Donaldson: A Reliable and Clear-Cut Determination

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A Reliable and Clear-Cut Determination:

Is a Separate Hearing Required to Decide
When Confrontation Forfeiture by
Wrongdoing Applies?
TIM DONALDSON*
ver a century ago, the U.S. Supreme Court decided in Reynolds v.

United States that a defendant may forfeit the right to confront an
adverse witness if the defendants wrongful conduct kept the
witness from appearing at trial to testify.1 It more recently clarified that a
defendants wrongful conduct must have been committed for the purpose
of preventing testimony for forfeiture to apply.2 The Supreme Court has
not, however, specified the procedure by which forfeiture determinations
should be made3 and Circuit Courts of Appeals are split. The Second and
Tenth Circuits have held that a trial court must hold an evidentiary hearing
outside the presence of a jury to make forfeiture determinations. 4 However,
the First, Fourth, Eighth, and D.C. Circuits have ruled that a separate
City attorney and municipal prosecutor, Walla Walla, Washington, 1996present;

municipal court judge pro tempore, College Place, Washington, 20062013; president,
Washington State Association of Municipal Attorneys, 2014present; admitted to bar
associations in Washington (1987), Oregon (1992), and Idaho (1994); J.D., magna cum laude,
Gonzaga University School of Law, 1987; B.A., Whitman College, 1984. The author thanks
Vern Davidson, Bob Fontenot, and Timothy Kaufman-Osborn.
1
98 U.S. 145, 158 (1878).

Giles v. California, 554 U.S. 353, 35968 (2008).
3 See Davis v. Washington, 547 U.S. 813, 833 (2006) (emphasis added) (commenting that the
Supreme Court took no position on the standards necessary to demonstrate forfeiture but that
hearsay evidence may be considered when resolving forfeiture issues if a hearing on
forfeiture is required . . . ).
2
United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982); United States v. Balano, 618
F.2d 624, 629 (10th Cir. 1979), overruled by Richardson v. United States, 468 U.S. 317, 32526
(1984), as recognized in United States v. Willis, 102 F.3d 1078, 1081 (10th Cir. 1996).
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hearing is not required if a judge can make the requisite findings regarding
forfeiture from the evidence presented during the course of trial. 5
The issue is ripe for resolution. The Supreme Court sank a raft of
confrontation exceptions a decade ago in Crawford v. Washington.6 Prior to
Crawford, an out-of-court statement made by a missing witness could be
admitted in a criminal trial if the witness was unavailable, the statement
fell within a firmly rooted hearsay exception, or there were particular
indicia of its reliability.7 Crawford overruled longstanding precedent upon
which many exceptions were basedit held with very limited deviation
that testimonial statements made by an absent witness may only be used at
trial if it is sufficiently established that the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness.8
Thereafter, only two exceptions remained afloat. The Crawford majority
indicated that it might still accept a dying declaration exception. 9 It also
accepted a rule of forfeiture by wrongdoing which extinguishe[d]
confrontation claims on essentially equitable grounds. 10 That is, one who
obtains the absence of a witness by wrongdoing forfeits the constitutional
right to confrontation.11 Recourse to the forfeiture-by-wrongdoing
doctrine was less necessary prior to Crawfordit was easier to admit outof-court statements under the confrontation test overruled by Crawford
than it was to show that the absence of a witness was wrongfully procured
5 United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005); United States v. Emery, 186 F.3d
921, 926 (8th Cir. 1999); United States v. White, 116 F.3d 903, 91416 (D.C. Cir. 1997); United
States v. Houlihan, 92 F.3d 1271, 1281 n.5 (1st Cir. 1996). The Third Circuit has also indicated
in an unpublished opinion that it may not require a pretrial hearing for making forfeiture
determinations. United States v. Baskerville, 448 F. Appx. 243, 24950 (3d Cir. 2011).
6 See generally Crawford v. Washington, 541 U.S. 36, 6065 (2004) (abandoning a
confrontation test that had allowed prosecutorial use of reliable hearsay while discussing
and criticizing the capacity of that test to unpredictably create a variety of exceptions
dependent upon each individual judges subjective notions of reliability).
7
Ohio v. Roberts, 448 U.S. 56, 66 (1980), overruled by Crawford, 541 U.S. at 6069.
Crawford, 541 U.S. at 4266.
9 Id. at 56 n.6. See generally Tim Donaldson & J. Preston Frederickson, Dying to Testify?
Confrontation v. Declarations in Extremis, 22 REGENT U. L. REV. 35, 4658 (2009) (tracing the
history of the dying declaration rule).
10 Crawford, 541 U.S. at 62.
11 Davis v. Washington, 547 U.S. 813, 833 (2006) (citations omitted). See generally Tim
Donaldson, Combating Victim/Witness Intimidation in Family Violence Cases: A Response to Critics
of the Forfeiture by Wrongdoing Confrontation Exception Resurrected by the Supreme Court in
Crawford and Davis, 44 IDAHO L. REV. 643, 65365 (2008) (discussing acceptance and
development of forfeiture-by-wrongdoing doctrine as a confrontation exception).
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A Reliable and Clear-Cut Determination
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by a defendant.12 As numerous confrontation exceptions perished under

the waves of Crawford, interest intensified on those that survived.
In the decade since Crawford was decided, most jurisdictions have
adopted or reaffirmed a confrontation forfeiture principle, focusing
primarily upon the substantive standards for forfeiture.13 For example,
Giles v. California resolved a split over whether intent-to-silence a witness is
a prerequisite to forfeiture.14 An equally important question, however,
involves the method by which forfeiture determinations are made. For
instance, should a judge hear forfeiture evidence outside the presence of a
jury since resolution of the issue may involve consideration of additional
wrongdoing beyond the crime for which a defendant is charged, or is the
question so intertwined with the remainder of a case that it is a waste of
judicial resources to require a separate hearing to decide? The
disagreement among the Circuit Courts of Appeals upon the issue may
eventually need to be resolved by the Supreme Court, and the renewed
interest in and use of the forfeiture-by-wrongdoing doctrine will likely
increase pressure to answer the question sooner rather than later.
This Article examines both sides of the split. It concludes that forfeiture
determinations under the Giles standard should be made in an ancillary
hearing outside the presence of a jury, except in those instances where
other admissible evidence has already been introduced at trial which
sufficiently establishes forfeiture.
I.
Jurisdictions Which Require a Separate Evidentiary Hearing
One of the leading modern cases on confrontation forfeiture by

wrongdoing is United States v. Mastrangelo.15 In Mastrangelo, the Second
Circuit Court of Appeals held that a defendants involvement in the
murder of a witness was misconduct that prevented the defendant from
asserting his confrontation right against admission of testimony previously
12
Davis, 547 U.S. at 833.

See New Jersey v. Byrd, 967 A.2d 285, 29596 (N.J. 2009) (collecting cases).
14 See generally Tim Donaldson & Karen Olson, Classic Abusive Relationships and the
Inference of Witness Tampering in Family Violence Cases After Giles v. California, 36 LINCOLN L.
REV. 45, 4647 (2008).
15 693 F.2d 269 (2nd Cir. 1982). It is the case upon which the state of New York and other
jurisdictions base their procedures. E.g., Holtzman v. Hellenbrand, 460 N.Y.S.2d 591, 597 (N.Y.
App. 1983); Tennessee v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006) (citing United States v. Dhinsa,
243 F.3d 635, 65354 (2d Cir. 2001) (construing Mastrangelo requirements)). But see New York
v. Geraci, 649 N.E.2d 817, 82123 (N.Y. 1995) (adopting variations to Mastrangelo regarding
burden of proof). It is also a principal case cited as a basis for the codification of the
confrontation forfeiture rule by FED. R. EVID. 804(b)(6). H.R. DOC. NO. 10569 (U.S. Supreme
Court Order of Apr. 11, 1997, p. 22) (Advisory Committee note).
13
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given by the deceased witness[a]ny other result would mock the very
system of justice the confrontation clause was designed to protect.16 The
Mastrangelo court concluded that a preliminary hearing must be conducted
in accordance with evidentiary rules to determine whether a defendants
misconduct waived confrontation:
Since Mastrangelos possible waiver of his sixth amendment
rights is a preliminary question going to the admissibility of
evidence, the hearing will be governed by Fed. R. Evid. 104(a),
which states that the exclusionary rules, excepting privileges, do
not apply to such proceedings. Thus, hearsay evidence, including
[the witnesss] grand jury testimony, will be admissible, as will
all other relevant evidence.17
The Second Circuit subsequently clarified that in addition to the hearing, a

trial court should undertake a balancing of probative value against
prejudicial effect in accordance with Fed. R. Evid. 403 in order to avoid
the admission of facially unreliable hearsay.18 This additional requirement
was adopted to alleviate due process concerns about a conviction being
potentially based upon unreliable evidence when the forfeiture doctrine
overrides protections afforded by the Confrontation Clause and hearsay
rule.19 The court confirmed its requirements in United States v. Dhinsa, and
further explained that a trial courts findings after utilizing such procedure
will not be disturbed on appeal unless they are clearly erroneous. 20
State courts that have addressed the issue have relied upon the Second
Circuits analysis and rulings regarding the separate hearing requirement.21
The Massachusetts Supreme Judicial Court held in Commonwealth v.
Edwards that both parties should be allowed to present evidence at such
hearings, including live testimony, but noted that the hearings were not
intended to become a mini-trial.22 In Vasquez v. Colorado, the Supreme
16
Mastrangelo, 693 F.2d at 273.

