Victim’s Statement Admitted Under FRE 804(b)(6) Notwithstanding “Mixed Motives” For The Murder

Fourth Circuit considers “mixed motives” argument on the application of the forfeiture by wrongdoing exception and affirms the admission of the murder victim’s statements even in light of possible alternative bases for the murder, which the circuit concludes is consistent with Supreme Court precedent and the “the functional needs of our criminal justice system,” in United States v. Jackson, _ F.3d _ (4th Cir. Jan. 18, 2012) (No. 11-4858)

FRE 804(b)(6) permits the introduction of a statement of an unavailable witness against "a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness." The scope of this rule continues to evolve in the case law consistent with the Confrontation Clause. The Fourth Circuit recently considered an issue that few other cases have addressed concerning whether statements may be admitted under the rule where there are "mixed motives" for the causing of the unavailability of a witness.

In the case, defendant Jackson was prosecuted for his involvement in a drug distribution conspiracy including for committing murder and firearm offenses. At his trial, the trial court admitted a statement of a murder victim, Johnell Greene. A dispute arose between Jackson and Greene concerning Greene’s distribution of fake drugs. Jackson and another person, Washington, visited Greene. Washington fired one shot at Greene and missed. Greene left without being harmed. He was arrested on other charges and decided to cooperate by providing information about the attempted murder. Washington was arrested and reported to Jackson that Greene “was ‘telling everything’ to the authorities.” Jackson, _ F.3d at _. After Greene was released from custody, he was shot multiple times. Jackson was later convicted on drug charges and sentenced to prison. During his prison term, he was charged with murder of Greene and other drug and firearm offenses. The government moved in limine to admit Greene’s statement about Jackson’s role in the attempted murder. The defendant opposed, arguing that the government failed to show he intended to procure the unavailability of the murder victim based on Supreme Court precedent requiring that "the intent required to be proven must be unqualified" for the exception to apply under the Confrontation Clause. Jackson, _ F.3d at _ (citing Giles v. California, 554 U.S. 353, 359 (2008)). The trial court “found that Jackson’s desire to silence Greene was a ‘precipitating’ and ‘substantial reason’ for the murder and concluded that any other motives for killing Greene did not preclude application of the forfeiture-bywrongdoing exception.” Jackson, _ F.3d at _. The victim’s statement was admitted. The jury convicted the defendant as charged.

On appeal, the central issue was whether the victim’s statement could be admitted based on “mixed motives.” Specifically, the defendant:

contended that the forfeiture-bywrongdoing exception to the Confrontation Clause requires that a defendant make a witness unavailable with the sole motivation of preventing the witness from testifying. He argued that while Federal Rule of Evidence 804(b)(6) may permit forfeiture even if a defendant has secondary motivations for murdering a witness, the Confrontation Clause sets a higher bar and permits forfeiture only when a defendant was motivated exclusively by a desire to silence a witness. Jackson argued that he had additional reasons for killing Greene, to wit, preventing Greene from harming the Lindsay Drive drug operation and exacting revenge on Greene for robbing Garian "Boo" Washington, and that the forfeiture-by-wrongdoing exception therefore did not apply.

Jackson, _ F.3d at _.

In rejecting this argument, the Fourth Circuit held “that so long as a defendant intends to prevent a witness from testifying, the forfeiture-by-wrongdoing exception applies even if the defendant also had other motivations for harming the witness.” Jackson, _ F.3d at _. As the circuit explained:

We find no support in controlling precedent for Jackson’s restrictive view of the forfeiture-by-wrongdoing exception, and, in accord with several other courts that have addressed the issue, we decline to provide criminal defendants with an opportunity to avoid the exception by adducing some additional
motive for their misconduct.

Jackson, _ F.3d at _. The circuit concluded that the Supreme Court precedent did not alter the admission of statements under FRE 804(b)(6) under the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36 (2004); see also Giles v. California, 554 U.S. 353, 359 (2008). Additionally, the application of the exception was consistent with co-conspirator liability under Pinkerton v. United States, 328 U.S. 640 (1946). Jackson, _ F.3d at _ (citing United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012) (noting application of the Pinkerton standard to the forfeiture-by-wrongdoing exception)).

In addition to its construction and application of Supreme Court cases, the circuit also found support in other cases, including:

  • First Circuit: United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) (in pre-804(b)(6) case, noting "it is sufficient in this regard to show that the evildoer was motivated in part by a desire to silence the witness; the intent to deprive the prosecution
    of testimony need not be the actor’s sole motivation") (emphasis in original), cert. denied, 519 U.S. 1118 (1997)
  • D.C. Circuit: United States v. Martinez, 476 F.3d 961, 966 (D.C. Cir. 2007) (concluding that an exclusive-intent requirement would have the "perverse consequence" of "allowing criminals to murder informants and thereby prevent admission of the informants’ statements—just so long as the criminal could show that the intent was retaliation (which the criminal almost always could do)")
  • California: People v. Banos, 178 Cal. App. 4th 483, 100 Cal. Rptr. 3d 476, 493 (Cal. Ct. App. 2009) ("It strikes us as illogical and inconsistent with the equitable nature of the [forfeiture-by-wrongdoing exception] to hold that a defendant who otherwise would forfeit confrontation rights by his wrongdoing (intent to dissuade a witness) suddenly regains those confrontation rights if he can demonstrate another evil motive for his conduct."), cert. denied, 130 S. Ct. 3289 (2010)

The circuit also noted the defense argument was inconsistent with:

the functional needs of our criminal justice system. Accepting Jackson’s view would play roulette with the safety of cooperating witnesses, who often face immense stress and danger when testifying against co-conspirators and other criminal defendants. Armed with multiple motives for their actions, defendants might be tempted to murder, injure, or intimidate witnesses before trial and then invoke their constitutional right to confrontation to ensure that those witnesses’ statements are never heard in court. Such an outcome would be fundamentally at odds with the axiom that "no one should be
permitted to take advantage of his wrong."

While the Confrontation Clause is fundamental to our conception of a fair and just system of criminal adjudication, so also is the vigorous and candid participation of relevant witnesses. Accepting Jackson’s proposition would throw the system off kilter by hindering factual development in criminal prosecutions. That, too, would prevent the adversarial process from playing out as the Framers intended.

Jackson, _ F.3d at _ (quoting Giles, 554 U.S. at 366).

Based on the findings of the trial court, the circuit affirmed the admission of the murder victim’s statement under the Confrontation Clause. For other cases applying the forfeiture by wrongdoing exception, see

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