In State v. Cox, the Court addressed, for the first time, the “unavailability” element of the forfeiture-by-wrongdoing exception to the confrontation clause. Where, in Cox, the declarant-witness was not physically unavailable (i.e., she showed up), and where she had not flat out refused to testify, a unanimous Court held that the state had failed to prove that she was unavailable. The Court decided the case narrowly on its facts and passed on the opportunity to delineate a test for unavailability.
A Whodunnit & A Reluctant Witness
Brandon Cox was charged with the murder of a cab driver, James Moody. At four o’clock one morning, a motorist came upon Moody’s taxi, its doors standing open and engine idling, stopped in front of an apartment building in Brooklyn Center. The motorist discovered Moody’s body sprawled half-in, half-out of the driver’s side door. Moody had been shot three times. The police developed a largely circumstantial case against Cox. The only direct evidence was also the most damning: witness S.T., who lived in the apartment building, told a grand jury that on the night of the murder she overheard Cox admitting that he shot Moody.
Midway through the trial, the state moved to release S.T. from her subpoena and introduce her grand jury testimony. The trial court held an evidentiary hearing outside the presence of the jury. S.T. testified that she had received a surprise visit at her home from Cox’s mother and the mother of Cox’s child. In tears, the two women told S.T. that Cox was “not going to be able to do the time.” S.T. explained that they were “basically asking me not to testify.” There was evidence that Cox had orchestrated the women’s visit from his jail cell. The prosecutor pressed S.T. at the hearing as to whether she would testify if the court ordered her to. S.T. said she didn’t know.
The trial court held that Cox had forfeited his right of confrontation. The court found that S.T. was “extreme[ly] reluctant” to testify. Although there was no “explicit threat” made, S.T. appeared to be “legitimately in fear” and “likely” would not testify. The court held that she was unavailable “as a practical and legal matter.” Her grand jury testimony was read to the jury.
A Rock-Ribbed Rule & A Squishy Standard
Forfeiture-by-wrongdoing is a common-law exception to the confrontation right. It receives a passing reference in Crawford (“the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability“). Basically, if a defendant engaged in wrongful conduct that was intended to and did in fact procure the unavailability of a witness, he forfeits his right to confront the witness. As a predicate matter, however, the witness has got to be unavailable. What does that mean in the confrontation clause context? It is worth noting that when the rules of evidence use “unavailability,” they leave nothing to guesswork. Minn.R.Evid. 804 lays out, with martial precision, the situations in which unavailability will be found, including, most germanely to the facts in Cox, when the witness “persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so.” Next to the definitude of the rule, authority on the meaning of “unavailable” in the confrontation clause setting seems a tad squishy. In Barber v. Page, the U.S. Supreme Court explained that a witness is not unavailable for confrontation clause purposes “unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” In Ohio v. Roberts — yes, the case overruled by Crawford — the Court said that the touchstone of the prosecution’s attempts to produce the witness is “reasonableness.”
How Not to Encourage the Wrongdoing in Forfeiture-By-Wrongdoing?
If, as someone has said, the point of oral argument is to permit the Court to get at the vitals of the issues, then anyone who watched the arguments in Cox might reasonably have asked of the eventual opinion: where’s the beef? During the arguments, every one of the Justices fixed on the problem of formulating a workable rule, standard or test for unavailability.
- Justice Gildea: What is the test of unavailability?
- Justice Meyer: Is it the defendant’s test that the state must subpoena the witness, and the witness physically fail to appear for trial?
- Justice Dietzen: Is the defense proposing a rule that the witness would have to get in front of the jury and say ‘I’m afraid’?
- Justice Magnuson: What guidance do we give to other judges in the future? How far do they have to go if we don’t have a clear line? When is it going to be dark enough to be recognized?
- Justice G. Barry Anderson: Why shouldn’t the rule be that the witness has to say it, make it clear, that she won’t testify?
- Justice Page: What is the harm in having a rule that puts the witness in the position of saying, I will not testify?
- Justice Paul Anderson: The state should want a clear rule–judge, take it to the point of refusal–so that you won’t be back up here arguing this mushy area.
In its opinion, however, the Court fastidiously abstains from rule-making. The Court cites Barber v. Page and Ohio v. Roberts to the effect discussed above — the state must make a good-faith effort, measured by its reasonableness, to obtain the witness’s attendance at trial — and follows this with two essentially factual observations: the state never actually called S.T. as a witness and the state never established that she would refuse to testify. Based on this record, the Court said, the state has failed to establish unavailability by a preponderance of the evidence. Litigants in subsequent cases will doubtless extrapolate from these facts to a rule or rules. State v. Cox, they will argue, stands for the proposition that the state must actually call the witness to establish unavailability. Or, State v. Cox holds that the witness must actually refuse to testify before confrontation clause unavailability can be found. It doesn’t. Particularly given the oral arguments, what is most conspicuous about Cox is absence. Perhaps the Court considered that there might be some harm, after all, in promulgating a hard-and-fast unavailability rule. Underpinning forfeiture-by-wrongdoing is the prospect that the defendant has taken deliberate steps to cause the witness to feel a sense of jeopardy. An absolute rule might create a perverse incentive for a defendant to ratchet up his threatening behavior so as to remove any possibility that the witness will respond to a subpoena, or take the witness stand. It might encourage despicable behavior.
Even with its lack of a clear rule, Cox is useful. We are closer to what unavailability requires; it is more than reluctance or fear or ambivalence. After Cox, prosecutors who seek to circumvent confrontation on forfeiture-by-wrongdoing grounds must know that if they fail to obtain the witness’s appearance or call the witness at trial, they do so at their own peril.