Title: Rule 804(b)(6) - The Illegitimate Child of the Failed Liaison Between the Hearsay Rule and Confrontation Clause
Abstract: This article examines Federal Rule of Evidence 804(b)(6) (Forfeiture by Wrongdoing) and calls for its repeal. The article identifies the Rule's flaw: unlike every other hearsay exception, the evidence offered pursuant to the Rule bears no indicia of trustworthiness, allowing serious criminal and important civil cases to be decided on unreliable evidence. The article begins by revealing the historical and analytical underpinning of the rule: an imperfect and uncritical analogy to the Confrontation Clause forfeiture doctrine of the same name, representing the inappropriate conflation of hearsay and Confrontation Clause jurisprudence. Next, based on the recent U.S. Supreme Court cases of Crawford v. Washington and Davis v. Washington an argument is developed that the de-coupling of hearsay and Confrontation Clause doctrine in those cases undermines the doctrinal validity of the hearsay exception. The evils of the Rule are then illustrated by two narratives, one civil and one criminal. Finally the article demonstrates that there exist, other, better-focused and more legitimate methods recognized by the well-established substantive, procedural and evidentiary law to (1) discourage the activity of procuring the absence of witnesses from trial; (2) punish those who would do so; and (3) insure that the hearsay of a witness whose absence has been procured, be admitted only when it is trustworthy.
Publication Year: 2007
Publication Date: 2007-10-22
Language: en
Type: article
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