The confrontation waiver rule

Boston University Law Review

Volumn 76, Issue 5, 1996, Pages 835-893

  Kroger, John R ^a  

^a NONE

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EID: 0030329083     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (347)

1. The Cost of Silence, BOSTON GLOBE, Nov. 6, 1993, at 10 (editorial); Kevin Cullen, The Code of Silence Is Cracked in Charlestown, BOSTON GLOBE, Oct. 29, 1993, at 1; Decoding Charlestown, BOSTON GLOBE, July 28, 1994, at 10.
2. The Cost of Silence, BOSTON GLOBE, Nov. 6, 1993, at 10 (editorial); Kevin Cullen, The Code of Silence Is Cracked in Charlestown, BOSTON GLOBE, Oct. 29, 1993, at 1; Decoding Charlestown, BOSTON GLOBE, July 28, 1994, at 10.
3. The Cost of Silence, BOSTON GLOBE, Nov. 6, 1993, at 10 (editorial); Kevin Cullen, The Code of Silence Is Cracked in Charlestown, BOSTON GLOBE, Oct. 29, 1993, at 1; Decoding Charlestown, BOSTON GLOBE, July 28, 1994, at 10.
4. Cullen, supra note 1, at 1.
5. Cullen, supra note 1, at 1; Dick Lehr, Getting Away with Murder, BOSTON GLOBE, Oct. 11, 1992, at 1.
6. The Cost of Silence, supra note 1, at 10; Cullen, supra note 1, at 1; Decoding Charlestown, supra note 1, at 10; Lehr, supra note 3, at 1.
7. The Cost of Silence, supra note 1, at 10; Cullen, supra note 1, at 1; Decoding Charlestown, supra note 1, at 10; Lehr, supra note 3, at 1.
8. Cullen, supra note 1, at 1; Decoding Charlestown, supra note 1, at 10; Lehr, supra note 3, at 1.
9. Judy Rakowsky, 'Code' Judge's Ruling Raises Eyebrows, BOSTON GLOBE, Jan. 30, 1995, at 13 (referring to the murder trial of Michael Fitzgerald, John Houlihan, and Joseph Nardone as the "Charlestown 'Code of Silence' case").
10. United States v. Houlihan, 887 F. Supp. 352, 356 n.3 (D. Mass. 1995), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996).
11. Id. at 356 & n.3.
12. Id. at 356.
13. Id.; Matthew Brelis. Townie Who Talked Was Slain Month Later, BOSTON GLOBE, Nov. 4, 1993, at 31.
14. Houlihan, 887 F. Supp. at 356.
15. Id. at 356 n.5.
16. Id. at 356; Lehr, supra note 3, at 1.
17. Lehr, supra note 3, at 1.
18. Houlihan, 887 F. Supp. at 355.
19. Id. at 356 (discussing deferment of the waiver issue until the government had "presented the great bulk of its case").
20. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. FED. R. EVID. 802 provides, in part, "Hearsay is not admissible except as provided by these rules." There are a number of exceptions to the Confrontation Clause and the hearsay rule, pursuant to which extrajudicial hearsay testimony may be admitted at trial. See, e.g., FED. R. EVID. 803-04 (listing exclusions and exceptions to the hearsay rule); Ohio v. Roberts, 448 U.S. 56, 70 (1980) (holding testimony from a preliminary hearing admissible when defense counsel's questioning amounted to cross-examination); Mancusi v. Stubbs, 408 U.S. 204, 216 (1972) (holding previously recorded testimony of a cross-examined witness admissible during the defendant's second trial); Dutton v. Evans, 400 U.S. 74, 80-83 (1970) (holding the declarations of coconspirators admissible even if made during the concealment phase of a conspiracy); California v. Green, 399 U.S. 149, 164 (1970) (holding preliminary hearing testimony admissible so that a "witness who concedes making the statements may be asked to defend . . . the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial to both stories"); Mattox v. United States, 146 U.S. 140, 152 (1892) (holding dying declarations admissible "on ground of necessity"). In the Code of Silence case, none of these exceptions applied to the taped Sargent statement. For a history of the hearsay rule, see generally CHARLES T. MCCORMICK, MCCORMICK ON EVIDENCE §§ 244, 254-324 (John William Strong et al. eds., 4th ed, 1992). For an analysis of the current requirements of the Confrontation Clause and its relation to the hearsay rule, see JoAnne Epps, Passing the Confrontation Clause Stop Sign: Is All Hearsay Constitutionally Admissible?, 77 KY. L.J. 7 (1988-89).
21. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. FED. R. EVID. 802 provides, in part, "Hearsay is not admissible except as provided by these rules." There are a number of exceptions to the Confrontation Clause and the hearsay rule, pursuant to which extrajudicial hearsay testimony may be admitted at trial. See, e.g., FED. R. EVID. 803-04 (listing exclusions and exceptions to the hearsay rule); Ohio v. Roberts, 448 U.S. 56, 70 (1980) (holding testimony from a preliminary hearing admissible when defense counsel's questioning amounted to cross-examination); Mancusi v. Stubbs, 408 U.S. 204, 216 (1972) (holding previously recorded testimony of a cross-examined witness admissible during the defendant's second trial); Dutton v. Evans, 400 U.S. 74, 80-83 (1970) (holding the declarations of coconspirators admissible even if made during the concealment phase of a conspiracy); California v. Green, 399 U.S. 149, 164 (1970) (holding preliminary hearing testimony admissible so that a "witness who concedes making the statements may be asked to defend . . . the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial to both stories"); Mattox v. United States, 146 U.S. 140, 152 (1892) (holding dying declarations admissible "on ground of necessity"). In the Code of Silence case, none of these exceptions applied to the taped Sargent statement. For a history of the hearsay rule, see generally CHARLES T. MCCORMICK, MCCORMICK ON EVIDENCE §§ 244, 254-324 (John William Strong et al. eds., 4th ed, 1992). For an analysis of the current requirements of the Confrontation Clause and its relation to the hearsay rule, see JoAnne Epps, Passing the Confrontation Clause Stop Sign: Is All Hearsay Constitutionally Admissible?, 77 KY. L.J. 7 (1988-89).
22. Houlihan, 887 F. Supp. at 362-65 (discussing witness testimony that defendant Nardone recruited another man to help him kill Sargent on behalf of Houlihan and Fitzgerald).
23. Id. at 363-65.
24. Id. at 358.
25. Id. at 356 n.5.
26. Id. at 355 (noting that the issue of "whether a defendant who causes the absence from trial of a potential witness against him has waived the right to object on Confrontation Clause and hearsay grounds to the admission of the witness' prior out-of-court statements" was one of first impression in the First Circuit).
27. Pointer v. Texas, 380 U.S. 400, 403 (1965).
28. Ohio v. Roberts, 448 U.S. 56, 64 (1980) (quoting Chambers v. Mississippi, 410 U.S. 284, 195 (1973)).
29. See Rakowsky, supra note 6, at 13 (citing Professor Laurence Tribe's opinion that Judge Young prematurely took the question of guilt or innocence for the murders from the jury).
30. Id.
31. Judy Rakowsky, 3 Convicted in 'Code of Silence' Trial, BOSTON GLOBE, Mar. 23, 1995, at 1.
32. United States v. Houlihan, 887 F. Supp. 352, 359 (D. Mass. 1995) (concluding that "the waiver analysis suggested by the government was grounded in both logic and precedent and was thus applicable to the case before it"), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996).
33. The government indicted twelve persons in the Code of Silence case. Five defendants were severed from the main trial. Of the seven remaining defendants, three - Joseph Houlihan, Allan Skinner, and Jennierose Lynch - pleaded guilty before or during the trial. See id. at 355 n.2. Michael Fitzgerald, John Houlihan and Joseph Nardone were found guilty by the jury at the conclusion of the trial. The final defendant, William Herd, was acquitted of murder at trial but later pled guilty to related bank robbery and firearms charges. John Houlihan, Nardone and Fitzgerald were sentenced to life without parole; Skinner to seventeen and a half years; Lynch to ten years; and Herd to twenty years. See 'Code' Case Figure OK's-20-Year Term, BOSTON GLOBE, Oct. 21, 1995, at 19; Paul Langner, Last Defendant Pleads Guilty in Code of Silence Case, BOSTON GLOBE, June 17, 1995, at 10.
