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16

In Chambers

| Summer 2016

After

Crawford

, the Texas Court of Criminal Appeals

adopted forfeiture by wrongdoing in a murder case,

Gonzales v. State

.

4

A victim told police the person

who shot her was the defendant, then she died a

few hours later. At trial, her statement was ob-

jected to as hearsay, but was admitted as an

excited utterance.

5

The Court of Appeals

upheld defendant’s conviction, stating he

had forfeited his right of confrontation

under the doctrine of forfeiture by

wrongdoing by killing her.

6

The Court of Criminal Appeals

discussed how courts after

Craw-

ford

had taken an expansive view of

the forfeiture by wrongdoing doc-

trine.

7

Some held the wrongdo-

ing could be the same crime for

which the defendant was being

tried, and without reference to

whether the intent was to pre-

vent the person from testifying.

8

Others held the doctrine could

not apply in those circumstances,

as the wrongdoing only indirect-

ly caused the witness to be ab-

sent.

9

The Texas Court accepted

the former position, applying the

doctrine even though the act with

which Crawford was charged was

the same act which caused the

witness to be unavailable.

10

After

Gonzales

, several Courts

of Appeal followed the forfeiture

by wrongdoing doctrine. One court

found that intimidation could be used

to apply the doctrine. In

Sohail v. State

,

after reports the defendant had struck

his wife, she refused to testify, even after

being held in contempt by the trial court.

11

During a hearing outside the presence of

the jury, evidence was presented which sup-

ported the court’s conclusion that the wife was

refusing to testify out of fear because of threats

defendant had made to her. The court found that

“physical unavailability” was not the only way for the

doctrine to be applied.

12

In 2008, however, the doctrine was again reviewed by the

Supreme Court, which narrowed and limited its application. In

Giles v. California

, the defendant had been convicted of the murder