Forfeiture by Wrongdoing

​The NMCCA has issued a published opinion in United States v. Becker—actually a ongoing government appeal.

Appellee is charged with assault consummated by a battery, conduct unbecoming an officer and a gentleman, and premeditated murder for allegedly strangling his wife in August 2013, physically and emotionally abusing her over the following two years, and then drugging her and causing her to fall from a seventh-floor apartment window to her death in October 2015.
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The Government seeks to admit certain prior statements by the decedent, Mrs. B., under the forfeiture-by-wrongdoing exception to the Sixth Amendment Confrontation Clause and the hearsay rule. After two Article 39(a), UCMJ, hearings, the military judge ruled some of the statements inadmissible. On the Government’s first appeal, we found the judge’s ruling employed the wrong legal standard and vacated and remanded it for further consideration.

​The military judge on remand reconsidered and adopted the same findings and made the same ruling. The court now sends the case back because the military judge “fail[ed] to consider important facts.” The court addresses forfeiture by wrongdoing as a method to introduce prior statements of the decedent. The court makes the following points when considering the second prong of the exception to hearsay suggested by Giles v. California.

• Multiple intents or motives may be at work and ““the conduct rendering the declarant unavailable need not have been motivated solely by a desire to prevent the declarant from testifying as a witness, so long as it was a motivation.”
• “[T]he intent to cause the declarant’s unavailability as a witness need not be in reference to a particular criminal proceeding, or any proceeding at all for that matter. The intent could be to prevent the witness from testifying in a civil proceeding, such as a divorce or child custody hearing.
• There need not be a criminal investigation or charges pending or even contemplated at the time of the wrongdoing. The court adverts to DV situations where the victim is intimidated not to seek out help.
• Courts use a subjective standard to examine the accused's words and conduct. “[T]he wrongdoer’s intent to cause the declarant’s unavailability as a witness need only be subjectively held; it need not be reasonable in any objective or measurable way.”
• Direct evidence is not always available and so reasonable inferences, and the totality of circumstances may be sufficient.
• Burden. The government has the burden to establish intent by a preponderance.
• Standard of Review. In this Article 62, UCMJ, appeal the court “review[s] the military judge’s decision “directly” and review[s] the evidence “in the light most favorable to the party which prevailed at trial.”

In reviewing additional “facts” the court concludes that “Within the broader context discussed supra, these more immediate circumstances of Mrs. B’s death support by a preponderance of the evidence not only that (1) Appellee intentionally killed Mrs. B., but that (2) his actions were the result of planning and calculation, and that (3) at least part of his intent was to prevent Mrs. B. from causing him any more problems akin to the “living nightmare” she had caused him when she reported her prior allegations of abuse to the authorities.”

This was sufficient to conclude that the ““wrongful act [wa]s performed with an intent to prevent [Mrs. B.] not only from testifying at some formal proceeding, but also from reporting abuse, cooperating with law enforcement, or resorting to outside help.””

There is a dissent which makes several points.

• The majority inferentially overrules Giles v. California, 554 U.S. 353 (2008).
• The Majority’s Facts gleaned from their review of the record are not evidence of appellee’s secondary intent to prevent Mrs. B. from making future testimonial statements.
• The military judge did not fail to consider important facts.

​The facts that the majority characterizes as “important facts” were thus in front of the military judge, twice.

​He is not required to make findings on every possible factoid placed in front of him.The question is not whether we merely disagree with the military judge’s assessment of the evidence, but whether the facts identified by the majority were important enough to render a failure to make findings on them an abuse of discretion.

• The majority creates a different Confrontation “right” for Navy and Marine Corps personnel to that of civilians “or even our Sister Services."

​Cheers, P.C.