimony or testimony from a preliminary hearing. At common law, only death and extreme illness were sufficient to excuse live, in-court testimony of a witness.[5] A witness is obviously unavailable in death, and physical incapacity is a close second.
Barber v. Page[6] is the cornerstone of modern unavailability jurisprudence. In that case, the witness was incarcerated in another state. The prosecution never requested the attendance of the witness, but instead of requiring live testimony, the trial court admitted prior testimony of the witness from a preliminary hearing. The Supreme Court held that because the state did not make a good faith effort to secure the witness’s presence, the witness was not unavailable. The introduction of the witness’s prior testimony therefore violated the Confrontation Clause.
