July 09, 2005

Forfeiture of the right to confrontation?

by Guest Contributor

[Jed Sorokin-Altmann] I've been herding around 15 middle school-aged campers for the past two weeks (getting more exercise in one day that I usually get in a week!), and I've been pretty much coming home, eating dinner, and immediately falling asleep exhausted from running around yelling at them.... :p Hence, I haven't been blogging as frequently as I would under ordinary circumstances. Nevertheless, I came across an interesting decision from the Supreme Judicial Court (SJC) of Massachusetts: Commonwealth v. Edwards, et al., decided on July 1st.

The case deals with whether or not, and if so, in what circumstances, grand jury testimony of an unavailable witness can be used against defendants who prosecutors claim caused the witness to be unavailable. This does not only include cases of threatening a witness or killing a witness or whatnot, but also colluding with witnesses to try to keep them off the stand. The facts in this case, according to Justice Cowin, were as follows:

Three defendants are alleged to have colluded with the Commonwealth's key witness, Jeremy Crockett, to ensure Crockett's unavailability for trial. In particular, the Commonwealth points to a series of telephone calls made by the defendant Jermaine Edwards to Crockett while Edwards was incarcerated at the Suffolk County house of correction at South Bay, and just prior to two scheduled trial dates, in which the two can be heard orchestrating Crockett's leaving the jurisdiction. Crockett ultimately did appear in court, but refused to testify. We follow Federal and State courts that have considered the issue and adopt the "forfeiture by wrongdoing" doctrine whereby a defendant is deemed to have lost the right to object (on both confrontation and hearsay grounds) to the admission of the out-of-court statements of a witness whose unavailability the defendant has played a meaningful role in procuring.

The SJC remanded the case to Superior Court to determine whether or not the defendant did forfeit his right to object on confrontation and hearsay grounds.

I can't say I'm too thrilled with the concept of allowing the grand jury testimony to come in. It could severely prejudice the case against defendants. Nevertheless, I'm not thrilled with the idea of allowing a defendant to profit from unlawful collusion, either. If forced to make a ruling, however, I'd be inclined to exclude the grand jury testimony. I do see Justice Cowin's point, though.

What are your opinions on the matter?

July 9, 2005 09:06 PM | TrackBack
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