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In Chambers

| Summer 2016 15



he Sixth Amendment to the United States

Constitution guarantees a criminal defendant

the right to confront the witnesses against

him, generally referred to as the Confronta-

tion Clause. But what if the witness does not appear?

Clearly, any effort to introduce statements by that per-

son would be subject to hearsay objections.

Two common law exceptions were recognized at the

time the Constitution was adopted.The dying declara-

tion was one, made by someone “…on the brink of

death and aware that he was dying.” This is recognized

in Texas by Rule 804(b)(2) of the Texas Rules of Evi-


The second exception was forfeiture by wrongdoing,

in which the defendant engaged in conduct intended to

keep the witness from testifying, either personally or

by someone acting on his behalf. This is recognized in

Texas by Article 38.49 of the Texas Code of Criminal


Recent History

The recent history of this latter exception is some-

thing about which judges need to be aware. In 2004,


Crawford v.Washington

, the US Supreme Court held

that a testimonial statement is admissible only if the

person making it is available for cross-examination.


Justice Scalia wrote at length about the history of the

Confrontation Clause, but also recognized the right of

confrontation could be waived by a defendant, under

the doctrine of forfeiture by wrongdoing, after examin-

ing the defendant’s actions.


That forfeiture was based

on equitable grounds, citing

Reynolds v. U.S.,

in which

the Supreme Court held:

“The rule has its foundation in the maxim that no

one shall be permitted to take advantage of his own

wrong,… It is the outgrowth of a maxim based on the

principles of common honesty, and, if properly adminis-

tered, can harm no one.”


Forfeiture byWrongdoing

By Kerry L. Neves

Judge, 10


District Court

Galveston County,Texas

The recent history

of this latter

exception is

something about

which judges need

to be aware.”