34. The government indicted twelve persons in the Code of Silence case. Five defendants were severed from the main trial. Of the seven remaining defendants, three - Joseph Houlihan, Allan Skinner, and Jennierose Lynch - pleaded guilty before or during the trial. See id. at 355 n.2. Michael Fitzgerald, John Houlihan and Joseph Nardone were found guilty by the jury at the conclusion of the trial. The final defendant, William Herd, was acquitted of murder at trial but later pled guilty to related bank robbery and firearms charges. John Houlihan, Nardone and Fitzgerald were sentenced to life without parole; Skinner to seventeen and a half years; Lynch to ten years; and Herd to twenty years. See 'Code' Case Figure OK's-20-Year Term, BOSTON GLOBE, Oct. 21, 1995, at 19; Paul Langner, Last Defendant Pleads Guilty in Code of Silence Case, BOSTON GLOBE, June 17, 1995, at 10.
35. Sam Howe Verhovek, Gang Intimidation Takes Rising Toll of Court Cases, N.Y. TIMES, Oct. 7, 1994, at A1 (reporting testimony by Washington, D.C. prosecutors that the city was unable to prosecute between thirty and thirty-five percent of its murder cases because witnesses refused to cooperate).
36. See id. (remarking that gang members brazenly attend trial proceedings and intimidate witnesses by silently drawing a finger across the throat).
37. See infra Part I.
38. See cases cited infra Part I.A.
39. This Article focuses exclusively on federal cases involving waiver of the Sixth Amendment right to confrontation by engaging in witness tampering. For waivers of constitutional rights in other criminal justice contexts, see generally Steven A. Greenburg, Learning Disabled Juveniles and Miranda Rights: What Constitutes Voluntary, Knowing, and Intelligent Waiver, 21 GOLDEN GATE U. L. REV. 487 (1991) (arguing that juveniles lack the cognitive ability to understand the consequences of waiving their rights); Maurita Horn, Confessional Stipulations: Protecting Waiver of Constitutional Rights, 61 U. CHI. L. REV. 225 (1994) (discussing guilty pleas, stipulations and confessions in federal cases); William Pizzi, Waiver of Rights in the Interrogation Room: The Court's Dilemma, 23 CONN. L. REV. 229 (1991) (discussing waiver of Fifth Amendment rights before the right to counsel attaches); William Stuntz, Waiving Rights in Criminal Procedure, 75 VA. L. REV. 761 (1989) (discussing waiver of the right to counsel in context of gathering evidence); Note, North Carolina v. Butler: Implied Waiver of Fifth and Sixth Amendment Rights Acceptable to Supreme Court, 3 CRIM. JUST. J. 561 (1980) (discussing implied waiver of the right against self-incrimination and the right to counsel).
40. This Article focuses exclusively on federal cases involving waiver of the Sixth Amendment right to confrontation by engaging in witness tampering. For waivers of constitutional rights in other criminal justice contexts, see generally Steven A. Greenburg, Learning Disabled Juveniles and Miranda Rights: What Constitutes Voluntary, Knowing, and Intelligent Waiver, 21 GOLDEN GATE U. L. REV. 487 (1991) (arguing that juveniles lack the cognitive ability to understand the consequences of waiving their rights); Maurita Horn, Confessional Stipulations: Protecting Waiver of Constitutional Rights, 61 U. CHI. L. REV. 225 (1994) (discussing guilty pleas, stipulations and confessions in federal cases); William Pizzi, Waiver of Rights in the Interrogation Room: The Court's Dilemma, 23 CONN. L. REV. 229 (1991) (discussing waiver of Fifth Amendment rights before the right to counsel attaches); William Stuntz, Waiving Rights in Criminal Procedure, 75 VA. L. REV. 761 (1989) (discussing waiver of the right to counsel in context of gathering evidence); Note, North Carolina v. Butler: Implied Waiver of Fifth and Sixth Amendment Rights Acceptable to Supreme Court, 3 CRIM. JUST. J. 561 (1980) (discussing implied waiver of the right against self-incrimination and the right to counsel).
41. This Article focuses exclusively on federal cases involving waiver of the Sixth Amendment right to confrontation by engaging in witness tampering. For waivers of constitutional rights in other criminal justice contexts, see generally Steven A. Greenburg, Learning Disabled Juveniles and Miranda Rights: What Constitutes Voluntary, Knowing, and Intelligent Waiver, 21 GOLDEN GATE U. L. REV. 487 (1991) (arguing that juveniles lack the cognitive ability to understand the consequences of waiving their rights); Maurita Horn, Confessional Stipulations: Protecting Waiver of Constitutional Rights, 61 U. CHI. L. REV. 225 (1994) (discussing guilty pleas, stipulations and confessions in federal cases); William Pizzi, Waiver of Rights in the Interrogation Room: The Court's Dilemma, 23 CONN. L. REV. 229 (1991) (discussing waiver of Fifth Amendment rights before the right to counsel attaches); William Stuntz, Waiving Rights in Criminal Procedure, 75 VA. L. REV. 761 (1989) (discussing waiver of the right to counsel in context of gathering evidence); Note, North Carolina v. Butler: Implied Waiver of Fifth and Sixth Amendment Rights Acceptable to Supreme Court, 3 CRIM. JUST. J. 561 (1980) (discussing implied waiver of the right against self-incrimination and the right to counsel).
42. This Article focuses exclusively on federal cases involving waiver of the Sixth Amendment right to confrontation by engaging in witness tampering. For waivers of constitutional rights in other criminal justice contexts, see generally Steven A. Greenburg, Learning Disabled Juveniles and Miranda Rights: What Constitutes Voluntary, Knowing, and Intelligent Waiver, 21 GOLDEN GATE U. L. REV. 487 (1991) (arguing that juveniles lack the cognitive ability to understand the consequences of waiving their rights); Maurita Horn, Confessional Stipulations: Protecting Waiver of Constitutional Rights, 61 U. CHI. L. REV. 225 (1994) (discussing guilty pleas, stipulations and confessions in federal cases); William Pizzi, Waiver of Rights in the Interrogation Room: The Court's Dilemma, 23 CONN. L. REV. 229 (1991) (discussing waiver of Fifth Amendment rights before the right to counsel attaches); William Stuntz, Waiving Rights in Criminal Procedure, 75 VA. L. REV. 761 (1989) (discussing waiver of the right to counsel in context of gathering evidence); Note, North Carolina v. Butler: Implied Waiver of Fifth and Sixth Amendment Rights Acceptable to Supreme Court, 3 CRIM. JUST. J. 561 (1980) (discussing implied waiver of the right against self-incrimination and the right to counsel).
43. Throughout this Article, I use the phrase "confrontation waiver rule" to refer to the legal rule adopted by the courts under which a defendant who procures a witness's absence is held to have waived the right to confront that witness at trial. My name for this line of cases is overinclusive, for a defendant can waive the right to confrontation in ways other than by witness tampering. See, e.g., Brookhart v. Janis, 384 U.S. 1, 4 (1966) (stating that a defendant who pleads guilty waives the right to confront accusers); Diaz v. United States, 223 U.S. 442, 448 (1911) (ruling that a defendant waives right to object to a hearsay statement on confrontation grounds when he or she offers the statement). My proposed term also ignores the fact that a defendant who procures a witness's absence may also waive statutory rights to exclude hearsay statements under the Federal Rules of Evidence. Thus, a more precise, though overly verbose, name for the rule would be the "witness tampering confrontation and hearsay objection waiver rule."
44. 380 U.S. 400, 405 (1965).
45. Idaho v. Wright, 497 U.S. 805, 814-15 (1990); Ohio v. Roberts, 448 U.S. 56, 66 (1980).
46. For a discussion of the leading federal cases, see David Tess, Note, Losing the Right to Confront: Defining Waiver to Better Address a Defendant's Actions and Their Effects on a Witness, 27 U. MICH. J.L. REFORM 877 (1994) (discussing waiver of confrontation rights and its application to child abuse defendants), and Lizbeth A. Turner, Comment, Admission of Grand Jury Testimony under the Residual Hearsay Exception, 59 TUL. L. REV. 1033, 1056-1065 (1985) (setting out a three-step approach to determine admissibility of residual hearsay). Two additional articles note the existence of the doctrine. See Judd Burstein, Admission of Unavailable Witness' Grand Jury Testimony, 4 CARDOZO L. REV. 263, 277-79 (1983) (determining that prior grand jury testimony of an unavailable witness should be admitted "only where it has been shown . . . that a criminal defendant is responsible for both the witness' unavailability and the concomitant need for the grand jury testimony"); Glen Weissenberger, The Admissibility of Grand Jury Transcripts: Avoiding the Constitutional Issue, 59 TUL. L. REV. 335, 351 n.52 (1984).