Id.
18 United States v. Thai, 29 F.3d 785, 814 (2d Cir. 1994); see also United States v. Thevis, 665
F.2d 616, 633 n.17 (5th Cir. 1982). But see United States v. White, 116 F.3d 903, 913 (D.C. Cir.
1997) (indicating that a defendant must move for exclusion under Federal Rule of Evidence
403 before error can be predicated on a trial courts failure to do so).
17
19
See United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992).
United States v. Dhinsa, 243 F.3d 635, 65354 (2d Cir. 2001); see also Reynolds v. United
States, 98 U.S. 145, 159 (1878) (holding that a forfeiture-by-wrongdoing determination will not
be disturbed on appeal unless the error is manifest).
20
21 Arizona v. Valencia, 924 P.2d 497, 502 (Ariz. Ct. App. 1996); Connecticut v. Henry, 820
A.2d 1076, 1087 (Conn. App. Ct. 2003); Kansas v. Gettings, 769 P.2d 25, 29 (Kan. 1989);
Tennessee v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006); see also Holtzman v. Hellenbrand, 460
N.Y.S.2d 591, 597 (N.Y. App. Div. 1983).
22
830 N.E.2d 158, 174 (Mass. 2005).
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Court of Colorado succinctly explained the basic framework utilized with

variations by jurisdictions that have adopted a hearing requirement:
We also join the jurisdictions that require an evidentiary hearing
before a determination of forfeiture can be made. Outside the
presence of the jury, the prosecution shall have the opportunity
to prove by a preponderance of the evidence the elements of the
doctrine of forfeiture by wrongdoing. Because the defendants
possible forfeiture of his confrontation rights is a preliminary
question going to the admissibility of evidence, the hearing will
be governed by CRE 104(a), which states that the determination
shall not be bound by the rules of evidence except those with
respect to privileges. Thus hearsay evidence, including the
unavailable witnesss out-of-court statements, will be admissible.
The trial courts findings at the hearing will not be disturbed
unless they are clearly erroneous.23
The New Jersey Supreme Court followed suit post-Giles by adopting a

hearing requirement, further ruling that [t]he hearing must be conducted
in the presence of counsel and defendant, and the defendant can only be
excluded from the hearing for extraordinary reasons that must be
articulated on the record.24
Prior to Mastrangelo, the Tenth Circuit established another line of
authority for a hearing requirement in United States v. Balano.25 The court in
Balano held that a defendants threats against the life of a witness waived
any confrontation objection to admission of out-of-court statements made
by the witness.26 Like the Mastrangelo court, it opined: [t]o permit the
defendant to profit from such conduct would be contrary to public policy,
23
173 P.3d 1099, 1105 (Colo. 2007); cf. Illinois v. Stechly, 870 N.E.2d 333, 353 (Ill. 2007)
(remanding for a forfeiture hearing with directions about how to the conduct the hearing, but
without expressly requiring a hearing in all cases); Parker v. Kentucky, 291 S.W.3d 647, 66970
(Ky. Ct. App. 2009) (requiring an evidentiary hearing outside the jurys presence and
providing guidance about how it should be conducted); Smiley v. Maryland, 84 A.3d 190, 198201 (Md. Ct. Spec. App. 2014) (addressing details of a Maryland hearing requirement adopted
by statute); Utah v. Poole, 232 P.3d 519, 526, 52728 (Utah 2010) (noting that an evidentiary
hearing will be necessary in most cases and endorsing the model in which such hearings are
conducted outside the presence of a jury).
24
New Jersey v. Byrd, 967 A.2d 285, 303 (N.J. 2009); accord Grayton v. Ercole, No. 07CV
0485, 2009 WL 2876239, at *14 (E.D.N.Y. Sept. 8, 2009); Perkins v. Herbert, 537 F. Supp. 2d
481, 497501 (W.D.N.Y. 2008), revd on other grounds People v. Herbert, 596 F.3d 161 (2d Cir.
2010) (declining to address hearing presence arguments). But see People v. Perkins, 691
N.Y.S.2d 273, 27576 (N.Y. Sup. Ct. 1999).
25
618 F.2d 624, 629 (10th Cir. 1979), overruled on other grounds by Richardson v. United
States, 468 U.S. 317, 32526 (1984), as recognized in United States v. Willis, 102 F.3d 1078, 1081
(10th Cir. 1996).
26
Balano, 618 F.2d at 62829.
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common sense and the underlying purpose of the confrontation clause.27

It also concluded that a hearing outside a jurys presence was required as a
prerequisite to admission.28 The Tenth Circuit, however, based its
conclusion more closely upon the right of confrontation itself, writing:
[W]e do not wish to emasculate the Confrontation Clause merely
to facilitate government prosecutions. Thus, a prima facie
showing of coercion is not enough. We hold, therefore, that
before permitting the admission of grand jury testimony of
witnesses who will not appear at trial because of the defendants
alleged coercion, the judge must hold an evidentiary hearing in
the absence of the jury and find by a preponderance of the
evidence that the defendants coercion made the witness
unavailable.29
The rationales expressed by the Tenth and Second Circuits therefore,

are slightly different, but they may not be that far apart. Although the
Mastrangelo court appeared to base its ruling on evidentiary rule
requirements, a federal district court has opined that it is also grounded
upon constitutional concerns. In La Torres v. Walker, the court explained
that [b]ecause the right to confrontation is critical, the Second Circuit
requires that an evidentiary hearing be held to determine if the defendant
was in fact responsible for the unavailability of the witness and
consequently waived his Sixth Amendment right.30
II. Jurisdictions in Which No Separate Hearing is Required
Trial judges traditionally have discretion over the procedures they use
to determine questions regarding the admissibility of evidence. 31 The D.C.
Circuit Court of Appeals therefore concluded in United States v. White that a
trial court could validly borrow the method utilized in co-conspirator cases
to make forfeiture determinations.32 It explained that the method routinely
used in those types of cases is to conditionally admit hearsay statements
subject-to-connection with later presented proof of a conspiracy. 33 If the
connection is not proven, the court must either strike the testimony and
instruct the jury to disregard it, or, if that is not enough protection, must
grant a mistrial.34 The D.C. Circuit acknowledged that it may be better
27
Id. at 629 (quoting United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976)).
Id.; see also United States v. Cherry, 217 F.3d 811, 815 (10th Cir. 2000).
29 Balano, 618 F.2d at 629.
30 216 F. Supp. 2d 157, 166 (S.D.N.Y. 2000).
31 See United States v. White, 116 F.3d 903, 915 (D.C. Cir. 1997).
32 Id.
33 Id.
34 Id.
28
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practice to first secure the predicates for admissibility before making an

evidentiary ruling, but that trial exigencies often make that approach
impracticable. It therefore concluded that it would not compare the relative
merits of various competing procedures as long as trial courts adopted
adequate techniques to protect defendants against prejudice that might
result from premature admission when the subject-to-connection method is
used.35
The D.C. Circuit expressly rejected the defendants argument in White
that the trial court should have first conducted a preliminary hearing
outside the presence of the jury to determine admissibility before allowing
an out-of-court statement to be heard.36 The appellate court found no merit
to the defenses argument that judicial ego might psychologically dissuade
a judge from striking conditionally admitted evidence when a proffered
basis for admission is not later made.37 It recognized that the defendants
suggested sequence would have been wasteful of judicial time, as the
hearing and trial testimony on the murder would have been largely
duplicative. The trial court was fully entitled to bear this waste in mind.38
The appellate court did note, however, that a desirable solution might be a
full trial of other issues prior to admission of statements made by a missing
witness because such a procedure would concomitantly provide a trial
judge with evidence relevant to the forfeiture issue.39
In United States v. Emery, the defendant was charged with killing a
federal informant who had cooperated with federal authorities
investigating the defendants illegal drug activities.40 The Court admitted
various statements made by the murdered informant at trial contingent
upon the prosecution presenting additional evidence sufficient to prove
that the defendant was responsible for the murder, and thus, the
unavailability of the witness. In doing so, the trial court followed cases
dealing with the hearsay statements of co-conspirators: In those cases,
evidence is admitted conditionally subject to proof by a preponderance of
the evidence that the defendant and the declarant were co-conspirators.41
The defendant objected to the procedure used by the trial court and argued
that it should have instead conducted a preliminary hearing outside the
presence of the jury to determine if the defendant had procured the
absence of the witness.
35
Id.
Id.
37 White, 116 F.3d at 916.
38 Id. at 91516.
39 Id. at 915.
40 United States v. Emery, 186 F.3d 921, 924 (8th Cir. 1999).
41 Id. at 926.
36
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The Eighth Circuit Court of Appeals rejected the defendants

contention and followed the model of the co-conspirator cases.42 It found
that the procedure for contingent admission used in cases involving coconspirator statements was appropriate in the context of the case against
Emery. The appellate court wrote that it was motivated by the functional
similarity of the questions involved and by the fact that the repetition
necessarily inherent with a preliminary hearing would amount to a
significant waste of judicial resources.43 It therefore held that the trial
court did not commit error when denying a preliminary hearing. 44
The Fourth Circuit Court of Appeals has not analyzed the issue as
thoroughly as the Eighth or D.C. Circuits, but it has reached the same
result.45 A black widow was convicted in United States v. Gray of mail and
wire fraud for successively murdering two husbands and a boyfriend to
collect on their insurance.46 The evidence at trial showed that the second
husband was murdered, in part, to keep him from testifying in another
case where she had been charged in connection with an earlier attempt to
kill him.47 The Fourth Circuit held that the proof sufficiently established
forfeiture.48 Additionally, it recognized that a trial court need not hold an
independent evidentiary hearing if the requisite findings may be made
based upon evidence presented in the course of trial.49 The court did not
elaborate further on the reasoning behind its ruling. It did, however, cite an
earlier case which, in turn, relied upon the Eighth Circuits opinion in
Emery.50
The circumstances encountered by the Third Circuit Court of Appeals
in United States v. Baskerville were very similar to those present in Emery.51
42
Id. at 92627.
Id. at 926.
44 Id.
45 Similarly, the First Circuit included little discussion in United States v. Houlihan of the
legal reasons why it would not require a separate evidentiary hearing, and instead noted only
that the trial court had already heard thirty-seven days of testimony in that case before
deciding that forfeiture applied, and in such circumstances, the court did not outstrip the
bounds of its discretion in declining to convene a special mid-trial evidentiary hearing.
United States v. Houlihan, 92 F.3d 1271, 1281 n.5 (1st Cir. 1996); see also United States v.
Houlihan, 887 F. Supp. 352, 35657 (D. Mass. 1995) (describing in greater detail the procedure
used by the trial court).
46 United States v. Gray, 405 F.3d 227, 23033 (4th Cir. 2005).
47 Id. at 23132, 24243.
48 Id. at 24043.
49 Id. at 241.
50 Id. (citing United States v. Johnson, 219 F.3d 349, 356 (4th Cir. 2000).
51 Compare United States v. Baskerville, 448 F. Appx. 243, 245, 24950 (3d Cir. 2011), with
United States v. Emery, 186 F.3d 921, 924, 92526 (8th Cir. 1999) (explaining that the
43
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The defendant in Baskerville was charged and subsequently convicted of

