Recently, the NMCCA decided United States v. Becker, a case about the doctrine of forfeiture by wrongdoing.
Appellant was charged with abusing, and then killing his wife. Pursuant to an interlocutory appeal, the NMCCA considered whether the decedent’s prior statements should be admitted under the doctrine of forfeiture by wrongdoing. In a Per Curiam opinion, the NMCCA found that the military judge abused his discretion by applying the incorrect standard and remanded for further proceedings.
The Military Judge’s Ruling Was Incorrect Because He Applied the Wrong Standard
At the lower court, the Government argued that the doctrine of forfeiture by wrongdoing made admissible decedent’s statement about her prior abuse because (1) Appellant was responsible for her inability to testify as a witness; and (2) he murdered her with the intent to make her unavailable to testify. But, the military judge concluded that it was not “reasonably foreseeable” that Appellant would have been investigated as a result of decedent’s allegations.
However, the NMCCA found that the “reasonably foreseeable” standard was too narrow because it only focused on the subjective intent of the accused to make a witness unavailable to testify. In contrast, the Court applied the Giles standard, which is (1) more inclusive; and (2) consistent with the intended purpose of the doctrine of forfeiture by wrongdoing. Specifically, it considers (1) the accused’s desire to prevent a witness from testifying in a potential criminal trial; and (2) the accused’s desire to prevent the alleged victim from reporting domestic abuse as it is happening. Accordingly, the Court found that the military judge abused his discretion by applying the wrong standard and remanded in light of this decision.
 Judges Gaston, Stephens and Stewart decided the issue.
James Taglienti & Luke Alter
Senior Intern & Intern