47. For a discussion of the leading federal cases, see David Tess, Note, Losing the Right to Confront: Defining Waiver to Better Address a Defendant's Actions and Their Effects on a Witness, 27 U. MICH. J.L. REFORM 877 (1994) (discussing waiver of confrontation rights and its application to child abuse defendants), and Lizbeth A. Turner, Comment, Admission of Grand Jury Testimony under the Residual Hearsay Exception, 59 TUL. L. REV. 1033, 1056-1065 (1985) (setting out a three-step approach to determine admissibility of residual hearsay). Two additional articles note the existence of the doctrine. See Judd Burstein, Admission of Unavailable Witness' Grand Jury Testimony, 4 CARDOZO L. REV. 263, 277-79 (1983) (determining that prior grand jury testimony of an unavailable witness should be admitted "only where it has been shown . . . that a criminal defendant is responsible for both the witness' unavailability and the concomitant need for the grand jury testimony"); Glen Weissenberger, The Admissibility of Grand Jury Transcripts: Avoiding the Constitutional Issue, 59 TUL. L. REV. 335, 351 n.52 (1984).
48. For a discussion of the leading federal cases, see David Tess, Note, Losing the Right to Confront: Defining Waiver to Better Address a Defendant's Actions and Their Effects on a Witness, 27 U. MICH. J.L. REFORM 877 (1994) (discussing waiver of confrontation rights and its application to child abuse defendants), and Lizbeth A. Turner, Comment, Admission of Grand Jury Testimony under the Residual Hearsay Exception, 59 TUL. L. REV. 1033, 1056-1065 (1985) (setting out a three-step approach to determine admissibility of residual hearsay). Two additional articles note the existence of the doctrine. See Judd Burstein, Admission of Unavailable Witness' Grand Jury Testimony, 4 CARDOZO L. REV. 263, 277-79 (1983) (determining that prior grand jury testimony of an unavailable witness should be admitted "only where it has been shown . . . that a criminal defendant is responsible for both the witness' unavailability and the concomitant need for the grand jury testimony"); Glen Weissenberger, The Admissibility of Grand Jury Transcripts: Avoiding the Constitutional Issue, 59 TUL. L. REV. 335, 351 n.52 (1984).
49. For a discussion of the leading federal cases, see David Tess, Note, Losing the Right to Confront: Defining Waiver to Better Address a Defendant's Actions and Their Effects on a Witness, 27 U. MICH. J.L. REFORM 877 (1994) (discussing waiver of confrontation rights and its application to child abuse defendants), and Lizbeth A. Turner, Comment, Admission of Grand Jury Testimony under the Residual Hearsay Exception, 59 TUL. L. REV. 1033, 1056-1065 (1985) (setting out a three-step approach to determine admissibility of residual hearsay). Two additional articles note the existence of the doctrine. See Judd Burstein, Admission of Unavailable Witness' Grand Jury Testimony, 4 CARDOZO L. REV. 263, 277-79 (1983) (determining that prior grand jury testimony of an unavailable witness should be admitted "only where it has been shown . . . that a criminal defendant is responsible for both the witness' unavailability and the concomitant need for the grand jury testimony"); Glen Weissenberger, The Admissibility of Grand Jury Transcripts: Avoiding the Constitutional Issue, 59 TUL. L. REV. 335, 351 n.52 (1984).
50. New York state cases are analyzed in Michael Martin, Witness Tampering: Hearsay and Confrontation Exceptions, N.Y. L.J., Apr. 14, 1995, at 3 (discussing People v. Gerraci, 649 N.E.2d 817 (N.Y. 1995)). A discussion of the use of the rule in courts of military justice appears in Roger D. Washington, United States v. Hines: An Examination of Waiver Under the Confrontation Clause, ARMY LAWYER, March 1987, at 22. The leading cases are cited in 4 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE ¶ 800[04] (1975 & Supp. 1996).
51. See United States v. Carlson, 547 F.2d 1346, 1358 (8th Cir. 1976) ("Whether the accused waives his right of confrontation under these circumstances is an issue which apparently has never been directly considered by a federal court or, so far as we have been able to ascertain, by any other court."). This statement is inaccurate. For a discussion of analogous pre-modern common law cases, see infra Part IV. For a discussion of Reynolds v. United States, 98 U.S. 145 (1878), a related Supreme Court decision, see infra Part II.A-B.
52. The author bases this generalization on his experience assisting with the trial of the Charlestown "Code of Silence" murders case.
53. United States v. Potamitis, 739 F.2d 784, 788 (2d Cir. 1984). In Steele v. Taylor, 684 F.2d 1193, 1201 n.8 (6th Cir. 1982), the Sixth Circuit initially refused to deem application of the rule a "waiver," viewing it instead as a nonintentional forfeiture. No other court has followed this reasoning, and the Sixth Circuit has abandoned it in subsequent cases. See United States v. Gomez-Lemos, 939 F.2d 326, 334 n.3 (6th Cir. 1991) (deeming defendants to have "waived" their confrontation rights); United States v. Barlow, 693 F.2d 954, 961 n.4 (6th Cir. 1982) (approving the Tenth Circuit's "waiver" theory). Treating the rule as forfeiture is appealing, because the term lacks the implications of intent that are inherent in waiver. However, there is little or no constitutional basis for forfeiture of confrontation and cross-examination rights when there is no intentional waiver. As the Supreme Court has stated, "a wholesale and complete 'denial of cross-examination without waiver . . . would be constitutional error of the first magnitude.'" Dutton v. Evans, 400 U.S. 74, 85 (1970) (quoting Brookhart v. Janis, 384 U.S. 1, 3 (1966)). For an analysis of the distinction between forfeiture and waiver and an argument in favor of increased use of a forfeiture standard in criminal constitutional contexts, see Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 MICH. L. REV. 1214 (1977). Although I agree with Professor Westen that the distinction is important for descriptive purposes, I believe there is little precedent justifying this approach in the constitutional context. See Dutton, 400 U.S. at 85; Brookhart, 384 U.S. at 3. Furthermore, as a normative preference, I oppose using nonintentional tests to strip defendants of their constitutional rights. See infra Part II.B.
54. See Potamitis, 739 F.2d at 788-89 (admitting grand jury testimony of two witnesses, absent at trial due to threats by a defendant); United States v. Thevis, 665 F.2d 616, 627 (5th Cir. Unit B 1982) (admitting transcripts of murdered witness's grand jury testimony); United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) (allowing grand jury testimony to come in when the defendant made threats on the life of a government witness); United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976) (holding that the defendant had waived his confrontation right by threatening a witness, and therefore the witness's grand jury testimony was admissible).
55. See United States v. Gallo, 653 F. Supp. 320, 332 (E.D.N.Y. 1986) (warning defendant that both bail hearing testimony and grand jury testimony will be admissible at trial if defendant wrongfully procures a witness's absence).
56. See United States v. Aguiar, 975 F.2d 45, 46-47 (2d Cir. 1992) (refusing to limit the waiver rule to admitting grand jury testimony, and allowing evidence of conversations with federal agents).
57. See United States v. Williamson, 792 F. Supp. 805, 810 (M.D. Ga. 1992) (implying that a witness's post-arrest statements to agent would have been admissible if the prosecution had shown that defendant waived confrontation rights).
58. See Steele, 684 F.2d at 1199; Thevis, 665 F.2d at 627.
59. See United States v. Rouco, 765 F.2d 983, 994-95 (11th Cir. 1985) (finding statements by one agent to another to be admissible when defendant subsequently murdered the declarant).
60. See United States v. Houlihan, 92 F.3d 1271, 1278 (1st Cir. 1996) (affirming the District Court's ruling that a tape recording of a statement to police was admissible when defendants had witness murdered); United States v. Thai, 29 F.3d 785, 814 (2d Cir. 1994) (admitting statements to police); Black v. Woods, 651 F.2d 528, 531 (8th Cir. 1991) (admitting unsworn statements to police); United States v. Smith, 792 F.2d 441, 442 (4th Cir. 1986) (admitting confession and statements to police); United States v. White, 838 F. Supp. 618, 624 (D.D.C. 1993) (admitting statements to police).
61. See Thevis, 665 F.2d at 627 (admitting transcripts of a murdered witness's grand jury testimony and FBI interviews).
62. See White, 838 F. Supp. at 624 (allowing prosecution to enter police reports into evidence).
63. See Houlihan, 92 F.3d at 1278 (allowing police officer's testimony concerning murdered witness's comments); Thai, 29 F.3d 785 at 814 (admitting testimony of a police officer relaying statements to him by an absent witness); Rouco, 765 F.2d at 994 (allowing a federal agent's testimony relaying a murdered agent's statements).
