We certify this appeal to the Wisconsin Supreme Court to decide a question involving the “forfeiture by wrongdoing” doctrine. Under this doctrine, testimonial statements, which would otherwise be barred under the Confrontation Clause of the Sixth Amendment if the declarant does not appear at trial, may be admitted nonetheless if the reason the declarant does not appear is the result of wrongdoing by the defendant. In the typical case, this doctrine is applied when a defendant prevents a witness from testifying at the proceeding at which the State seeks to admit the out-of-court statement. ….
The question we certify today is whether the “forfeiture by wrongdoing” doctrine applies at a homicide trial where the declarant is the homicide victim, but where the defendant killed the declarant to prevent him or her from testifying at a separate proceeding. ….
An additional and closely related question we certify is whether preventing the declarant from testifying must be the defendant’s primary purpose for the wrongful act that prevented the declarant from testifying in that separate proceeding.
Reinwand was charged with killing Meister, the father of Reinwand’s grandchild. Meister and Reinwand’s daughter were in a dispute about placement of the child and, after mediation failed, were likely headed to litigation. Meister told various people he thought Reinwand was going to harm or kill him and that if he was found dead Reinwand should be “looked into.” (Certification at 2-3). The circuit court granted the state’s request to use those statements at Reinwand’s homicide trial, finding Reinwand forfeited his confrontation right because there was evidence he killed Meister to prevent him from testifying in the placement proceeding. (Id. at 3-4). It was no matter to the circuit court that a placement proceeding hadn’t even been initiated when Meister was killed, nor that, as the court of appeals notes (id. at 2), Reinwand wouldn’t be a party to that proceeding, so that Meister wouldn’t have been testifying “against” Reinwand.
SCOW’s last foray into forfeiture by wrongdoing was State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518. The court adopted a broad version of the doctrine that allowed use of testimonial statements whenever the defendant caused the absence of the witness. But Jensen got it wrong, as a scant 16 months later the U.S. Supreme Court rejected that version of the doctrine in Giles v. California, 554 U.S. 353 (2008). Instead, Giles held, the doctrine “permit[s] the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant” only when there has been “a showing that the defendant intended to prevent a witness from testifying.” 554 U.S. at 359-61 (emphasis added). As the court of appeals puts it, before Giles statements of a defendant’s homicide victim, implicating the defendant in the homicide, were often admitted under the forfeiture by wrongdoing doctrine, as happened in Jensen. “We understand the teaching of Giles to be that this should not occur in the normal course because a homicide is not typically designed to prevent the victim from testifying at a trial addressing the very same homicide.” (Certification at 6, citing Giles, 554 U.S. at 359-60, 363-64, 369 (emphasis added)).
So what intent on the part of the defendant does the state have to prove for the doctrine to apply? The state argues the doctrine doesn’t require a showing the defendant intended to keep the victim from testifying against the defendant; rather, it is enough to show the defendant intended the prevent the victim from testifying in any proceeding, even one in which the defendant isn’t a party. (Certification at 6-7). For this the state relies on federal decisions, all of which predate Giles. (Certification at 7-9). The court of appeals found a single state court decision supporting the state, Vasquez v. People, 173 P.3d 1099 (Cold. 2007), but that also came out before Giles. (Certification at 9-11).
Reinwand, for his part, relies on Giles and argues the doctrine can’t apply in this case because a placement proceeding had not been filed at the time of Meister’s murder, so he couldn’t have killed Meister with the intent to silence him from testifying in a proceeding that was not and might never be initiated. He also asserts that the doctrine requires that procuring the witness’s unavailability must be the “primary purpose,” as opposed to just one reason, for the defendant’s wrongful act. (Certification at 9).
Because theses questions haven’t been addressed in the lower courts since Giles the court of appeal is seeking the supreme court’s guidance. We’ll see if SCOW wants to take them on, and if it does whether it can do a better job than it did in Jensen of figuring out the forfeiture by wrongdoing doctrine.