conspiracy to murder an informant who had been scheduled to testify
against the defendant in an earlier drug conspiracy trial. Prior to admitting
statements made by the murdered informant, the trial court requested that
the prosecution make a proffer of the evidence that it expected to introduce
during trial to show that the defendant had murdered the witness to keep
him from testifying at the drug trial.52 The trial court thereafter admitted
the statements made by the dead informant subject to connection being
made at trial.53 Citing Emery and recognizing the similarities between the
procedure used by the trial court and the practices endorsed for use in coconspirator cases, the Third Circuit held that the procedure used by the
trial court was an acceptable way to avoid wasting judicial resources by
conducting in effect a trial before the trial.54 The appellate court did,
however, recognize that if the Governments proffer had given the District
Court reason to doubt its ability to actually deliver this proof at trial, an
evidentiary hearing may have been in order.55 Baskerville is an unreported
case and therefore not binding, but it has been found to be instructive and
relied upon within the Third Circuit.56
A proffer was also utilized by the trial court in Crutchfield v. United
States to make forfeiture determinations.57 In that case, the prosecution
detailed evidence that it expected to introduce at trial to establish that the
defendant had killed a witness to prevent her from testifying against him
about a triple murder. The trial court determined on the basis of the proffer
that an evidentiary hearing was not required. It further held that the
defendant had waived his right to confront the murdered witness and
admitted out-of-court statements that she had made.58 The trial court stated
that it would monitor the evidence as it was presented to confirm that it
satisfied confrontation waiver requirements. Further, the judge noted that
the prosecution risked a mistrial by using the proffer method if the
evidence actually presented at trial was inadequate to support admission
of the statements made by the absent witness.59
defendants in both cases eliminated witnesses who were helping authorities investigate illegal
drug conspiracies that involved the defendants).
52 Baskerville, 448 F. Appx. at 249.
53 Id.
54 Id. at 24950 (citing United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999)).
55 Id. at 249.
56 See United States v. Savage, No. 0755003, 2013 WL 372947, at *35 (E.D. Pa. Jan. 31,
2013).
57
Crutchfield v. United States, 779 A.2d 307, 329 (D.C. Cir. 2001).
Id.
59 Id.
58
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The Court of Appeals for the District of Columbia upheld the

procedure used by the trial court in Crutchfield, noting that the proffer
method had been approved in a number of comparable situations. It
pointed specifically to the approved use of the proffer method to determine
the admissibility of evidence regarding the commission of other crimes. 60
Relying on Emery, the appellate court explained that it would be a waste of
judicial resources to require repetition of evidence at both a preliminary
hearing and a trial.61
Almost all jurisdictions allowing forfeiture determinations to be made
without a separate hearing conducted outside the presence of a jury have
relied upon the Eighth Circuits opinion in Emery or a similar analysis that
a particular procedure is permissible since it is analogous to procedures
approved for determining the admissibility of co-conspirator statements.62
Cases relying on Emery and by analogy to procedures used with respect to
co-conspirator statements may therefore require additional analysis
because the law in that area is more complex than an unqualified universal
acceptance of a unitary method.63 In addition, the rationale justifying
admission of co-conspirator statements has shifted post-Crawford.64
III. Co-conspirator Statements: Discretion, Conditional Admission,
Proffers, and James Hearings
The Circuit Courts of Appeals have taken a variety of approaches
regarding the methods by which the admissibility of co-conspirator
statements may be determined. The Ninth Circuit Court of Appeals has
held that the order of proof is within the sound discretion of the trial
60
Id. at 330.
Id.
62 E.g., United States v. Baskerville, 448 F. Appx. 243, 24950 (3d. Cir. 2011); United States
v. Gray, 405 F.3d 227, 241 (4th Cir. 2005) (citing United States v. Johnson, 219 F.3d 349, 356 (4th
Cir. 2000) (internal citations omitted)); United States v. White, 116 F.3d 903, 915 (D.C. Cir.
1997); Crutchfield, 779 A.2d at 330. After noting that the Eleventh Circuit had not yet decided
the issue, a district court found persuasive and followed the rationale adopted by the Fourth
and Eighth Circuits. United States v. Harrell, No. 6:05cr17, 2006 WL 1344851, at *12 (M.D.
Ga. May 16, 2006). But see United States v. Houlihan, 92 F.3d 1271, 1281 n.5 (1st Cir. 1996)
(basing ruling solely on trial court discretion). At present, Emery appears to represent the
majority view among federal circuits. But see Pennsylvania v. Paddy, 800 A.2d 294, 310 n.10
(Pa. 2002) (opining that the prevailing federal view that the rules applicability is to be
determined at an evidentiary hearing prior to the admission of the evidence in question).
61
63
E.g., United States v. James, 590 F.2d 575, 58183 (5th Cir. 1979) (establishing a preferred
order of proof and limiting use of the subject-to-connection method to special circumstances).
64 See Giles v. California, 554 U.S. 353, 37475 n.6 (2008) (Scalia, J.) (explaining that the
theoretical basis for admission of co-conspirator statements changed with Crawford).
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court.65 It has therefore decided against requiring mandatory pretrial

hearings for making admissibility determinations for co-conspirator
statements.66 It has also declined to express a preference about what
procedure a trial court should use.67
The Sixth Circuit has similarly stated that it does not believe that it is
appropriate to set forth hard and fast procedures.68 It has instead
explained that one acceptable method is the mini-hearing method in which
the court, without a jury, hears proof and makes a preliminary finding
regarding admissibility.69 Another is for a trial judge to require the
prosecution to present its non-hearsay evidence of a conspiracy before
making an evidentiary ruling regarding the admissibility of an out-of-court
statement.70 Lastly, a trial court may conditionally admit a co-conspirator
statement subject to connection, which means that its admissibility must
later be demonstrated by introduction of sufficient proof that a conspiracy
existed.71
The First, Second, Third, Fourth, and Seventh Circuits have expressed
viewpoints similar to the Sixth and Ninth Circuits. The First Circuit has
ruled that a trial judge may require the government to present all of its
non-hearsay evidence before deciding whether the co-conspirator
exception applies.72 Trial courts may also use the preliminary hearing
method in their discretion, but the usual course of action in the First Circuit
is to conditionally admit hearsay subject to a final determination as to
whether it qualifies as a co-conspirator statement.73 This method, however,
requires a trial court to take precautions to minimize spillover prejudice if
the court ultimately strikes some or all of the provisionally admitted
evidence.74
Second Circuit Judge Friendly recognized in United States v. Geaney
that the practicalities of a conspiracy trial may sometimes require use of the
65
66
United States v. Zemek, 634 F.2d 1159, 1169 (9th Cir. 1980).
United States v. Arbelaez, 719 F.2d 1453, 1460 (9th Cir. 1983); Zemek, 634 F.2d at 1169
n.13.
67
United States v. Perez, 658 F.2d 654, 658 n.2 (9th Cir. 1981).
United States v. Vinson, 606 F.2d 149, 152 (6th Cir. 1979).
69 Id.
70 Id. at 15253.
71 Id. at 153.
72 United States v. Petrozziello, 548 F.2d 20, 22 n.3 (1st Cir. 1977), abrogated in part on other
grounds by United States v. Baines, 812 F.2d 41, 42 (1st Cir. 1987), as recognized in United States
v. Goldberg, 105 F.3d 770, 77576 (1st Cir. 1997).
73 United States v. Sepulveda-Hernandez, 752 F.3d 22, 29 n.2 (1st Cir. 2014); United States v.
Baltas, 236 F.3d 27, 3435 (1st Cir. 2001).
68
74
See Baltas, 236 F.3d at 3435.
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subject-to-connection method. However, a trial judge may be left in a

position of having to declare a mistrial if provisionally admitted evidence
is subsequently disallowed and the amount of inadmissible proof is so
large that an instruction to the jury to disregard it would have doubtful
utility.75 The Second Circuits Geaney protocols nonetheless allow trial
courts to conditionally admit alleged co-conspirator statements without
conducting a pre-trial admissibility hearing.76
The Third Circuit has likewise held that a limine hearing is not
required, but the subject-to-connection method should be carefully
considered and sparingly utilized depending upon the circumstances of a
case and the possibility that a trial court might declare a mistrial if a
conspiracy is not sufficiently established to support admission of
statements after they have already been heard by a jury. 77 The Third Circuit
nonetheless leaves it to trial courts to decide whether to conduct a pretrial
evidentiary hearing or to conditionally admit an out-of-court statement
subject to a requirement that the government make an adequate showing
of admissibility by the close of its case.78
The Fourth Circuit has held that it is not error in itself for a judge to
permit introduction of alleged co-conspirator statements subject to being
followed up and connected by evidence demonstrating the existence of a
conspiracybut such method does give rise to a potential for prejudice if
the connection never materializes.79 As long as a judge safeguards a
defendants rights by being prepared to either declare a mistrial or dismiss
a case upon a failure of proof, the Fourth Circuit does not require trial
courts to hold a hearing before conditionally admitting co-conspirator
statements.80
The Seventh Circuit recognizes that a trial court may, in its discretion,
utilize a limited pre-trial hearing to preliminarily determine admissibility
based on prosecution proffers and subject to eventual submission of proof
at trial.81 In addition to the pre-trial proffer method, the Seventh Circuit has
explained that a trial court:
75 See United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969); see also United States v.
Stanchich, 550 F.2d 1294, 129798 (2d Cir. 1977).
76
See United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993).
See United States v. Ammar, 714 F.2d 238, 24547 (3d Cir. 1983).
78 United States v. Weaver, 507 F.3d 178, 18788 (3d Cir. 2007).
79 See United States v. Vaught, 485 F.2d 320, 323 (4th Cir. 1973); see also United States v.
Blevins, 960 F.2d 1252, 1256 (4th Cir. 1992).
77
80
See United States. v. Hines, 717 F.2d 1481, 1488 (4th Cir. 1983).
See United States v. Santiago, 582 F.2d 1128, 1131 (7th Cir. 1978), overruled in part on other
grounds by Bourjaily v. United States, 483 U.S. 171 (1987), as recognized in United States v.
Irorere, 228 F.3d 816, 824 n.1 (7th Cir. 2000).
81
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can rule on each statement as it is elicited based on the evidence

the Government has adduced to that point; the court can, even in
the absence of a pretrial proffer, conditionally admit the body of
coconspirators statements subject to the Governments eventual
proof of the foundational elements (the penalty for not so
proving being a possible mistrial); or the court can hold a full
blown preliminary hearing to consider all evidence concerning
the statements.82
However, it discourages full blown preliminary hearings because they are

