Abstract
This article argues that the "Forfeiture by Wrongdoing" exception to the hearsay rule is utterly lacking in any of the traditional indicia of trustworthiness, which are the universal hallmark of all admissible hearsay evidence pursuant to the Federal Rules of Evidence. Further, we take the position that this rule is an unnecessary systemic check against civil and criminal litigants who intentionally subvert the justice system by procuring the unavailability of witnesses by wrongdoing. Other sanctioning mechanisms which do not allow criminal and civil justice decisions be influenced or determined by untrustworthy evidence exist and are better tailored to the deterrence and punishment functions purportedly performed by Rule 804(b)(6). Part II of this article will examine the historical underpinnings of the law of hearsay and its exceptions, and the sometimes overlapping, but different, right to confront one's accusers in a criminal case as governed by the Sixth Amendment to the United States Constitution. Although the forfeiture doctrine made its way into hearsay law by an imperfect and uncritical, though superficially appealing, analogy to the Confrontation Clause forfeiture doctrine, the Supreme Court's recent decoupling of any relationship between the Confrontation Clause and the hearsay rule makes clear that the analogy was inappropriate. We will conclude, based in part on this Supreme Court analysis, that the determination of whether a criminal defendant can cross-examine a hearsay declarant or forfeits that right by misconduct in no way insures the reliability of hearsay evidence so as to make it admissible in criminal cases. Of course, the Confrontation Clause is inoperative in civil cases and provides no hearsay referent in civil cases. We will take the position that once Confrontation Clause rights, and the reliability of some hearsay, are recognized as separate concepts, Rule 804(b)(6) is an exception that fails to accomplish the indispensable function of the hearsay rule (and its exceptions) in keeping from the jury evidence which bears no imprint or even suggestion of reliability. As currently constructed, Rule 804(b)(6) should be eliminated. Part III will illustrate the current operation of FRE 804(b)(6) by tracing two hypothetical situations, one civil and one criminal, which demonstrate the over-breadth of the exception as a means of punishing wrongdoers who intentionally procure the unavailability of witnesses. We will question whether the sanctioning effect of the rule makes sense in the federal rules scheme for admitting and excluding evidence by examining the effect of this unique "exception" on the reliability of verdicts. Part IV will enumerate the alternatives for sanctioning these unavailability- inducing wrongdoers which currently exist in the criminal and civil justice system and argue that these sanctions are better tailored to remedy the wrong. We will conclude that Rule 804(b)(6) over-reaches in its zeal to punish these wrongdoers. The current construction of Rule 804 (b)(6), which allows the admissibility of potentially untrustworthy evidence takes the place of and supersedes other methods, better designed and more effectively focused, in which conduct that triggers the sanction of the rule can be more appropriately dealt with in both the civil and criminal justice systems. We will conclude that Federal Rule 804(b)(6) should be repealed.
Recommended Citation
Anthony Bocchino and David Sonenshein,
Rule 804(b)(6) - The Illegitimate Child of the Failed Liaison between the Hearsay Rule and Confrontation Clause,
73 Mo. L. Rev.
(2008)
Available at: https://scholarship.law.missouri.edu/mlr/vol73/iss1/3