64. See Houlihan, 92 F.3d at 1278.
65. See, e.g., United States v. Balano, 618 F.2d 624, 630 (10th Cir. 1979) (finding that grand jury testimony of an unavailable witness was admissible against defendant who threatened witness, but not against codefendants, who did not waive their rights).
66. See United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) (using statements admitted under waiver theory to prove witness tampering); Thevis, 665 F.2d at 627 (admitting statements under waiver theory to prove facts asserted as well as additional act of murdering witness). For a discussion of these cases, see United States v. Houlihan, 887 F. Supp. 352, 358 (D. Mass. 1995), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996).
67. 653 F. Supp. 320, 332 (E.D.N.Y. 1986).
68. See Houlihan, 92 F.3d 1271 (1st Cir. 1996).
69. See United States v. Thai, 29 F.3d 785 (2d Cir. 1994); Aguiar, 975 F.2d 45 (2d Cir. 1992); Mitchell v. Hoke, 930 F.2d 1 (2d Cir. 1991); United States v. Potamitis, 739 F.2d 784 (2d Cir. 1984); United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982); see also Bagby v. Kuhlman, 932 F.2d 131 (2d Cir. 1991) (discussing, but not applying, the confrontation waiver rule). For opinions by trial courts in the Second Circuit, see Gallo, 653 F. Supp. 320 (E.D.N.Y. 1986); United States v. Papadakis, 572 F. Supp. 320 (S.D.N.Y. 1983).
70. See United States v. Smith, 792 F.2d 441 (4th Cir. 1986).
71. See Thevis, 665 F.2d 616 (5th Cir. Unit B 1982), aff'g 84 F.R.D. 57 (N.D. Ga. 1979).
72. See United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir. 1991); Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982); see also Rice v. Marshall, 709 F.2d 1100 (6th Cir. 1983) (finding no waiver of confrontation right, but no violation of that right, when admitted hearsay bears indicia of reliability and the defendant threatened the witness into silence); Steele v. Taylor, 697 F.2d 128 (1982) (Jones, J., dissenting from denial of rehearing en banc) (arguing that a valid waiver of confrontation rights requires clear and convincing evidence that the defendant procured the witness's unavailability); United States v. Barlow, 693 F.2d 954 (6th Cir. 1982) (discussing, but not applying, the confrontation waiver rule); Tolbert v. Jago, 607 F.2d 753 (6th Cir. 1979) (dicta) (noting that the confrontation waiver rule provided an alternative theory on which to uphold the trial court); United States v. Mayes, 512 F.2d 637 (6th Cir. 1975) (finding that extensive questioning by the government does not violate the Confrontation Clause when threats from the defendant caused the witness to invoke a privilege).
73. See Olson v. Green, 668 F.2d 421 (8th Cir. 1982); Black v. Woods, 651 F.2d 528 (8th Cir. 1981); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976); see also United States v. Roberts, 844 F.2d 537 (8th Cir. 1988) (discussing, but not applying, the confrontation waiver rule).
74. See United States v. Balano, 618 F.2d 624 (10th Cir. 1979).
75. See United States v. Rouco, 765 F.2d 983 (11th Cir. 1985); United States v. Williamson, 792 F. Supp. 805 (M.D. Ga. 1992).
76. See United States v. White, 838 F. Supp. 618, 621 (D.D.C. 1993).
77. See United States v. McGrath, 39 M.J. 158, 163 (C.M.A. 1994); United States v. Clark, 35 M.J. 98, 105 (C.M.A. 1992); United States v. Barror, 23 M.J. 370 (C.M.A. 1987); see also United States v. Hines, 23 M.J. 125, 131 (C.M.A. 1986) (holding that the defendant's family's refusal to testify did not give rise to a waiver without a showing that the defendant caused them to refuse).
78. See, e.g., State v. Gettings, 769 P.2d 25 (Kan. 1989); State v. Magouirk, 539 So.2d 50 (La. 1989); State v. Peirce, 364 N.W.2d 801 (Minn. 1985); State v. Sheppard, 484 A.2d 1330 (N.J. Super. Ct. Law Div. 1984); People v. Geraci, 649 N.E.2d 817 (N.Y. 1995); Holtzman v. Hellenbrand, 460 N.Y.S.2d 591 (App. Div. 1983); People v. Cotto, 642 N.Y.S.2d 790 (Sup. Ct. 1996); State v. Frambs, 460 N.W.2d 811 (Wis. 1990). This Article discusses federal civilian cases only. Analysis by state courts of the federal constitutional issues tracks that of the federal cases, for state waiver cases are ultimately reviewable in the federal courts in habeas corpus appeals. The state cases may differ in nonconstitutional areas, such as admissibility of statements under state rules of evidence.
79. See United States v. Thai, 29 F.3d 785, 795 (2d Cir. 1994); United States v. Thevis, 665 F.2d 616, 621 (5th Cir. Unit B 1982); United States v. Houlihan, 887 F. Supp. 352, 355 (D. Mass. 1995), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996); White, 838 F. Supp. at 619; United States v. Gallo, 653 F. Supp. 320, 324 (E.D.N.Y. 1986).
80. See Thai, 29 F.3d at 795-98; United States v. Potamitis, 739 F.2d 784, 787 (2d Cir. 1984); United States v. Balano, 618 F.2d 624 (10th Cir. 1979).
81. See Thai, 29 F.3d at 798; United States v. Rouco, 765 F.2d 983, 985 (11th Cir. 1985); Rice v. Marshall, 709 F.2d 1100 (6th Cir. 1983); Olson v. Green, 668 F.2d 421, 422 (8th Cir. 1982); Houlihan, 887 F. Supp. at 355.
82. See Steele v. Taylor, 684 F.2d 1193, 1197 (6th Cir. 1982) (applying the rule when defendant hired assassin to murder his wife).
83. See United States v. Smith, 792 F.2d 441, 442 (4th Cir. 1986).
84. See United States v. Aguiar, 975 F.2d 45, 46 (2d Cir. 1992); Rouco, 765 F.2d at 985 n.1; United States v. Mastrangelo, 693 F.2d 269, 270 (2d Cir. 1982); United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir. 1991); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976); United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996).
85. See Thai, 29 F.3d at 794; United States v. Gallo, 653 F. Supp. 320, 324 (E.D.N.Y. 1986).
86. See Gallo, 653 F. Supp. at 324.
87. See Aguiar, 975 F.2d at 46-47 (applying the rule when defendant was charged with witness tampering after repeatedly threatening a witness).
88. For analysis of splits between circuits, see infra Part I.B.
89. The Supreme Court has denied certiorari in five confrontation waiver cases. See United States v. Thai, 29 F.3d 785 (2d Cir.), cert. denied, 115 S. Ct. 456 (1994); United States v. Thevis, 665 F.2d 616 (5th Cir. Unit B), cert. denied, 459 U.S. 825 (1982); Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); United States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914 (1977). The Supreme Court decided one nineteenth-century case which is a precursor to the current line of cases. See Reynolds v. United States, 98 U.S. 145 (1878); see also infra notes 196-204 and accompanying text (analyzing Reynolds in depth).
90. See cases cited infra notes 79-89. All of the cases cited in this discussion of unavailability involve a confrontation waiver claim. For a review of unavailability requirements in cases outside the waiver context, see 4 WEINSTEIN & BERGER, supra note 38, ¶ 804(a)[01].
91. 448 U.S. 56, 66 (1980); see also Balano, 618 F.2d at 628 n.6 ("Under no circumstances, including coercive acts by a defendant, should cross-examination of an available witness not be constitutionally mandated."). However, in United States v. Inadi, 475 U.S 387, 392-94 (1986), the Supreme Court deemed the unavailability requirement less fundamental to confrontation analysis than Roberts suggested. Because the Supreme Court has yet to decide a contemporary confrontation waiver case, the basis for the unavailability requirement in confrontation waiver cases, or whether such a requirement exists at all, has not been clearly determined. Given the logic of Inadi, the necessity for a finding of declarant unavailability in confrontation waiver cases may ultimately rest more on logical than on constitutional foundations. The Eighth Circuit also grounds the rule in the unavailability requirement of FED. R. EVID. 804(a)(2). See Carlson, 547 F.2d at 1354. All the remaining courts consider Rule 804 to be irrelevant once the prosecution has demonstrated a waiver of the constitutional confrontation right. See infra Part I.B.5. For an analysis of Roberts and Inadi, see Epps, supra note 17, at 34-44.
92. See United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); Thai, 29 F.3d at 814-15; United States v. Rouco, 765 F.2d 983, 985 (11th Cir. 1985); Thevis, 665 F.2d at 627.