inefficient and require an unnecessary duplication of efforts. 83 In normal
practice, when a defendant makes a mid-trial objection to admission of an
out-of-court statement, a judge may listen to the parties respective
positions and make an evidentiary ruling either during a recess or at a side
bar outside of the presence of the jury.84 Even that procedure, however, is
sometimes inefficient and unworkable, and the Seventh Circuit therefore
recognizes that the conditional admission method may be used.85
The D.C. Circuit considers it a better practice for the court to
determine before the hearsay evidence is admitted that the evidence
independent of the hearsay testimony proves the existence of the
conspiracy sufficiently to justify admission of the hearsay declarations.86
The D.C. Circuit acknowledges, however, that complying with such a
preferred order of proof is impractical due to witness scheduling and other
logistic considerations regarding the scope of the testimony expected from
each, and it therefore vests trial courts with considerable discretion to
admit evidence subject to connection as a concession to such practical
impediments that arise during trial.87 The D.C. Circuit recognizes that
conditionally admitted evidence might later be stricken when the subjectto-connection method is used. Therefore, it is sensitive that due to the
possibility of prejudice arising from the introduction of hearsay evidence
that the judges later instruction to strike cannot divest of its prejudicial
effect, the defendant may request, and should receive, mistrial in these
circumstances.88 Thus, the D.C. Circuit encourages trial courts to follow a
preferred order of proof by which a conspiracy must be sufficiently proven
prior to admission of an alleged co-conspirator statement and recognizes
that trial judges may hold a mini-trial out of the presence of the jury to
82
United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991).
See United States v. Andrus, 775 F.2d 825, 837 (7th Cir. 1985); see also Cox, 923 F.2d at 526.
84 United States v. Azzarelli Constr. Co., 612 F.2d 292, 297 (7th Cir. 1979).
85 See Andrus, 775 F.2d at 83637.
86 United States v. Jackson, 627 F.2d 1198, 1218 (D.C. Cir. 1980).
87 Id.
88 Id.
83
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make such evidentiary determinations, but it holds that they have no

obligation to do so.89
The Eighth Circuit allows trial courts to conditionally admit an alleged
co-conspirator statement.90 That circuit has, however, provided the
following express guidance in United States v. Bell regarding the procedural
steps with which trial courts should comply:
(1) If the prosecutor propounds a question which obviously
requires a witness to recount an out-of-court declaration of an
alleged coconspirator, the court, upon a timely and appropriate
objection by the defendant, may conditionally admit the
statement. At the same time, the court should, on the record,
caution the parties (a) that the statement is being admitted subject
to defendants objection; (b) that the government will be required
to prove by a preponderance of the independent evidence that
the statement was made by a coconspirator during the course and
in furtherance of the conspiracy; (c) that at the conclusion of all
the evidence the court will make an explicit determination for the
record regarding the admissibility of the statement; and (d) that if
the court determines that the government has failed to carry the
burden delineated in (b) above, the court will, upon appropriate
motion, declare a mistrial, unless a cautionary instruction to the
jury to disregard the statement would suffice to cure any
prejudice. The foregoing procedural steps should transpire out of
the hearing of the jury.
(2) After a ruling on the record that the out-of-court declaration is
admissible under Rule 801(d)(2)(E), the court may submit the
case to the jury. The court should not charge the jury on the
admissibility of the coconspirators statement, but should, of
course, instruct that the government is required to prove the
ultimate guilt of the defendant beyond a reasonable doubt. An
appropriate instruction on credibility should be given, and the
jury should be cautioned with regard to the weight and
credibility to be accorded a coconspirators statement.91
Bell procedures do not contemplate or require admissibility determinations

to be made at a pre-trial hearing.92 In addition, it should be noted that
[p]ost-Bell cases have held that the Bell procedures are flexible . . . .93
In contrast to the other circuits, the Fifth, Tenth, and Eleventh Circuit
Courts of Appeal have all adopted procedures based upon minimum
89
Id. at 121819.
United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978); see also United States v. Hester,
140 F.3d 753, 75859 (8th Cir. 1998).
90
91
Bell, 573 F.2d at 1044 (citations omitted).

United States v. Wood, 851 F.2d 185, 187 (8th Cir. 1988).
93 United States v. Legato, 682 F.2d 180, 183 (8th Cir. 1982).
92
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standards established in United States v. James.94 The Fifth Circuit in James

took a holistic view of judicial economy and noted that the subject-toconnection method for admitting out-of-court statements is just as likely to
waste judicial resources as it is to conserve them. It explained that:
Both because of the danger to the defendant if the statement is
not connected and because of the inevitable serious waste of time,
energy and efficiency when a mistrial is required in order to
obviate such danger, we conclude that the present procedure
warrants the statement of a preferred order of proof in such a
case.95
The James court therefore held that a trial judge must make a preliminary
ruling based upon substantial evidence that the co-conspirator statement
rule applies before an out-of-court statement may be heard by a jury.96 The
subject-to-connection method may still be used despite the order of proof
preferred by James, but only if it is not reasonably practical to require the
showing to be made before admitting the evidence . . . .97 Regardless of the
method used to admit an alleged co-conspirator statement, the trial judge
must revisit its preliminary ruling at the conclusion of all of the evidence
and:
determine as a factual matter whether the prosecution has shown
by a preponderance of the evidence independent of the statement
itself (1) that a conspiracy existed, (2) that the co-conspirator and
the defendant against whom the coconspirators statement is
offered were members of the conspiracy, and (3) that the
statement was made during the course and in furtherance of the
conspiracy. Rule 801(d)(2)(E). If the court concludes that the
prosecution has not borne its burden of proof on these issues, the
statement cannot remain in the evidence to be submitted to the
jury. In that event, the judge must decide whether the prejudice
arising from the erroneous admission of the coconspirators
statements can be cured by a cautionary instruction to disregard
the statement or whether a mistrial is required.98
94 See United States v. James, 590 F.2d 575, 581 (5th Cir. 1979); see, e.g., United States v.
Owens, 70 F.3d 1118, 1123 (10th Cir. 1995) (expressing a strong preference for procedures
established by James); United States v. Espino-Perez, 798 F.2d 439, 441 (11th Cir. 1986) (James
procedures preferred); Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(adopting preOct. 1, 1981 decisions made by the Fifth Circuit as part of the body of law for
the Eleventh Circuit); United States v. Peterson, 611 F.2d 1313, 133031 (10th Cir. 1979)
(adopting James procedures).
95 James, 590 F.2d at 582.
96 Id. at 581.
97 Id. at 582.
98 Id. at 58283, abrogated in part by Bourjaily v. United States, 483 U.S. 171, 18081 (1987), as
recognized in United States v. Fragoso, 978 F.2d 896, 900 (5th Cir. 1992) (stating that Bourjaily
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James essentially established a preferred order of proof, as opposed to an

express mandate for a pre-admission hearing, however, the procedure
adopted by that case has been applied in that manner and come to be
colloquially known as a James hearing.99 Although James is followed by the
Fifth, Tenth, and Eleventh Circuits, it is not absolute, and trial courts are
given discretion to determine whether or not a James hearing is necessary
in a particular case.100 In addition, a James hearing does not need to take
place outside the presence of a jury.101
The U.S. Supreme Court has not expressed a definitive preference
about the procedure that should be used to determine the admissibility of
co-conspirator statements. It has, however, been presented with the
opportunity. Relying on its earlier decision, United States v. Vinson, the
Sixth Circuit Court of Appeals held in United States v. Bourjaily that a coconspirator statement may be admitted using the subject-to-connection
method.102 The Sixth Circuit explained that a co-conspirator determination
need not be decided at the time the questionable evidence is offered.
Rather, as the trial court here did, the court may wait until the United
States case is complete before making findings and a ruling on its
admissibility.103 The Supreme Court affirmed some aspects of the Sixth
Circuits Bourjaily decision regarding application of the co-conspirator
statement rule, but noted that we do not express an opinion on the proper
order of proof that trial courts should follow . . . in an ongoing trial.104
While the Supreme Court in Bourjaily did not discuss the proper order
of proof, it placed particular emphasis on Federal Rule of Evidence 104
when evaluating the burden of proof requirements for the co-conspirator
statement rule, and held that the Rule prevails.105 Rule 104 of the
Federal Rules of Evidence is a rule of general application, not limited to
swept away the portion of James that held a conspiracy must be proven by evidence
independent of a co-conspirators statement).
99
United States v. Barshov, 733 F.2d 842, 84950 (11th Cir. 1984); see also United States v.
Owens, 70 F.3d 1118, 1123 (10th Cir. 1995) (describing procedures as a James hearing); United
States v. EspinoPerez, 798 F.2d 439, 441 (11th Cir. 1986) (giving a similar description).
100 United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001); United States v. Hernandez,
829 F.2d 988, 99394 (10th Cir. 1987); Espino-Perez, 798 F.2d at 441; see United States v.
Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (Under Tenth Circuit law, a district court can
only admit coconspirator statements if it holds a James hearing or conditions admission on
forthcoming proof of a predicate conspiracy through trial testimony or other evidence.).
101
Fragoso, 978 F.2d at 899.

United States v. Bourjaily, 781 F.2d 539, 542 (6th Cir. 1986).
103 Id. at 542 (citing United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979)).
104 Bourjaily v. United States, 483 U.S. 171, 176 n.1 (1987).
105 Id. at 17879.
102
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coconspirator statements under Rule 801(d)(2)(E).106 Rule 103 is likewise a

rule of general application.107 It states that [t]o the extent practicable, the
court must conduct a jury trial so that inadmissible evidence is not
suggested to the jury by any means.108 The Supreme Courts conclusion in
Bourjaily that evidentiary rule requirements prevail may therefore imply an
order-of-proof preference in some circumstances. Rule 103(d) should also
prevail and demand that proceedings occur outside the presence of a jury
anytime inadmissible evidence must be presented for a trial judge to make
an evidentiary determination. Since Rule 104(a) allows a trial court to rely
upon otherwise inadmissible non-privileged proof when resolving
preliminary questions,109 there are many instances in which the operation
of the evidentiary rules may, in practice, dictate a particular order of proof
or use of special procedures when making admissibility determinations.
Regardless of the method used to determine admissibility of coconspirator statements, the circuits appear to uniformly require that a
judge make any findings outside the presence of a jury and not attempt to
explain the reasoning behind the evidentiary rulings to them. 110 This is
because exposure to the judges views may influence a jurys deliberations.
The Sixth Circuit Court of Appeals explained in Vinson:
If the trial judge does choose to admit the hearsay (a) after the
government has established the conspiracy by a preponderance
at the trial, or (b) at a mini-hearing, or (c) conditionally subject
to connection, he should refrain from advising the jury of his
findings that the government has satisfactorily proved the
conspiracy. The judge should not describe to the jury the
governments burden of proof on the preliminary question. Such
an instruction can serve only to alert the jury that the judge has
determined that a conspiracy involving the defendant has been
proven by a preponderance of the evidence. This may adversely
affect the defendants right to trial by jury. The judges opinion is
likely to influence strongly the opinion of individual jurors when
they come to consider their verdict and judge the credibility of
witnesses.111
The Seventh Circuit further explained in United States v. Peters that [m]ore
appropriately, the judge should at most merely caution the jurors at the
time the coconspirator hearsay is admitted that the evidence was not
106
United States v. Saneaux, 365 F. Supp. 2d 488, 491 (S.D.N.Y. 2005).

