Title: Rule 804(b)(6) - The Illegitimate Child of the Failed Liaison between the Hearsay Rule and Confrontation Clause
Abstract: I. INTRODUCTION Federal Rule of Evidence 804(b)(6) (1) is a rule with a laudable purpose but a misperceived pedigree and a dangerous effect. Entitled Forfeiture by Wrongdoing, the Rule purports to be the latest exception to the rule precluding hearsay. Unlike the other thirty hearsay exceptions, however, it admits out-of-court statements bearing no indicia of trustworthiness. (2) In fact, this hearsay exception is an unfocused sanction imposed on a party who intentionally makes a hearsay declarant unavailable. This sanction allows for the admission of any relevant statement made by the absent hearsay declarant irrespective of the trustworthiness of that statement. Moreover, the admission of such unreliable hearsay can provide the basis for a verdict and the imposition of the harshest criminal penalties or civil damages. The adverse effect of having cases decided on untrustworthy hearsay is facilitated by the operation of Rule 104, which permits the admission of such evidence on a minimal predicate showing that a party has procured the hearsay declarant's unavailability. When making the determination as to whether a party has procured a hearsay declarant's unavailability by wrongdoing, the trial judge need only find that a reasonable juror could find the wrongdoing by a preponderance of the evidence. (3) Such finding may be based on entirely inadmissible evidence. (4) The combination of the unreliability of FRE 804(b)(6) evidence, the fact that FRE 804 does not require any indicia of the reliability, combined with the low quantum of proof required by FRE 104 allows the liberty and property interests of parties to be decided by evidence that may very well be untrustworthy. As a result we will argue that the policy of FRE 804(b)(6) is unwise and contrary to the truth-seeking function of the criminal and civil trial because it allows the introduction of evidence which hundreds of years of Anglo-American legal experience have shown to be unreliable. Indeed, though not reaching the constitutional Due Process question, the Supreme Court noted in Bridges v. Wixon that allow[ing] men to be convicted on un-sworn testimony of witnesses ... [is] a practice which runs counter to the notions of fairness on which our legal system is founded. (5) 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. (6) 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. (7) 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 (8) 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. …
Publication Year: 2008
Publication Date: 2008-01-01
Language: en
Type: article
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