93. 4 WEINSTEIN & BERGER, supra note 38, ¶ 804(a)[01], cited with approval in United States v. Thevis, 84 F.R.D. 57 (N.D. Ga. 1979) (holding that the defendant waived confrontation rights because the declarant was dead and thus unavailable), aff'd, 665 F.2d 616 (5th Cir. Unit B 1982).
94. See United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) (finding a declarant to be unavailable when he refused to testify after a grant of immunity and faced contempt); Balano, 618 F.2d at 626 (declaring a witness unavailable after the witness had served six months' imprisonment for contempt); Carlson, 547 F.2d at 1354 (declaring a witness unavailable who refused to testify despite a grant of immunity and a court order); see also FED. R. EVID. 804(a)(2) (deeming a declarant unavailable if he or she persists in refusing to testify despite an order of the court to do so).
95. The Fifth and Eighth Circuits appear to apply the strictest tests. See United States v. Mathis, 559 F.2d 294, 298 (5th Cir. 1977) (ruling that absent a court order to testify, a threatened declarant's refusal to testify is insufficient grounds for a finding of unavailability; and because declarant was available, finding no confrontation waiver); Carlson, 547 F.2d at 1353-54 (finding a declarant unavailable only when he refused to testify, had a grant of use immunity, was under a court order to testify, and was held in contempt, but not clarifying whether it would require all these factors); see also Black v. Woods, 651 F.2d 528, 530 (8th Cir. 1981) (requiring no grant of immunity when declarant possessed no valid Fifth Amendment privilege). The Second, Tenth, and Sixth Circuits may be more lax. In Aguiar, 975 F.2d at 47, the Second Circuit suggested that the court may still find the declarant unavailable without a formal contempt charge, as long as the declarant "faced" contempt charges. In Balano, the Tenth Circuit considered a case in which, in an earlier trial of the same offense resulting in a hung jury, the declarant had refused to testify after receiving a grant of immunity and a contempt charge. When the witness indicated prior to the second trial that he would once again refuse to testify, the Tenth Circuit ruled him unavailable. 618 F.2d at 626. The Sixth Circuit has held that a declarant is unavailable after a grant of immunity, without mentioning any contempt requirement. Rice v. Marshall, 709 F.2d 1100, 1103 (6th Cir. 1983). But in Steele v. Taylor, 684 F.2d 1193, 1197 (6th Cir. 1982), the Sixth Circuit held a declarant unavailable after contempt, with no mention of immunity.
96. See United States v. Williamson, 792 F. Supp. 805, 811 (D. Ga. 1992) (ruling a declarant unavailable in the confrontation waiver context when he asserted a Fifth Amendment privilege not to testify).
97. See Mathis, 559 F.2d at 298 (declaring a witness available when the asserted marital privilege was invalid).
98. See United States v. Smith, 792 F.2d 441, 442 (4th Cir. 1986) (finding declarant unavailable when he absconded); United States v. Potamitis, 739 F.2d 784, 789 (2d Cir. 1984) (ruling two witnesses unavailable when one had "disappeared" and the other had fled to an unknown location in Greece).
99. Potamitis, 739 F.2d at 789 (quoting Ohio v. Roberts, 448 U.S. 56, 74 (1980)); see also Barber v. Page, 390 U.S. 719, 724-25 (1968) ("[A] witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.").
100. Potamitis, 739 F.2d at 789. In the same case, a second witness had fled to an undisclosed location in Greece. Despite the fact that his general location was known, the court declared the witness unavailable because the government made a good faith effort to locate him. The search included a search by United States embassy officials, service of copies of grand jury and trial subpoenas on the missing witness's brothers, and hiring professional process servers licensed in Greece to assist with the search. Id. But, in United States v. Smith, the Court did not expressly apply a "good faith effort" test when the declarant had absconded. 792 F.2d at 442. This appears to be an oversight, and not a declaration that this test, mandated by the Supreme Court in Ohio v. Roberts, 448 U.S. 56, 74 (1980), does not apply in the confrontation waiver context. Indeed, the court did note that the government had subpoenaed the missing witness, suggesting that this constituted sufficient good faith effort. See Smith, 792 F.2d at 442. Given the lack of case law on this subject, it remains unclear whether the requirements for a "good faith effort" in Sixth Amendment waiver cases are identical to those applied in cases in which the government seeks to admit hearsay pursuant to FED. R. EVID. 803-04. The prosecution might argue that the court should require a lesser "good faith" effort from the government in waiver cases, because the defendant took active steps to make it more difficult for the government to obtain the witness's presence. Alternatively, the defense could argue that because the Sixth Amendment remains in force until the court has held that the right has been waived, the court should require the same degree of "good faith effort" required in other Sixth Amendment contexts. These questions remain open for future adjudication.
101. See Tolbert v. Jago, 607 F.2d 753, 755 (6th Cir. 1979) (per curiam) (affirming the use of grand jury testimony when a witness denied remembering anything pertinent, the conviction did not depend on the witness's cross-examination, and the defendant may have threatened the witness).
102. See 4 WEINSTEIN & BERGER, supra note 38, ¶ 804(a)[01].
103. See Steele v. Taylor, 684 F.2d 1193, 1203 (6th Cir. 1982); United States v. Thevis, 665 F.2d 616, 633 n.17 (5th Cir. Unit B 1982); United States v. Williamson, 792 F. Supp. 805, 810 (M.D. Ga. 1992).
104. See Steele, 684 F.2d at 1202.
105. See Potamitis, 739 F.2d at 788.
106. See United States v. Thai, 29 F.3d 785, 814 (2d Cir. 1994); Smith, 792 F.2d at 442; United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982); Olson v. Green, 668 F.2d 421, 429 (8th Cir. 1982); Mayes v. Sowders. 621 F.2d 850, 856 n.4 (6th Cir. 1980).
107. See United States v. Gallo, 653 F. Supp. 320, 332 (E.D.N.Y. 1986); United States v. Papadakis, 572 F. Supp. 1518, 1526 (S.D.N.Y. 1983).
108. See United States v. White, 838 F. Supp. 618, 621 (D.D.C. 1993).
109. See United States v. Houlihan, 92 F.3d 1271, 1281 (1st Cir. 1996); Thai, 29 F.3d at 814; United States v. Rouco, 765 F.2d 983, 987 (2d Cir. 1985); Mastrangelo, 693 F.2d at 272; United States v. Thevis, 665 F.2d 616 (5th Cir. Unit B 1982); White, 838 F. Supp. 618 (D.D.C. 1993).
110. See Houlihan, 92 F.3d at 1278; Thevis, 665 F.2d at 30; White, 838 F. Supp. at 625.
111. See Rouco, 765 F.2d at 995 (holding that the defendant waived his confrontation right by murdering an ATF special agent).
112. See Thai, 29 F.3d at 815 (affirming the admissibility of the crime victim's prior statements against the defendants).
113. See Mastrangelo, 693 F.2d at 271 (finding that the murdered witness was the sole witness to the acts that linked the defendant to the charges against him).
114. See id. at 272 (establishing that if the defendant was involved in the witness's death, his involvement waived his Confrontation Clause objections to the admission of that witness's testimony).
115. See id. at 273 (holding that the planning of a murder which then took place is sufficient involvement to waive the confrontation right).
116. See United States v. Houlihan, 887 F. Supp. 352, 364-65 (D. Mass. 1995) (holding that the defendant waived his confrontation right by ordering a potential witness's death), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996).
117. 693 F.2d at 273-74.
118. See United States v. White, 838 F. Supp. 618, 623 (D.D.C. 1993).
119. Id.
120. See United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) (finding that the defendant used verbal and written threats to procure witness's unavailability); United States v. Potamitis, 739 F.2d 784, 788 (2d Cir. 1984) (finding that the defendant's threats kept a witness from testifying); Black v. Woods, 651 F.2d 528, 531 (8th Cir. 1981) (finding the record "replete with [defendant's] threats and attempts to intimidate [the witness]"); United States v. Balano, 618 F.2d 624, 626 (10th Cir. 1979) (finding that the defendant threatened a witness's life); United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976) (finding that the defendant's threats "assure[d] [the witness's] unavailability").
121. See Aguiar, 975 F.2d at 47 (finding that the defendant threatened to expose a witness's criminal conduct).
122. See id.
123. See Balano, 618 F.2d at 630 (noting that the defendant threatened the witness's associates).
124. See Aguiar, 975 F.2d at 47 (noting the declarant's concern about his family's safety); Black, 651 F.2d at 531 (finding that the declarant feared for her children's safety); United States v. Papadakis, 572 F. Supp. 1518, 1526 (S.D.N.Y. 1983) (finding that the witness feared for his personal safety as well as that of his family).