See FED. R. EVID. 103.
108 Id. at 103(d).
109 FED. R. EVID. 104(a).
110 See, e.g., United States v. SevillaAcosta, 746 F.3d 900, 90405 (8th Cir. 2014); United
States v. Tracy, 12 F.3d 1186, 1200 (2d Cir. 1993).
107
111
United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979).
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subject to crossexamination.112 In addition, the court should give

appropriate instructions on credibility and burden of proof. 113
The task of a judge when determining the admissibility of coconspirator statements and the applicability of forfeiture by wrongdoing is
very similar. Each situation hinges on an assessment of some conduct
purportedly committed by a defendant. The forfeiture-by-wrongdoing
doctrine requires a court to preliminarily decide whether a defendant
caused the unavailability of a witness.114 A statement made by a coconspirator is likewise only admissible if a judge determines that a
defendant participated in a conspiracy with a declarant and the statement
was made in furtherance of that conspiracy. 115 In each instance, the judge
may need to make a ruling for purposes of evidence admissibility that
coincides with the ultimate decision to be made by the jury. The coconspirator statement rule is not limited to cases involving conspiracy
charges.116 However, a judge in a conspiracy case must make an initial
determination that the conspiracy existed to be able to determine whether a
co-conspirators statement can be admitted.117 So too, in cases where
charges arise from alleged conduct of a defendant that prevents a witness
from testifying, must a judge preliminarily decide whether a defendant
committed the crime when making a forfeiture determination regarding
the admissibility of a statement made by the missing witness. 118 In both
situations, a defendant loses any confrontation objection if it is determined
that the particular exception applies.119
The admission of out-of-court statements under the co-conspirator
statement rule and the forfeiture-by-wrongdoing doctrine now differ
insofar as the respective theoretical basis of each, upon which the evidence
is admitted once a determination has been made. Out-of-court statements
made by a witness who has been wrongfully prevented by a defendant
from testifying at trial are admitted despite the defendants right of
confrontation to protect the adjudicatory process because, [w]hile
defendants have no duty to assist the State in proving their guilt, they do
112 791 F.2d 1270, 1285 (7th Cir. 1986), cert. denied, 479 U.S. 847 (1986), and superseded by
statute on other grounds as recognized in United States v. Guerrero, 894 F.2d 261, 267 (7th Cir.
1990).
113 Id. at 1285 (quoting United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978)).
114 See Reynolds v. United States, 98 U.S. 145, 15859 (1878).
115 Bourjaily v. United States, 483 U.S. 171, 175 (1987).
116 United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991).
117 See, e.g., United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969).
118 See, e.g., United States v. Mayhew, 380 F. Supp. 2d 961, 967 (S.D. Ohio 2005).
119 See, e.g., Bourjaily, 483 U.S. at 181 (applying the co-conspirator exception); Davis v.
Washington, 547 U.S. 813, 833 (2006) (applying forfeiture-by-wrongdoing doctrine).
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have the duty to refrain from acting in ways that destroy the integrity of
the criminal-trial system.120 In contrast, the post-Crawford rationale for
admission of co-conspirator statements is that they were non-testimonial
when made during the course of a conspiracy and, therefore, do not fall
within the scope of the Confrontation Clause.121 One could therefore argue
that the pre-Crawford cases analogizing the doctrines have become
outdated, because co-conspirator statements no longer trigger
confrontation requirements while forfeiture by wrongdoing remains an
exception to them. However, when it comes to the appropriateness of the
procedures used to determine evidence admissibility, it is a distinction
without any real difference. The constitutional concern with respect to both
doctrines is whether an out-of-court statement may be used absent an
opportunity for confrontation. The theoretical justification for denying
confrontation after a determination has been made that a particular
doctrine applies should provide no basis for setting apart the procedures
by which such determinations may be made.
Cases governing the co-conspirator statement rule remain instructive,
because they demonstrate that a one-size-fits all solution may not exist. A
trial judge may not know that an out-of-court statement will be introduced
into evidence until it is offered. Attorneys on both sides of a case do not
openly expose their entire litigation strategy in advance of trial for tactical
reasons. It would be foolhardy for a prosecutor to announce in open court,
to a defendant who is suspected of pressuring witnesses not to testify, that
his or her efforts appear to be working. Therefore, many times a trial judge
does not know in advance that a witness might not appear or that out-ofcourt statements will be offered in lieu of live testimony. Witnesses also
regularly blurt out things unexpectedly during the course of testifying to
the surprise not only of the judge, but also to the attorney asking questions.
By necessity, judges must regularly deal with admissibility questions in the
middle of a trial. As a consequence, even those jurisdictions that have
expressed a preferred order of proof regarding presentation of coconspirator statements recognize that it is not always reasonably practical
to require the predicates for admission of evidence to be shown in
advance.122
The need for flexibility is even more acute when dealing with the
forfeiture-by-wrongdoing doctrine.
120
Davis, 547 U.S. at 833.

United States v. Farhane, 634 F.3d 127, 16263 (2d Cir. 2011); United States v. Hendricks,
395 F.3d 173, 18284 (3d Cir. 2005); United States v. Reyes, 362 F.3d 536, 540 n.4 (8th Cir. 2004);
see Crawford v. Washington, 541 U.S. 36, 56 (2004); United States v. Jenkins, 419 F.3d 614, 618
(7th Cir. 2005).
121
122
United States v. James, 590 F.2d 575, 582 (5th Cir. 1979).
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Forfeiture-by-wrongdoing determinations necessarily must be made in

close proximity to trial, or even during trial, because the doctrine only
applies if a witness does not actually appear.123 With the exception of
extreme instances in which a witness is dead, the absence of a prospective
witness often cannot be predicted. In domestic violence cases, for example,
a victim/witness may cooperate with a prosecution until the day of trial,
then suddenly disappear. The forfeiture-by-wrongdoing doctrine
contemplates that some defendants attempt to obstruct proceedings by
keeping witnesses away, and therefore it must also anticipate that those
seeking to upset a criminal prosecution will likely do so without warning
when least convenient and most difficult to counteract. An inflexible
pretrial hearing requirement would confer perverse reward upon those
who wait to tamper with witnesses until after a trial has already begun. For
that matter, establishment of any rigid protocols would be unrealistic and
provide incentive for defendants seeking to disrupt the prosecution of a
case to further manipulate a proceeding in a manner to frustrate their
fulfillment. As soon as a rule becomes set in stone, it becomes an obvious
target for any wrongdoing efforts.
Cases regarding the co-conspirator statement rule are also instructive,
because they demonstrate that the question of whether or not to require a
pre-admission hearing is not so simple. Jurisdictions allowing introduction
of co-conspirator statements through the subject-to-connection method
place added responsibilities upon a trial judge to monitor the sufficiency of
proof throughout the proceedings and potentially declare a mistrial if it is
determined that conditionally admitted evidence must be stricken and is
too prejudicial for a jury to disregard.124 Conditional admission may be
tolerated when necessary, but jurisdictions that allow it also warn that it
should be sparingly utilized, and acknowledge that it is probably better
practice to determine whether a conspiracy has been sufficiently proven
before admitting a co-conspirator statement.125
Forfeiture-by-wrongdoing cases that rely upon co-conspirator cases to
justify their holdings must therefore also impliedly incorporate the
cautionary advice and safeguards they demand. In Emery, the Eighth
Circuit cited its prior holding in Bell stating that, [w]e agree with the trial
court that a procedure adapted from the co-conspirator cases was
123
Utah v. Poole, 232 P.3d 519, 52728 (Utah 2010).

See United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991); United States v. Ammar, 714
F.2d 238, 247 (3d Cir. 1983); United States v. Hines, 717 F.2d 1481, 1488 (4th Cir. 1983); United
States v. Jackson, 627 F.2d 1198, 1218 (D.C. Cir. 1980); United States v. Bell, 573 F.2d 1040, 1044
(8th Cir. 1978); United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969).
124
125
See Ammar, 714 F.2d at 24547; Jackson, 627 F.2d at 1218.
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appropriate in the present [forfeiture-by-wrongdoing] context.126 Bell fell

far short of a ringing endorsement for conditional admission, and instead
indicated that a trial court might have to declare a mistrial in some cases if
the judge determines that the government failed to carry its burden of
thereafter proving the applicability of the co-conspirator statement rule.127
The D.C. Circuit in White likewise borrowed co-conspirator statement
procedures from its earlier decision in Jackson when establishing protocols
for the forfeiture-by-wrongdoing doctrine, and noted that trial courts using
the subject-to-connection method must either strike the testimony and
instruct the jury to disregard it, or if that is not enough protection, must
grant a mistrial if an adequate showing of wrongful procurement is not
ultimately made.128
The co-conspirator statement cases cannot be blindly grouped into two
categories: those that require pre-admission hearings and those that do not.
The cases recognize that the vagaries of trial are more complex. A
particular order of proof may be desired, but it is not always achievable. 129
The discretionary authority of a judge over the conduct of a trial is
indispensable, but it must be exercised in a manner that protects a
defendants right to a fair trial.130
IV. Trial Court Governance Over Proceedings vs. Practical Limitations
Upon the Ability to Un-Ring a Bell
The U. S. Supreme Court recognizes that a judge has considerable
discretion over the manner in which proof is presented at trial. In Geders v.
United States, the Supreme Court explained:
Our cases have consistently recognized the important role the
trial judge plays in the federal system of criminal justice. [T]he
judge is not a mere moderator, but is the governor of the trial for
the purpose of assuring its proper conduct and of determining
questions of law. . . . A criminal trial does not unfold like a play
with actors following a script; there is no scenario and can be
none. The trial judge must meet situations as they arise and to do
this must have broad power to cope with the complexities and
contingencies inherent in the adversary process. To this end, he
may determine generally the order in which parties will adduce
126
United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999).
Bell, 573 F.2d at 1044.
128 United States v. White, 116 F.3d 903, 915 (D.C. Cir. 1997).
129 See e.g., United States v. James, 590 F.2d 575, 582 (5th Cir. 1979).
130 See, e.g., Bell, 573 F.2d at 1044.
127
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proof; his determination will be reviewed only for abuse of

