Circuit declines to consider application of forfeiture by wrongdoing exception under FRE 804(b)(6) In United States v. Wright, 536 F.3d 819 (8th Cir. Aug. 4, 2008) (No. 07-1439), deciding that a deceased witness statement concerning murder participants did not violate the confrontation clause since the statement was not “testimonial.”
On Confrontation Clause questions, the Eighth Circuit emphasized the importance of the threshold inquiry in determining whether the statement of a non-testifying witness is “testimonial” or not. The Confrontation Clause applies to “testimonial” statements.
Defendant Wright was prosecuted on several drug and firearm counts. On one count, he was charged with aiding and abetting two others in shooting Conaway and Hill during an attempted PCP robbery. At trial, Conaway, who cooperated with the government, testified that Birks, who was murdered later in the evening after the attempted robbery, informed him who the shooting participants were.
The circuit concluded there was no Confrontation Clause violation in admitting the statement of the deceased declarant since the statement was not “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004). While the contours of what constitutes a “testimonial” statement still remain to be developed, the Court noted that “testimonial” statements are typically obtained by the “[i]nvolvement of government officers in the production of testimony with an eye toward trial….” Crawford, 541 U.S. at 56 n.7. Statements among acquaintances without any government involvement are not “testimonial.” Crawford, 541 U.S. at 51 (“An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”); see also Giles v. California, 128 S. Ct. 2678, 2692-93 (2008) (noting, in dicta, that “[s]tatements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment”).
After noting recent Supreme Court cases, the circuit was guided by its prior similar decision in United States v. Johnson, 495 F.3d 951, 976 (8th Cir. 2007), where comparable statements concerning murders made between two prisoners were not testimonial. Because the challenged statement was not “testimonial,” there were no Confrontation Clause issues in admitting the statement.
The circuit did not consider the forfeiture by wrongdoing hearsay exception since the defendant had not raised the issue before the trial court. However, the circuit suggested that “the common law exception at issue in Giles is not necessarily co-extensive with the forfeiture-bywrongdoing hearsay exception codified in Rule 804(b)(6) of the Federal Rule of Evidence.” Wright, 536 F.3d at 823 n.3. In Giles v. California, 554 U.S. _, 128 S.Ct. 2678 (2008), the Supreme Court recently considered the forfeiture by wrongdoing exception under the Confrontation Clause. (Giles was considered in two prior blog posts: After Giles Will Congress Revisit The Forfeiture By Wrongdoing Rule? and Giles, the Confrontation Clause and Forfeiture by Wrongdoing.
Ironically, the analysis of the Eighth Circuit echoed a line of questioning of Justice Ginsberg during the oral argument on Giles v. California, considering the forfeiture by wrongdoing exception. In that case, Justice Ginsburg observed that if the victim’s statement had been made to a friend, it would not be “testimonial,” under Crawford. However, since the victim gave the statement to police it was “testimonial.” Giles Transcript.
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