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A Better Partnership
June 19, 2013

MSC holds that the forfeiture-by-wrongdoing-rule requires the prosecution to show that a defendant acted with a particular purpose to cause a declarant's unavailability

In People v. Burns, the MSC held that the forfeiture-by-wrongdoing rule, MRE 804(b)(6), which may allow hearsay evidence at trial, requires the prosecution to show that a defendant actually intended to procure a declarant's unavailability to testify at trial.

According to MRE 804(b)(6), a defendant can forfeit his right to exclude hearsay evidence by his own wrongdoing. The prosecution must show by a preponderance of the evidence that the defendant engaged in or encouraged wrongdoing, the wrongdoing was intended to procure the declarant's unavailability, and the wrongdoing did procure unavailability. In this case, the MSC affirmed the COA's ruling that the trial court abused its discretion by admitting an unavailable child's testimony that alleged she was sexually abused by her father. The father supposedly made threatening statements to the child to keep silent at the time of the abuse. The prosecution argued that the threats were sufficient to satisfy the intention prong of the wrongdoing rule because the statements showed that the defendant could have known the child would refuse to testify because of his threats. The court disagreed and reasoned that since the alleged statements were made before the suspected abuse was reported, the defendant's mere foreseeability that the wrongdoing may cause the child's unavailability at trial was not enough to show the requisite intent. As a result, the MSC held that the prosecutor failed to establish by a preponderance of the evidence that defendant's conduct was intended to, and did, cause the child's unavailability at trial. The MSC affirmed the judgment of the COA and remanded the case for a new trial.

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