discretion.131
A trial judge may anticipate that certain evidence might be offered, but
until such time that it is offered, a judge cannot know for sure. A trial
courts ability to control and maintain fairness during a trial is reactive by
necessity, and sometimes dependent upon a judge instructing a jury to
disregard certain things after their occurrence. For example, the prosecutor
in Holt v. United States attempted to introduce statements into evidence that
had been made by a defendant and referred to them as confessions when
arguing for their admission.132 The trial judge excluded the statements and
cautioned the jury, but the defendant nonetheless argued that the judge
erred by considering the admissibility of the statements and arguments of
counsel in the jurys presence. In an opinion authored by Justice Holmes,
the Supreme Court rejected the objection, writing:
[W]e are of opinion that it was within the discretion of the judge
to allow the jury to remain in court. Technically the offer of the
evidence had to be made in their presence before any question of
excluding them could arise. They must have known, even if they
left the court, that statements relied on as admitting part or the
whole of the Governments case were offered. The evidence to
which they listened was simply evidence of facts deemed by the
judge sufficient to show that the statements, if any, were not
freely made, and it could not have prejudiced the prisoner. No
evidence was admitted that the prisoner had made any
confession and his statements were excluded. Moreover the judge
said to the jury that they were to decide the case on the testimony
as it came from the witnesses on the stand; not what counsel
might say or the newspapers publish; that he was not excluding
them, because he assumed that they were men of experience and
common sense and could decide the case upon the evidence that
the court admitted. He also told them in the strongest terms that
the preliminary evidence that he was hearing had no bearing on
the question they had to decide. No doubt the more conservative
course is to exclude the jury during the consideration of the
admissibility of confessions, but there is force in the judges view
that if juries are fit to play the part assigned to them by our law
they will be able to do what a judge had to do every time that he
tries a case on the facts without them, and we cannot say that he
131 Geders v. United States, 425 U.S. 80, 86 (1976) (citations omitted); cf. Illinois v. Allen, 397
U.S. 337, 34247 (1970) (recognizing the authority of a trial judge to have a disruptive
defendant removed from a courtroom to preserve the dignity, order, and decorum of
proceedings despite the defendants attendant loss of confrontation rights).
132
Holt v. United States, 218 U.S. 245, 24950 (1910).
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was wrong in thinking that the men before him were competent
for their task.133
By the time it decided Jackson v. Denno, the Supreme Court held a

somewhat different view, ruling that due process may require certain
determinations to be made outside the presence of a jury responsible for
deciding innocence or guilt.134 Jackson declared unconstitutional a New
York procedure by which a jury was asked to decide by general verdict
both the voluntariness of a confession and a defendants ultimate fate.135
The Supreme Court explained that it is . . . axiomatic that a defendant . . .
is deprived of due process when a conviction is founded, in whole or in
part, upon an involuntary confession.136 This is not only because coerced
confessions may be unreliable, but also because of strongly felt societal
beliefs that important human values are sacrificed when the government
wrings a confession out of a defendant in order to secure a conviction. 137
The Court therefore held that a defendant has a constitutional right at some
stage in the proceedings to have a fair hearing and reliable determination
made regarding the voluntariness of an alleged confession.138 The Court
recognized that a jury, tasked with deciding both voluntariness of a
confession and innocence or guilt, might become predisposed upon
hearing a coerced confession to find it voluntary if necessary to keep a
guilty defendant from going free.139 In addition, the Court noted that a
jury may be unable to disregard a coerced confession, even if instructed to
do so, once the confession is solidly implanted in the jurys mind . . . .140
A majority agreed that the voluntariness of the confession should have
been determined in a proceeding separate and apart from the body trying
guilt or innocence.141
Justice Harlan issued a stinging dissent in Jackson, observing that the
majoritys lack of faith in a jurys ability to follow instructions was
inapposite to precedent and, in effect, indicative of a distrust in the jury
system itself.142 Justice Harlan wrote:
The danger that a jury will be unable or unwilling to follow
instructions is not, of course, confined to joint trials or trials
133
Id. But see FED. R. EVID. 104(c)(1).

See Jackson v. Denno, 378 U.S. 368, 39091 (1964).
135 Id. at 38991.
136 Id. at 376.
137 Id. at 38586.
138 Id. at 37677; see also Lego v. Twomey, 404 U.S. 477, 489 (1972).
139 Jackson, 378 U.S. at 38283.
140 Id. at 388.
141 Id. at 394.
142 See id. at 42740 (Harlan, J., dissenting).
134
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involving special issues such as insanity or the admissibility of a

confession. It arises whenever evidence admissible for one
purpose is inadmissible for another, and the jury is admonished
that it may consider the evidence only with respect to the
former. . . . More broadly, it arises every time a counsel or the
trial judge misspeaks himself at trial and the judge instructs the
jury to disregard what it has heard. . . . In short, the fears which
guide the Courts opinion grow out of the very nature of the jury
system.143
The Supreme Court revisited the procedural requirements of Jackson in

Pinto v. Pierce and rejected the argument that Jackson required a judge to
conduct a separate hearing outside the presence of a jury to determine
whether a confession had been coerced.144 The Court commented that
because a disputed confession may be found involuntary and
inadmissible by the judge, it would seem prudent to hold voluntariness
hearings outside the presence of the jury.145 The Court noted, however,
that it had never ruled that all voluntariness hearings must be held
outside the presence of the jury, regardless of the circumstances.146
Despite this general statement which seemingly limits Jackson, the Supreme
Court recognized a year later in Bruton v. United States, with reference to
Jackson, that there are some contexts in which the risk that the jury will
not, or cannot, follow instructions is so great, and the consequences of
failure so vital to the defendant, that the practical and human limitations of
the jury system cannot be ignored.147
Jackson established that there are some circumstances in which the
Supreme Court will not indulge the usual presumption that a jury can be
relied upon to determine issues according to the trial judges
instructions.148 The extent to which it will require separation of the gatekeeping function of a judge in determining questions of admissibility from
the fact finding function of a jury may depend largely upon the nature of
the evidence at issue. With respect to out-of-court identification evidence,
the Supreme Court held in Watkins v. Sowders that no per se rule requiring
a separate hearing need be established because the reliability of an
identification is the primary consideration upon which admissibility
depends, and the proper evaluation of such evidence under instructions
143
Id. at 435 (Harlan, J., dissenting) (citations omitted).

Pinto v. Pierce, 389 U.S. 31, 3132 (1967).
145 Id. at 32.
146 Id.
147 Bruton v. United States, 391 U.S. 123, 135 (1968). Justice Harlan joined Justice Whites
dissent in Bruton while expressly stating that he did not abandon his original disagreement
with Jackson. Id. at 144 (Harlan, J., dissenting).
144
148
Watkins v. Sowders, 449 U.S. 341, 347 (1981).
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from a trial judge is the very task that our system of justice assumes that
juries can perform.149 With respect to a confession of a co-defendant in a
joint trial that implicates another defendant, however, the Supreme Court
held in Bruton that such information is so prejudicial if heard by a jury that
an instruction limiting its use against only the confessor would not be an
adequate substitute for the non-confessing co-defendants constitutional
right of cross-examination: The effect is the same as if there had been no
instruction at all.150
Bruton was limited by Richardson v. Marsh, which held that it may be
possible in some instances to redact a confession for use in a joint trial with
proper limiting instructions without violating the non-confessing
defendants right to confront a confessor-co-defendant who does not testify
at trial.151 The Richardson Court recognized though, that the presumption
that jurors will comply with instructions given by a trial judge is driven
more by practicality than reality:
The rule that juries are presumed to follow their instructions is a
pragmatic one, rooted less in the absolute certitude that the
presumption is true than in the belief that it represents a
reasonable practical accommodation of the interests of the state
and the defendant in the criminal justice process.152
The Supreme Court subsequently held in Gray v. Maryland that limiting

instructions could not save an inadequately redacted confession in the joint
trial of a confessor and non-confessor, because certain powerfully
incriminating extrajudicial statements of a codefendantthose naming
another defendantconsidered as a class, are so prejudicial that limiting
instructions cannot work.153
The Supreme Court is unlikely to severely disturb the deference
traditionally given to trial courts in determining matters regarding the
order of proof because the number of variables encountered by a judge
during trial makes it imprudent to invite appeals by second-guessing every
decision that may be made. 154 However, the Jackson and Bruton line of cases
indicate that a judge who conditionally allows a particularly devastating
testimonial out-of-court statement, subject to connection with later proof
149 Id. at 34748. It should be noted, however, that the Court recognized that it may often be
advisable to make a judicial determination outside the presence of a jury of the admissibility
of a witnesss identification of a defendant as the culprit of a crime and, in some
circumstances, constitutionally necessary. Id. at 349.
150
Bruton, 391 U.S. at 12637.

Richardson v. Marsh, 481 U.S. 200, 20611 (1987).
152 Id. at 211.
153 Gray v. Maryland, 523 U.S. 185, 192 (1998).
154 See Geders v. United States, 425 U.S. 80, 86 (1976).
151
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that the forfeiture-by-wrongdoing doctrine justifies its admission, may do

so at the judges own risk. Take for instance, an extreme example, where
admission is sought for an incriminating confession given by a missing
accomplice to a crime. If proof materializes that the defendant procured the
absence of the accomplice to keep him or her from testifying, the confession
would appear to be admissible.155 However, if an adequate showing of
wrongdoing is not made, the conditionally admitted confession would
appear to be exactly the type of statement for which a curing instruction
might be found inadequate.156 While there are many other types of
testimonial out-of-court statements besides confessions that may be
admitted when the forfeiture-by-wrongdoing doctrine applies,157 the
constitutional sufficiency of an instruction that a jury must disregard a
conditionally admitted statement that is later excluded appears to turn on
the power by which the statement incriminates the defendant. If the
statement is particularly effective, a jury may be deemed incapable of
ignoring it, and a judge may be unable to save a trial from its premature
admission.158
A prosecutor who unsuccessfully attempts to link a conditionally
admitted out-of-court statement to alleged wrongful procurement of a
missing witness would be in an awkward position when arguing to sustain
a conviction obtained after the statement was stricken. Post-conviction
arguments that the stricken statement was unimportant and had no effect
on a jurys verdict would seem directly in conflict with the attempt to
admit the statement at trial. If the statement had so little bearing upon the
outcome of a case, then why was it offered into evidence in the first place?
In most cases, forfeiture by wrongdoing is something that would need to
be proven merely for purposes of admissibility in addition to everything
else.159 Therefore, it would not appear to make sense that a prosecutor
155
See Giles v. California, 554 U.S. 353, 35968 (2008).