125. Black, 651 F.2d at 531 (noting that the court found the witness's fear to be reasonable under the circumstances).
126. No cases involving a "trivial" threat have been reported, but one can easily imagine such a scenario. Absent some indication that the statement was a veiled threat, for example, it would be ridiculous for a court to hold that a defendant had waived his confrontation rights by telling a witness, "If you testify, I won't be your friend anymore." No other courts have adopted language similar to that utilized in Black. Thus, the "reasonable fear" doctrine may not extend beyond the Eighth Circuit. Note also that in determining whether the witness's fear of reprisal was reasonable, the Black court considered the defendant's past behavior, and in particular, his record of murdering other prospective witnesses. Id. at 531-32.
127. See Steele v. Taylor, 684 F.2d 1193, 1203 (6th Cir. 1982) (noting, in addition to other conduct, that the defendant paid for the witness's lawyer, and that the lawyer advised the witness to refuse to testify despite being held in contempt); United States v. Williamson, 792 F. Supp. 805, 810 (M.D. Ga. 1992) (noting that paying for a legal defense in return for silence would constitute waiver, but not finding sufficient evidence of such an agreement).
128. See Williamson, 792 F. Supp. at 810 (announcing that the prosecution can show a waiver by demonstrating with clear and convincing evidence that the defendant and the witness's lawyer conspired to keep the witness from testifying).
129. See United States v. Smith, 792 F.2d 441, 442 (4th Cir. 1986); United States v. Potamitis, 739 F.2d 784, 788 (2d Cir. 1984).
130. See United States v. Barlow, 693 F.2d 954, 962 (6th Cir. 1982) (suggesting that only a sham marriage would result in waiver, but admitting a legitimate spouse's grand jury testimony due to "the defendant's role in making the witness unavailable").
131. See United States v. Mayes, 512 F.2d 637, 651 (6th Cir. 1975) (stating that the defendant, through his own counsel, procured witness's absence).
132. 684 F.2d at 1199, 1203 (inferring causation when the declarant lived with, had children with, and was "under the control of one of the defendants; the defendants had procured legal counsel for the witness; the witness's legal counsel advised the witness not to testify; and the defendants had, through frequent objections, indicated a strong desire to prevent the witness from testifying).
133. See Mayes v. Sowders, 621 F.2d 850, 856 n.4 (6th Cir. 1980) (noting that, despite their close relationship, there was no suggestion that the defendant procured the witness's refusal to answer).
134. See United States v. Rouco, 765 F.2d 983, 987 (11th Cir. 1985) (finding that the defendant murdered the declarant shortly before indictment); United States v. Houlihan, 887 F. Supp. 352, 356 (D. Mass. 1995) (noting that the witness's murder occurred two years prior to the indictment), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996).
135. See United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); United States v. Carlson, 547 F.2d 1346, 1352-53 (8th Cir. 1976).
136. See United States v. Mastrangelo, 693 F.2d 269, 271 (2d Cir. 1982) (noting that the witness was murdered on the third day of trial).
137. 887 F. Supp. at 361.
138. Id.
139. United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996).
140. See Olson v. Green, 668 F.2d 421, 429 (8th Cir. 1982) (declining to attribute a codefendant's conduct to the defendant in order to find that the defendant waived his rights); United States v. Thevis, 84 F.R.D. 57, 72 (N.D. Ga. 1979) (finding that when one defendant had no responsibility for a witness's murder, he did not waive his confrontation right), aff'd, 665 F.2d 616 (5th Cir. Unit B 1982).
141. See United States v. Mayes, 512 F.2d 637, 650-51 (6th Cir. 1975) (finding that the defendant, acting through his counsel with whom he likely concurred, procured the witness's refusal to answer).
142. 668 F.2d at 430 In Black v. Woods, the Eighth Circuit went further, suggesting that evidence of past actions may be sufficient, on its own, to satisfy the cause requirement. In Black, the defendant argued that "there was no evidence of an expressed threat addressed to [the witness] by [the defendant] or anyone acting on his behalf." 651 F.2d 528, 532 (8th Cir. 1981). Adopting language from the Minnesota Supreme Court the Eighth Circuit replied that when the witness knew that a defendant had murdered a witness in a past case, the defendant's "demonstrated tendencies provided [the witness] with the most graphic and explicit threat possible if she testified against him." Id. (quoting State v. Black, 291 N.W.2d 208, 214 (Minn. 1980)).This suggests that in the eyes of the Eighth Circuit, past threats to other persons, combined with the witness's knowledge of these acts, are sufficient to form a waiver of the confrontation right.
143. 684 F.2d 1193, 1203 (6th Cir. 1982).
144. 739 F.2d 784, 788 (2d Cir. 1984).
145. 665 F.2d 616, 633 n.17 (5th Cir. Unit B 1982) (finding that to waive a confrontation right, a defendant must cause a witness's unavailability for the purpose of preventing that witness from testifying).
146. Id. at 630.
147. Id. (emphasis added).
148. Id. at 633 n.17 ("[E]ven if the government proved by clear and convincing evidence that the defendant had caused the witness's absence, the hearsay evidence would still not be admissible until the government proved . . . that the absence was for the purpose of preventing the witness from testifying.").
149. The court went on to hold that the defendant had displayed the requisite purpose. He confessed to a government informant that he had killed the prospective witness because the witness intended to testify against him. Id. at 624, 633 n.17.
150. See United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996): [W]hen a person who eventually emerges as a defendant (1) causes a potential witness's unavailability (2) by a wrongful act (3) undertaken with the intention of preventing the potential witness from testifying at a future trial, then the defendant waives his right to object on confrontation grounds to the admission of the unavailable declarant's out-of-court statements at trial.
151. The Second Circuit has clearly and repeatedly adopted a two-part test, with no intent requirement. See, e.g., United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) ("A defendant who procures a witness's absence waives the right of confrontation for all purposes with regard to that witness."); United States v. Potamitis, 739 F.2d 784, 788 (2d Cir. 1984) ("A defendant may waive the right to confront witnesses against him when his own misconduct is
152. See, e.g., United States v. Smith, 792 F.2d 441, 442 (4th Cir. 1986) (upholding trial court, which did not apply an intent requirement).
153. See, e.g., Black v. Woods, 651 F.2d 528, 531 (8th Cir. 1981) (finding a waiver without any discussion of the defendant's intent); United States v. Carlson, 547 F.2d 1346, 1358 (8th Cir. 1976) (stating that a defendant who creates his witness's unavailability cannot complain of losing his right to confront that witness).
154. See, e.g., United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) ("We hold, therefore, that before permitting the admission of grand jury testimony of witnesses who will not appear at trial because of the defendant's alleged coercion, the judge must hold an evidentiary hearing in the absence of the jury and find . . . that the defendant's coercion made the witness unavailable.").
155. See, e.g., United States v. White, 838 F. Supp. 618, 621 (D.D.C. 1993) (stating that "if any defendant was responsible for the absence of [the witness] from the trial in this case, that defendant will be deemed to have waived his confrontation rights and hearsay objections with regard to statements made by [the witness]").
156. The status of the rule in the Eleventh Circuit is unclear. Because Thevis was decided prior to the split of the old Fifth Circuit into the current Fifth and Eleventh Circuits, the Thevis decision, with its intent requirement, is now binding precedent in the Eleventh Circuit. In United States v. Rouco, however, the circuit appeared to ignore this requirement. In the Rouco case, the defendant shot the declarant, an undercover federal ATF agent, in an attempt to avoid arrest. 765 F.2d 983, 986-87 (11th Cir. 1985). There was no indication that the defendant's action was motivated by the desire to prevent the agent from testifying at trial. On appeal, the Eleventh Circuit did not require a showing of specific intent, holding simply that the defendant "waived his right to cross-examine Benitez by killing him." Id. at 995. In United States v. Williamson, however, the District Court for the Middle District of Georgia applied the Thevis test, including the purpose requirement. 792 F. Supp. 805, 810 (M.D. Ga. 1992) (finding that a defendant did not waive his confrontation rights). This suggests that in the eyes of at least some Eleventh Circuit trial courts, the purpose requirement remains in force in the circuit.
