Using Circumstantial Evidence For FRE 804(b)(6) Forfeiture By Wrongdoing

In kidnapping trial, admitting victim's prior statements to police about what the defendant did to her, after she declined to testify about the statements contending that she could not remember, under the FRE 804(b)(6) (Forfeiture by Wrongdoing hearsay exception) because the defendant "successfully procured" the witness's "unavailability by incessant pretrial manipulation" in which he "worked tirelessly for seven months to persuade" the victim "to recant," in United States v. Jonassen, _ F.3d _ (7th Cir. July 16, 2014) (No. 13-1410)

Under the FRE 804(b)(6) Forfeiture By Wrongdoing hearsay exception, a court may admit 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 Seventh Circuit recently examined a case in which the evidence of wrongfully causing the witness's absence was entirely circumstantial, which posed minimal difficulty in applying the hearsay exception.

The Victim's Statement

In the case, the defendant "kidnapped his 21–year–old daughter" E.J., taking her to a near-by state. There he "held her against her will and sexually assaulted her." After two days of captivity she was able to "escape ... fleeing naked from the motel, rope still tied around her leg, desperately screaming for help." The defendant followed and eventually recaptured her as police responded to a 911 call regarding the commotion. The officers broke them up, arrested the defendant, and then:

sought to assist E.J., who was huddled in the back of the car crying. E.J. told Officer Flora Ryan that Jonassen had taken her to Indiana against her will because he thought she was going to have sex with an older man. When asked if she was raped, she first shook her head no. But she told the officer that she had been tied up in the motel room and nodded when asked if her father had sex with her, and the officer observed the rope still around her ankle. After the on-scene interview with the police, E.J. was taken to the hospital where she was examined by nurse Janice Ault, who observed abrasions, cuts, a rash, and bruises all over her body. E.J. also told Ault that Jonassen had taken her from her home in Missouri against her will.
Jonassen, _ F.3d at _.

Victim's Testimony Forgotten

Up to the day of the defendant's trial the victim had "cooperat[ed] with the government and had talked to investigators and prosecutors on several occasions." These contacts appeared to reinforce what she had told officers on the day of the incident, as well as supply new details about the kidnapping. But this changed as the trial commenced because she would confirm none of this as a witness in the trial. At trial, she

refused to answer any questions put to her by the prosecutor. Instead, she answered every question with “I don't remember” or “not that I know of” or “I don't know what you are talking about” or a similar phrase. She responded in this way even when asked simple questions about her age, her date of birth, her nickname, and her parents' names. When the prosecutor asked if she was refusing to answer because she feared her father, she answered, “I'm not afraid of anything or anybody.”
Jonassen, _ F.3d at _.

Absent the victim's evidence of the crime, the government sought to have the victim's statements to police admitted under the FRE 804(b)(6) Forfeiture By Wrongdoing hearsay exception. While the jury was excused, the government sought to show that the defendant had procured the unavailability of the victim as a witness. The prosecutor did this with evidence of the defendant's "elaborate effort to get E.J. to recant, including the phone calls and letters playing on her emotions with guilt, bribery, and various forms of intimidation." More specifically, the trial court heard that:

The day after his arrest, Jonassen began what would be an extended campaign to get E.J. to retract her statements to the police. Ignoring a no-contact order prohibiting any communication with E.J.—including by letter, phone, or intermediary—Jonassen contacted her both directly and through several family members. Over a seven-month period, Jonassen made more than 75 calls and sent 20 letters attempting to dissuade E.J. from testifying. As the district judge characterized the calls and letters, Jonassen variously used guilt, bribery, veiled threats, and other forms of psychological intimidation in a persistent effort to get E.J. to recant.
Jonassen, _ F.3d at _.

Forfeiture By Wrongdoing Applied By The Trial Court

Based on the evidence presented, the trial judge granted the motion to admit the victim's prior statements to police about the crime. As later described in the opinion, "the judge noted that E.J.'s testimony was unlike anything he had seen in over 40 years on the bench. He concluded that E.J.'s performance on the witness stand—professing a 'total lack of recall of anything'—made her unavailable as a witness within the meaning of Rule." Jonassen, _ F.3d at _ (citing FRE 804(a)(3) (a declarant is considered unavailable if she “testifies to not remembering the subject matter”)). The judge concluded that her prior statements to police were admissible under the exception and allowed the government to present that evidence to the jury - specifically the victim's statements to police and a "signed, handwritten statement from E.J. describing her abduction." In addition, the prosecution presented "testimony from eyewitnesses, investigators, Alice Jonassen, and Janice Ault, along with recordings of Jonassen's phone calls from jail, surveillance video from the liquor store, and physical evidence from the motel." Jonassen, _ F.3d at _.

Seventh Circuit Review: Foundational Requirement For FRE 804(b)(6)

The jury convicted the defendant. He appealed, challenging the admission of the victim's prior statements under the Forfeiture By Wrongdoing exception. The Seventh Circuit rejected this challenge. The circuit noted that the government had satisfied the foundational elements for applying the hearsay exception. This foundation required showing:

  1. “that the defendant engaged or acquiesced in wrongdoing,"
  2. "that the wrongdoing was intended to procure the declarant's unavailability, and"
  3. "that the wrongdoing did procure the unavailability.”
Jonassen, _ F.3d at _ (citing United States v. Scott, 284 F.3d 758, 762 (7th Cir. 2002)).

The circuit concluded that these elements were easily satisfied in the defendant's case because:

The record easily supports the court's conclusion that Jonassen successfully procured E.J.'s unavailability by incessant pretrial manipulation. As we have recounted, Jonassen worked tirelessly for seven months to persuade E.J. to recant. His tactics ranged from pleas for sympathy to bribes. He bombarded E.J. with phone calls, letters, and messages delivered through several family members. All this effort was in clear violation of a court order and directed at a young woman who was susceptible to his manipulation: According to [victim's mother] Alice Jonassen's testimony at the hearing, E.J. had long been subjected to abuse by her father. The evidence overwhelmingly supports the judge's conclusion.
Jonassen, _ F.3d at _ .

The circuit dismissed the defense contention that such a showing required direct evidence of the elements for the hearsay exception, such as that the victim's testimony "that her father's actions led to her feigned memory loss." This response does not undermine the judge's ruling. The evidentiary foundation for admitting hearsay under Rule 804(b)(6) will almost always be circumstantial, and it would be odd to expect the witness herself to corroborate it" the circuit noted.


The Jonassen case provides a recent illustration of applying the foundational test for the forfeiture by wrongdoing hearsay exception. The case demonstrates the circumstantial nature of the evidence often relied upon to justify applying the exception. For more on the Forfeiture By Wrongdoing Exception, see coverage of this issue in the Federal Evidence Blog.


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