See Bruton v. United States, 391 U.S. 123, 12437 (1968); Jones v. Basinger, 635 F.3d 1030,
105556 (7th Cir. 2011).
156
157 See Crawford v. Washington, 541 U.S. 36, 5152 (2004) (recognizing without adopting
various formulations for determining the types of statements that may be considered
testimonial for purposes of Confrontation Clause analysis).
158 See Gray, 523 U.S. at 192. But see Hayes v. Ayers, 632 F.3d 500, 51214 (9th Cir. 2011)
(holding that an instruction to entirely disregard improperly presented evidence removes it
from Bruton/Gray analysis, because an instruction to flatly disregard eases the task
condemned in Bruton of having a jury consider highly prejudicial evidence for some purposes
while expecting it will ignore that evidence for others).
159 An exception would be a case in which a defendant is on trial for charges that he or she
eliminated or interfered with a witness to prevent them from testifying in another matter. See
United States v. Gray, 405 F.3d 227, 240 (4th. Cir. 2005). In that instance, the elements of, or at
least the motive for, the underlying crime would include an intent-to-silence, and proof of the
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would willingly undertake an additional proof burden unless that effort

was expected to result in the admission of evidence that was particularly
helpful in proving more essential parts of the governments case.
The core concern in Bruton was that the introduction of a non-testifying
co-defendant confession posed a substantial threat to the other codefendants right of confrontationa hazard that the Supreme Court could
not ignore.160 The Supreme Court in Crawford reemphasized the importance
of cross-examination to the truth seeking process.161 Therefore, it seems
extremely unlikely that the court would hold that premature admission
under the forfeiture-by-wrongdoing doctrine of a subsequently stricken
incriminating testimonial statement made by an absent witness might be
cured by a jury instruction. If the Supreme Court holds true to its belief
that some types of statements are so powerful and prejudicial that limiting
instructions cannot work,162 a similar analysis should be applied to any
statements improperly heard by a jury when it is subsequently determined
that a defendants confrontation right has been violated by an unfulfilled
proffer of wrongful procurement. The same right at issue in Bruton is at
stake anytime the forfeiture-by-wrongdoing doctrine is applied. Once it is
determined that the doctrine does not apply, the only remaining question
when an out-of-court statement has already been conditionally admitted is
whether an instruction to disregard the statement provides an adequate
remedy. Bruton indicates that such an instruction may be deemed
inadequate in situations involving particularly damning inadmissible
evidence.
V. The Impact of Crawford, Davis, and Giles Upon Hearing
Requirements
The U. S. Army Court of Criminal Appeals stated in United States v.
Marchesano that dicta in Giles may indicate a preference for conducting
evidentiary hearings to make forfeiture determinations. The Marchesano
court explained that [a]lthough the Court did not specify a particular
procedure for determining whether the principle applies, in dicta, the
Court appeared to cite with approval the practice of requiring an
evidentiary hearing before admitting a witnesss statement over the
objection of an accused.163 It therefore concluded, in light of Giles and the
crime might also prove forfeiture by wrongdoing with respect to out-of-court statements
made by the missing witness. See id.
160 Bruton, 391 U.S. at 13637.
161 Crawford v. Washington, 541 U.S. 36, 5556 (2004).
162 See, e.g., Gray, 523 U.S. at 192 (citing Richardson v. Marsh, 481 U.S. 200, 207 (1987)).
163 United States v. Machesano, 67 M.J. 535, 542 (2008) (citing Giles v. California, 554 U.S.
353, 37475 n.6 (2008)); cf. California v. Osorio, 81 Cal. Rptr. 3d 167, 173 (Cal. Ct. App. 2008)
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position taken by some of the federal circuits, that it is advisable for

military courts to hold an evidentiary hearing outside of the presence of an
adjudicatory panel to decide whether confrontation forfeiture applies. 164
The portion of Giles seen by the court in Marchesano as favoring
evidentiary hearings may not be a clear indication of a Supreme Court
preference. The language in Giles did not refer to the need for a hearing,
but instead referred to the ability of a trial judge to make a preliminary
evidentiary determination that touches upon the merits of an underlying
charge.165 In addition, only a minority of justices joined in the section of the
opinion in which the language appears.166 However, the practical effect of
Giles may drive the need for a separate hearing in many instances.
Giles requires an intent-to-silence before forfeiture can apply.167 It need
not be the sole motivation of a defendant when procuring the absence of a
witness.168 It is nonetheless something that must be proven in addition to
the wrongdoing itself.169 Evidence in a murder case that a defendant killed
a victim/witness is not enough to admit testimonial statements made by the
decedent under the forfeiture-by-wrongdoing doctrine. Confrontation
forfeiture applies only if it is also shown that the defendant eliminated the
victim/witness for the purpose of preventing testimony.170
This is not necessarily fatal to the proffer method. Intent-to-silence
requirements adopted by lower courts prior to Giles did not always
necessitate evidentiary hearings for making forfeiture determinations. 171 In
addition, the proffer method has continued to be endorsed post-Giles.172
However, the Giles Courts confirmation of this additional substantive
element limits the situations in which the facts relevant to proving an
underlying charge may coalesce with the facts needed to prove forfeiture.
For example, the facts needed to prove a charge that a defendant murdered
a witness after indictment in an earlier matter to avoid conviction would
(relying on the same footnote passage in Giles and declining to consider issues related to
forfeiture, because the trial court had not held an evidentiary hearing).
164
Marchesano, 67 M.J. at 544 n.8.

Giles, 554 U.S. at 37475 n.6.
166 See id. at 354, 37476, 379 (Souter, J., concurring) (but not joining in the Part IID2 of
Justice Scalias opinion which contains footnote 6).
165
167
Id. at 35968.
United States v. Jackson, 706 F.3d 264, 26769 (4th Cir. 2013).
169 See United States v. Dinkins, 691 F.3d 358, 383 (4th Cir. 2012).
170 Giles, 554 U.S. at 35968.
171 See, e.g., United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005).
172 See United States v. Baskerville, 448 F. Appx. 243, 249 (3d Cir. 2011); see also United
States v. Johnson, 403 F. Supp. 2d 721, 81214 (N.D. Iowa 2005) (reaffirming Emerys continued
postCrawford applicability).
168
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also likely prove forfeiture of the right to confront the witness in a

subsequent murder case, because the required elements of proof are the
same, or at least substantially similar.173 The evidence needed to prove
wrongful procurement in the trial of the earlier matter, however, would
include additional facts beyond those necessary to prove the underlying
crime since any intent-to-silence that witness would not have been part of
the original indictment. It could be maintained that wrongful procurement
of witness unavailability is always relevant in any case as evidence of
consciousness of guilt.174 The scope of its admissibility might nonetheless
be limited by its probative value with respect to the offense charged. 175 A
trial court could find allegations that a defendant intended to silence a
witness are not directly relevant, or too prejudicial to be heard by a jury in
the trial for a crime that preceded any witness tampering.
In addition to the practical effect of the proof requirements confirmed
by Giles, application of evidentiary rules to those requirements may play a
role in determining whether a separate forfeiture hearing is required. The
Supreme Court in Crawford stated that it accepted the forfeiture-bywrongdoing doctrine with citation to Reynolds v. United States.176 The
Supreme Court in Reynolds explained that the question becomes
practically one of fact, to be settled as a preliminary to the admission of
secondary evidence. In this respect it is like the preliminary question of the
proof of loss of a written instrument, before secondary evidence of the
contents of the instrument can be admitted.177 In addition, both Giles and
Davis confirm that the forfeiture-by-wrongdoing doctrine is codified by
Federal Rule of Evidence 804(b)(6).178 Rule 804(b)(6) adopts the regularly
applicable procedures contained in Rule 104.179 Rule 104(a) provides in
pertinent part that [t]he court must decide any preliminary question about
whether . . . evidence is admissible.180 The combination of Reynolds and
modern evidentiary rules may, therefore, instruct that a judge should
decide the preliminary factual question first before the secondary evidence
may be heard.
173
See, e.g., United States v. Emery, 186 F.3d 921, 92527 (8th Cir. 1999).
See Commonwealth v. Edwards, 830 N.E.2d 158, 164 n.6 (Mass. 2005).
175 See, e.g., Jenkins v. United States, 80 A.3d 978, 99394 (D.C. 2013).
176 Crawford v. Washington, 541 U.S. 36, 62 (2004) (citing Reynolds v. United States, 98 U.S.
145, 15859 (1878)).
177 Reynolds, 98 U.S. at 159.
178 Giles v. California, 554 U.S. 353, 367 (2008); Davis v. Washington, 547 U.S. 813, 833
(2006).
174
179
180
See H.R. DOC. NO. 10569, at 23 (1997).

FED. R. EVID. 104(a).
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In addition, Rule 104(a) provides that, when deciding a preliminary

question, the court is not bound by evidence rules, except those on
privilege.181 The Supreme Court has not taken a position on the standards
necessary to demonstrate forfeiture, but it has intimated that hearsay
evidence might be considered.182 In so doing, the Court cited Commonwealth
v. Edwards, where the Massachusetts Supreme Judicial Court held that
forfeiture hearings are required.183 Other lower courts have also held that
forfeiture by wrongdoing may be proven by evidence that would
otherwise be inadmissible.184 If the proof of confrontation forfeiture relies
upon inadmissible evidence, Rule 103(d) would seem to require that it be
heard outside of a jurys presence.185
There are undoubtedly situations where a separate hearing may not be
needed to make a forfeiture determination. For example, the appellate
court in United States v. Houlihan recognized that a trial judge did not need
to convene a special mid-trial evidentiary hearing after having already sat
through thirty-seven days of trial.186 Much depends upon what has already
been admitted into evidence by the time a forfeiture question arises. The
Texas Court of Appeals suggested a sensible solution in Gonzalez v. Texas
for trial courts faced with a mid-trial forfeiture question:
In future cases, we encourage the trial courts to consider the
forfeiture issue at the time they are confronted with a
Confrontation Clause objection. When making its forfeiture
determination, a court should consider the evidence admitted up
to that point in the proceeding and, if necessary, hold a hearing
outside the presence of the jury to take additional evidence. If
there is sufficient evidence to demonstrate forfeiture, the court
should admit the evidence over the defendants objection and set
forth on the record its factual findings that support a forfeiture to
allow for a meaningful appellate review of the forfeiture issue. 187
As noted in Gonzalez, a separate mid-trial hearing on forfeiture may not

always be required. A trial court may have heard sufficient testimony by
the time a forfeiture question is presented upon which to make a ruling. If,
however, additional evidence is required or offered on confrontation
forfeiture, the court should take care with the manner by which the
evidence is received. The advice given by the Texas Court of Appeals
181
Id.
Davis v. Washington, 547 U.S. 813, 833 (2006).
183 Id. (citing Commonwealth v. Edwards, 830 N.E.2d 158, 174 (Mass. 2005)).
184 E.g., United States v. White, 116 F.3d 903, 914 (D.C. Cir. 1997); United States v.
Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982).
182
185
See FED. R. EVID. 103(d).