157. The Sixth Circuit's rule is similarly unclear. In Steele v. Taylor the Sixth Circuit seemed to adopt a bipartite test requiring only unavailability and causation. 684 F.2d 1193, 1202 (6th Cir. 1982) ("A prior statement given by a witness made unavailable by the wrongful conduct of a party is admissible against the party."). In United States v. Barlow, however, the court suggested that in at least some factual contexts, in which a defendant's action is not clearly illegitimate, the court may require intent. In that case the court held that a defendant had not waived his right to confront an unavailable witness, whom the defendant had married prior to his trial, absent a finding that the marriage was "designed" to make her unavailable for trial, and not for legitimate reasons. 693 F.2d 954, 962 (6th Cir. 1982).
158. 887 F. Supp. 352 (D. Mass 1995), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996).
159. See Id. at 361 n.17 ("[W]here there are mixed motives for a killing, the government may establish waiver by proving . . . that the silencing of a potential witness was one of the motivations which led to the death of the victim.").
160. Id. at 364 (ruling that statements made by the witness were admissible against the hitman if he "was aware of Houlihan's [the defendant's] motive for ordering the hit").
161. Id.
162. Id. at 364-65.
163. Id.
164. See United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982) ("Other courts have divided on the issue. . . . Moreover, the Supreme Court precedents are mixed.").
165. The waiver case of United States v. Balano, 618 F.2d 624 (10th Cir. 1979), was one of the first cases to discuss the burden of proof issue at length. The Balano court rejected a "reasonable doubt" standard as impractical, noting that in many cases the standard would "preclude a finding of waiver." 618 F.2d at 629 ("We recognize that often the only evidence of coercion will be the statement of the coerced witness, as repeated by government agents. Consequently, a reasonable doubt standard for admission might well preclude a finding of waiver, no matter how reprehensible the defendant's conduct."). The court also rejected a prima facie standard as too weak. See id. ("On the other hand, we do not wish to emasculate the Confrontation Clause merely to facilitate government prosecutions. Thus, a showing of coercion is not enough."). Since the Balano decision, no court has adopted either the "prima facie" or "reasonable doubt" standard in waiver cases, suggesting that the Tenth Circuit's pragmatic concerns persuade other courts. See, e.g., United States v. Thevis, 665 F.2d 616, 631 (5th Cir. Unit B 1982) (rejecting the "reasonable doubt" standard in confrontation waiver cases); United States v. White, 838 F. Supp. 618, 623 (D.D.C. 1993) ("This Court is convinced . . . that the government does not bear the burden of proving [the elements of waiver] beyond a reasonable doubt."); Olson v. Green, 528 F. Supp. 27, 31 n.5 (D. Minn. 1980), aff'd, 668 F.2d 421 (8th Cir. 1982) ("The trial court did not need proof beyond a reasonable doubt.").
166. The First, Second, Sixth, and Tenth Circuits, as well as the District Court for the District of Columbia, require only a "preponderance" standard. See, e.g., United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996) (aligning the First Circuit with the majority of circuits that have considered the question, and setting the standard at a preponderance of the evidence); United States v. Thai, 29 F.3d 785, 814 (2d Cir. 1994) (holding that "the government has the burden of proving by a preponderance of the evidence that the defendant was responsible for the witness's absence"); Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982) ("We interpret this standard to mean that the proponent of the hearsay statement has the burden of persuasion of showing procurement by a preponderance . . . ."); Balano, 618 F.2d at 629 (holding that the government need only prove waiver by a preponderance of the evidence); White, 838 F. Supp. at 623 (stating that "the Court is convinced that the appropriate standard for pretrial determinations regarding the waiver of confrontation rights is a preponderance of the evidence").
167. In Mastrangelo, the court observed that Supreme Court precedents relevant to the standard of proof issue are "mixed." None is directly on point, and analogous cases go both ways. See Mastrangelo, 693 F.2d at 273 (comparing United States v. Wade, 388 U.S. 218 (1967) (requiring clear and convincing proof to prove that tainted identification has an independent source), with Lego v. Twomey, 404 U.S. 477 (1972) and United States v. Matlock, 415 U.S. 164 (1974) (applying a "preponderance" standard in cases of government misconduct)). The court concluded that the Supreme Court decisions were not dispositive, leaving the circuit court free to resolve the issue on its own. Id. at 273. The court then adopted the "preponderance" standard, citing two distinct reasons for its decision. First, "a claim of waiver is not one which is either unusually subject to deception or disfavored by the law." Second, the court made the pragmatic judgment that "there is hardly any reason to apply a burden of proof that might encourage behavior which strikes at the heart of the system of justice itself." Id. For cases applying the Mastrangelo "preponderance" standard, see Thai, 29 F.3d at 814; United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992). See also United States v. Papadakis, 572 F. Supp. 1518, 1527 n.17 (S.D.N.Y. 1983) (making findings under a clear and convincing standard, but noting that this standard is more strict than is required in the circuit). The Second Circuit's belief that no Supreme Court precedents are dispositive on this issue may be incorrect. See infra Part II.D.
168. See, e.g., Houlihan, 92 F.3d at 1280 ("Proving the conditions precedent to the applicability of the coconspirator exception is analytically and functionally identical to proving that a defendant's wrongdoing waives his rights under the Confrontation Clause."); Steele, 684 F.2d at 1202-03 (basing the decision on Reynolds v. United States, 98 U.S. 145 (1878), and on analogy to coconspirator cases).
169. See, e.g., Balano, 618 F.2d at 629 (selecting the preponderance standard through a process of elimination without considering or rejecting the clear and convincing standard).
170. See Thevis, 665 F.2d at 630-31 ("When reliability of evidence is a primary concern, the Supreme Court has conditioned admissibility on the 'clear and convincing' standard." (citing United States v. Wade, 388 U.S. 218, 240 (1967))). The Thevis court believed that Supreme Court decisions suppressing evidence to deter police misconduct were less relevant. See id. (contrasting decisions on admissibility under the exclusionary rule, which do not normally relate to the reliability of evidence). The District Court for the District of Massachusetts adopted the "clear and convincing" standard through reasoning almost identical to that of the Thevis court, see United States v. Houlihan, 887 F. Supp. 352, 360 (D. Mass. 1995), but this approach was rejected in favor of the preponderance standard on appeal, see Houlihan, 92 F.3d at 1280.
171. The Fourth and Eighth Circuits affirmed their trial courts' application of a clear and convincing standard without explicitly discussing the issue. See, e.g., United States v. Smith, 792 F.2d 441, 442 (4th Cir. 1986) (upholding the trial court's finding of waiver by clear and convincing evidence, but not expressly ruling on the appropriate standard); Olson v. Green, 668 F.2d 421, 428 (8th Cir. 1982) (stating that the defendant did not waive his confrontation rights, but without discussing the correctness of the standard of proof). The Eleventh Circuit has also failed to state explicitly what standard should be used. See, e.g., United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985). However, because the decisions of the old Fifth Circuit bind the Eleventh circuit, one can assume that the Eleventh Circuit will apply the clear and convincing standard established by Thevis. See Thevis, 665 F.2d at 631 (requiring clear and convincing evidence to support a waiver). This was the approach adopted by the Middle District of Georgia, an Eleventh Circuit trial court, in United States v. Williamson, 792 F. Supp. 805 (M.D. Ga. 1992).
172. See Thevis, 665 F.2d at 633 (ruling that the admission of hearsay pursuant to the confrontation rule violates due process only when the defendant demonstrates that the evidence is "totally lacking in reliability" (citing California v. Green, 399 U.S. 149, 163 n.15 (1970)); see also Houlihan, 92 F.3d at 1282 (finding that statements admitted under a waiver theory were not so unreliable as to violate due process); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) (noting that the admission of facially unreliable statements pursuant to the confrontation waiver rule would raise a due process issue); United States v. Carlson, 547 F.2d 1346, 1360 n.14 (8th Cir. 1976) (stating that in a confrontation waiver case, due process concerns may be implicated when admission of unreliable hearsay affects the fairness of the trial); cf. Manson v. Braithwaite, 432 U.S. 98, 106 (1977) (requiring hearsay to have "sufficient aspects of reliability" to avoid violating due process); Green, 399 U.S. at 189 (Harlan, J., concurring) (stating that the Due Process Clause requires sufficient reliability in hearsay statements to allow rational evaluation by the trier of fact).
173. The district court in United States v. Houlihan conflated the "no reliability" and "mandatory Rule 403" approaches and deemed its rule "the majority view." Houlihan, 887 F. Supp. at 360. Although both approaches involve a dual waiver of both confrontation and hearsay objections, the opinions discussed under the "no reliability" rubric make no mention of mandatory Rule 403 analysis. Thus, this conflation is analytically flawed.
174. 618 F.2d 624, 626 (10th Cir. 1979).