United States v. Houlihan, 92 F.3d 1271, 1281 n.5 (1st Cir. 1996).
187 Gonzalez v. Texas, 155 S.W.3d 603, 610 n.5 (Tex. App. 2004).
186
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seems particularly appropriate if that additional proof of forfeiture consists

of otherwise inadmissible evidence.188
At a minimum, Giles confirms a consideration that could impact the
extent to which a jury should be allowed to hear information relating to
whether or not a defendants right to confront a missing witness has been
forfeited. The post-Giles forfeiture-by-wrongdoing doctrine requires proof
that a defendant is both responsible for the absence of a witness and kept
the witness away for the purpose of preventing testimony.189 Evidence
regarding the first part of the test may be no different than the evidence
that the jury would eventually hear. In a murder case, a jury will be
exposed to evidence that the defendant killed the victim. If the question of
forfeiture involves statements made by the victim, proof that the defendant
killed the witness is not substantially different than evidence that the jury
would be expected to hear.
Proof of an intent-to-silence is not, however, something that would
ordinarily be presented in cases other than those where a charge itself
revolves around elimination of a witness. In such other instances, it is extra
information about how bad a defendant is believed to be. When proven,
there is no unfairness to the defendant, because the defendant created the
situation. However, it is information that may be superfluous to the crime
charged and potentially prejudicial in two respects when wrongful
procurement is not proven. First, it makes a defendant look particularly
unsympathetic, because the defendant is openly accused not only of
committing the crime charged but also eliminating a witness. More
importantly, it also implies that the defendant thought that the prospective
testimony of a missing witness was so devastating that the defendant
needed to get rid of the witness. The subject-to-connection method
therefore, not only runs the risk in those instances that a jury will
prematurely hear potentially inadmissible out-of-court statements that
incriminate a defendant, but also in those with evidence indicating that the
defendant was afraid of having the jury hear the subsequently stricken
accusations.
The requirements of Giles therefore demand that a trial judge carefully
consider what may still need to be proven when a confrontation forfeiture
question arises. If it looks like otherwise inadmissible evidence may be
relied upon to establish forfeiture, such proof should be heard outside the
presence of the jury.190 If only admissible evidence will be offered, the
question remains whether its prejudice would outweigh its probative value
188
See FED. R. EVID. 103(d).

See United States v. Jackson, 706 F.3d 264, 26768 (4th Cir. 2013).
190 See FED. R. EVID. 103(d).
189
198
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in the case if forfeiture is not ultimately shown. Finally, even a wellfounded expectation that forfeiture will be demonstrated does not alleviate
the dilemma that might result if it is not. In those instances where a trial
judge determines that a conditionally admitted statement must be stricken,
the court is stuck with the unenviable task of trying to fix the problem with
potentially inadequate instructions or declaring a mistrial.
CONCLUSION
The modern forfeiture-by-wrongdoing doctrine was initially an
offshoot of the Supreme Courts waiver-by-misconduct cases.191 When
dealing with a defendant who loses confrontation rights by engaging in
disruptive courtroom conduct, the Supreme Court recognizes that no one
formula will be best for all situations.192 The same is true when dealing
with a defendant whose misconduct consists of witness tampering.
Neither the trial judge nor the prosecutor has any control over when the
misconduct may occur. A defendant who intends to get away with a crime
by committing more crimes will not hesitate to twist and distort procedural
rules. Therefore, it may not be possible to establish a hard and fast
procedure for making confrontation forfeiture determinations.
It cannot, however, be reasonably disputed that the better practice is to
determine whether forfeiture by wrongdoing applies before allowing a jury
to hear an out-of-court testimonial statement made by an allegedly
tampered witness.193 A pre-trial forfeiture hearing is not always possible.
However, if the opportunity is available, a preliminary proffer hearing
method similar to that used by the Seventh Circuit for determining the
admissibility of co-conspirator statements would appear to best protect
against complete duplication of efforts by providing enough information to
a trial judge to determine whether the proof adduced at trial will likely be
sufficient to establish forfeiture.194 It also provides the judge with an
opportunity to establish the order in which evidence will be received at
trial to minimize the potential need for mid-trial admissibility hearings by,
in advance, delaying introduction of any out-of-court statements into
evidence until after predicate proof of forfeiture has been received. Finally,
it gives a trial judge the option to expand the pre-trial proceeding into a
full blown evidentiary hearing if it appears that the prosecution intends to
rely upon inadmissible evidence to establish forfeiture, or there are other
191 See, e.g., United States v. Thevis, 665 F.2d 616, 630 (5th Cir. 1982); United States v.
Carlson, 547 F.2d 1346, 135860 (8th Cir. 1976).
192
Illinois v. Allen, 397 U.S. 337, 343 (1970).

See United States v. White, 116 F.3d 903, 915 (D.C. Cir. 1997).
194 See United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991).
193
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factors related to the presentation of proof on the forfeiture issue that

might warrant later excluding the jury.
The more ordinary situation is that a trial judge will be suddenly faced
mid-trial with an attempt to introduce an out-of-court statement by a
witness who unexpectedly did not appear. In those situations, the advice of
the Texas Court of Appeals in Gonzalez v. State seems prudent and
workable.195 If enough evidence has been admitted up to that point upon
which to make a forfeiture determination, it may not be necessary to
unduly disrupt the proceedings to make an admissibility decision. In the
event that forfeiture has not yet been adequately shown, the inconvenience
of a mid-trial hearing may be far more desirable than the prospect of
potentially needing to later declare a mistrial if the statement is
conditionally allowed with the hope that later proof will justify its
admission. Circumstances will be different in every case and it cannot be
said, even in jurisdictions that now require a pre-admission hearing, that
the failure to conduct one will always constitute error. 196 Premature jury
exposure to a subsequently stricken accusatory testimonial statement
nonetheless presents such great risk of an incurable problem that a court
needs to carefully weigh the pros and cons of short-term efficiency against
the potential for mistrial, appeal, and multi-level consumption of judicial
resources when deciding whether or not to convene a mid-trial
admissibility hearing.
Whatever method is used to make a forfeiture determination,
something similar to the procedures uniformly endorsed in co-conspirator
statement cases should be followed for announcing the courts evidentiary
ruling.197 To the extent possible, a judge should refrain from making
statements to a jury which indicate the judge has decided that a defendant
has committed wrongdoing. There is risk that a jury would be influenced
by an explanation that the judge has determined a defendant has not only
caused the absence of a witness, but also has done so to keep the witness
from testifying. Such an explanation would only highlight any out-of-court
statement that the jury was about to hear and implicitly attach apparent
importance to it that is lacked by all other evidence.
The confrontation forfeiture-by-wrongdoing doctrine combats conduct
abhorrent to the criminal justice system.198 It would be contrary to public
195 155 S.W.3d 603, 610 n.5 (Tex. Crim. App. 2004) (stating that courts should consider
forfeiture issues when they are confronted with Confrontation Clause objections, and, if
necessary, hold a hearing outside the presence of the jury).
196 See, e.g., United States v. Miller, 116 F.3d 641, 66869 (2d Cir. 1997).
197 See, e.g., United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979).
198 H.R. Doc. No. 10569, at 22 (1997) (Advisory Committee note); see United States v.
Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982).
200
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policy, common sense and the underlying purpose of the confrontation

clause to tolerate witness tampering.199 Admission of out-of-court
testimonial statements through the doctrine nonetheless impacts a
defendants right to confrontation and possibly the right to due process.
Therefore, a defendant is entitled to a reliable and clear-cut determination
that the forfeiture-by-wrongdoing doctrine applies when it is used to admit
incriminating testimonial out-of-court statements.
199
United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976).

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DONALDSON_FINAL (DO NOT DELETE)

A Reliable and Clear-Cut Determination:

ver a century ago, the U.S. Supreme Court decided in Reynolds v.

City attorney and municipal prosecutor, Walla Walla, Washington, 1996present;

98 U.S. 145, 158 (1878).

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by a defendant.12 As numerous confrontation exceptions perished under

Jurisdictions Which Require a Separate Evidentiary Hearing

One of the leading modern cases on confrontation forfeiture by

Davis, 547 U.S. at 833.

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The Second Circuit subsequently clarified that in addition to the hearing, a

Mastrangelo, 693 F.2d at 273.

830 N.E.2d 158, 174 (Mass. 2005).

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Court of Colorado succinctly explained the basic framework utilized with

The New Jersey Supreme Court followed suit post-Giles by adopting a

Balano, 618 F.2d at 62829.

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common sense and the underlying purpose of the confrontation clause.27

The rationales expressed by the Tenth and Second Circuits therefore,

DONALDSON_FINAL (DO NOT DELETE)

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practice to first secure the predicates for admissibility before making an

DONALDSON_FINAL (DO NOT DELETE)

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The Eighth Circuit Court of Appeals rejected the defendants

DONALDSON_FINAL (DO NOT DELETE)

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The defendant in Baskerville was charged and subsequently convicted of

DONALDSON_FINAL (DO NOT DELETE)

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The Court of Appeals for the District of Columbia upheld the

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court.65 It has therefore decided against requiring mandatory pretrial

See Baltas, 236 F.3d at 3435.

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subject-to-connection method. However, a trial judge may be left in a

DONALDSON_FINAL (DO NOT DELETE)

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can rule on each statement as it is elicited based on the evidence

However, it discourages full blown preliminary hearings because they are

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make such evidentiary determinations, but it holds that they have no

Bell procedures do not contemplate or require admissibility determinations

Bell, 573 F.2d at 1044 (citations omitted).

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standards established in United States v. James.94 The Fifth Circuit in James

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James essentially established a preferred order of proof, as opposed to an

Fragoso, 978 F.2d at 899.

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