175. None of the "no reliability" cases mentions due process limits to admission of unreliable statements. I assume, however, that these courts would agree that waiver of confrontation rights does not also constitute waiver of due process objections. See, e.g., Balano, 618 F.2d at 626-27 (holding, without mentioning the Due Process Clause, that the defendant waived his right to hearsay objections).
176. See Houlihan, 92 F.3d at 1281 (holding that a special finding of reliability would have been superfluous despite the fact that the dead witness's taped statements were tinged with self-interest).
177. See United States v. Smith, 792 F.2d 441 (4th Cir. 1986). In Smith, the court held that a waiver of confrontation rights constitutes a waiver of statutory hearsay objections as well. Id. at 442. The court cited Thevis for this proposition, but did not adopt the mandatory Rule 403 analysis required by the Thevis decision. See infra notes 167-74 and accompanying text. Thus, Smith more closely resembles the Balano decision than Thevis, for the Fourth Circuit made no attempt to determine whether the statement was reliable or probative.
178. See Houlihan, 887 F. Supp. at 362, 367 (stating that the court is under "no duty" to examine statements for reliability, as such questions are left to the jury).
179. See Thevis, 665 F.2d at 632. The Fifth Circuit justified its decision by arguing that "[b]oth the confrontation clause and the hearsay rule seek to balance the need for relevant, probative evidence against the defendant's interest in testing the accuracy of evidence through personal confrontation and cross-examination." Id. at 633.
180. See id. (attempting to balance the probative and prejudicial nature of hearsay evidence by applying FED. R. EVID. 403). The opinion is not entirely clear on this point. The "necessity" requirement may simply restate one of the elements of Rule 403.
181. Id. at 633 n.17.
182. See FED. R. EVID. 804 (setting out exceptions to the hearsay exclusion when the declarant is unavailable).
183. See FED. R. EVID. 403 (allowing exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence").
184. Thevis, 665 F.2d at 633.
185. Id. at 634 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979)).
186. Id. ("In making this decision [of statement reliability], the trial court has broad discretion which is reviewable only for abuse.").
187. In the Second Circuit's first two confrontation waiver cases, the court made no mention of Rule 403, suggesting that the court was following the Balano-Houlihan approach, under which reliability is legally irrelevant. See United States v. Potamitis, 739 F.2d 784, 788 (2d Cir. 1984) (admitting evidence after finding waiver without mentioning Rule 403, but upholding the trial court's evaluation of the credibility of the testimony); United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982) (ruling, with no mention of Rule 403, that a murdered witness's grand jury testimony is admissible if the defendant is involved in the murder). However, the Second Circuit changed its requirements in United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992), ruling that a defendant who waives Sixth Amendment and Rule 804 rights retains the right to object under Rule 403. This decision differs slightly from the Thevis test in the Fifth Circuit. Under Thevis, the court must analyze statements under Rule 403 sua sponte, but under Aguiar, the defendant must object to invoke Rule 403 scrutiny. Id. at 47 In United States v. Thai, however, the court shifted to the Fifth Circuit mandatory scrutiny approach. 29 F.3d 785 (2d Cir. 1994) (holding that "in order to avoid the admission of 'facially unreliable hearsay,' the district court should undertake a balancing of probative value against prejudicial effect in accordance with [Rule] 403"). The Second Circuit has also departed from the Fifth Circuit in determining the standard of appellate review for Rule 403 determinations. Compare Thevis, 665 F.2d at 634 (abuse of discretion), with Thai, 29 F.3d at 814 (clearly erroneous).
188. See United States v. White, 838 F. Supp. 618, 625 (D.D.C. 1993). White differs slightly from Thevis. Under the Thevis approach, the court is under an affirmative obligation to scrutinize statements for prejudice under Rule 403 sua sponte. In White, the court did not mention this affirmative duty. Instead, it ruled that waiver of rights to object to hearsay, stemming from the Sixth Amendment and Rule 804, does not preclude objection under Rule 403. Thus, it appears that in the District of Columbia, the trial court has no duty to use the Rule 403 balancing test in the confrontation waiver context unless the defendant objects on that ground.
189. 547 F.2d 1346, 1353-55 (8th Cir. 1976) (stating that the defendant had clearly caused the witness to be unavailable, but requiring that the witness's statements conform to Rule 804(b)).
190. See id. at 1353-54 (applying Rule 804(b)(5) to the facts).
191. See FED. R. EVID. 804(b)(5).
192. Id.
193. Id. The rule also requires notice to the opposing party, and it requires that the prosecution offer the statement as evidence of a material fact. Id.
194. Carlson, 547 F.2d at 1353-55 (applying the catch-all exception in Rule 804(b)(5)). In assessing reliability, the court found that the declarant made the statements under oath, subject to penalties for perjury. The statements related facts about an event in which the declarant had personally participated, and there was little possibility of faulty recollection. Finally, the declarant never recanted from his statements and later told authorities that his hearsay statements were true. Id. at 1354. The court also found a "substantial need" for the statement at trial, because the government could not procure evidence about the event from any other source. Id. at 1354-55. Finally, the court ruled that admission of the statement would serve the "interests of justice," because exclusion would be "antithetical to the truth-seeking function of our judicial system." Id. at 1355.
195. See United States v. Rouco, 765 F.2d 983 (11th Cir. 1985) (finding that the defendant waived his confrontation rights and that the statements of the absent witness possessed sufficient reliability pursuant to Rule 804(b)(5)). The Rouco holding indicates that the dual waiver position, adopted by the Fifth Circuit in United States v. Thevis prior to the creation of the Eleventh Circuit, is no longer binding in the circuit. One might argue that Rouco stands for the proposition that Rule 804(b)(5) analysis by the trial court is permissible but not required. However, this interpretation requires one to assume that the Rouco court knew that its Rule 804(b)(5) analysis was unnecessary, but chose to reach the issue nevertheless. Such an assumption seems to be a stretch.
196. The Eight Circuit has decided two additional confrontation waiver cases since the Carlson decision. Both cases were habeas corpus appeals of state court decisions, so no questions of reliability arose under the Federal Rules of Evidence. Thus, the court did not review the validity of the Carlson approach. See Olson v. Green, 668 F.2d 421 (8th Cir. 1982) (reversing a state court finding of waiver, but finding the error to be harmless); Black v. Woods, 651 F.2d 528, 531-32 (8th Cir. 1981) (denying a writ of habeas corpus and finding that the defendant had waived his right of confrontation by intimidating a witness into refusing to testify).
197. See United States v. Mastrangelo, 693 F.2d 269, 273 (2d. Cir. 1982); see also United States v. Thai, 29 F.3d 785, 814 (2d Cir. 1994) (asserting that a district court must hold a hearing at which the state must prove "by a preponderance of the evidence, that the defendant was responsible for the witness's absence").
198. See Mastrangelo, 693 F.2d at 273.
199. See id. (holding that the hearsay evidence in question would be admissible at the evidentiary hearing).
200. In the Eighth Circuit, unlike the Second, the trial court making the waiver determination cannot consider, as evidence of the existence of waiver, the statement the government seeks to admit. See Olson, 668 F.2d at 429 n.15 ("A court, however, may not rely on the evidence, the admissibility of which is itself in issue to resolve the question of waiver.").
201. See United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) ("We hold, therefore, that before permitting the admission of grand jury testimony of witnesses who will not appear at trial because of the defendant's alleged coercion, the judge must hold an evidentiary hearing in the absence of the jury and find . . . that the defendant's coercion made the witness unavailable.").
202. See United States v. White, 838 F. Supp. 618, 621 (D.D.C. 1993) (asserting that in the evidentiary proceeding, "the government was required to identify specifically those statements it intended to introduce at trial").
203. See United States v. Houlihan, 92 F.3d. 1271, 1281 n.5 (1st Cir. 1996) (finding that when the district court heard arguments of counsel and 37 days of trial testimony before deciding that the statements could be utilized, the court did not outstrip the bounds of its discretion in declining to convene a special mid-trial evidentiary hearing); United States v. Thevis, 84 F.R.D. 57, 61 (N.D. Ga. 1979) ("Prior to the tender of the [hearsay] statements under Rule 804(b)(5), the government presented its evidence . . . in the presence of the jury."), aff'd, 665 F.2d 616, 627-33 (5th Cir. Unit B 1982).
204. See United States v. Houlihan, 887 F. Supp. 352, 356 (D. Mass. 1995), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996).
205. See id. at 357.
206. In Part II infra, I do not recommend a preferred procedure for federal district courts. Both approaches are constitutionally sufficient, and there is no need for national procedural uniformity. The First and Fifth Circuit approach is more efficient, because the court bases its waiver determination on information solicited at trial. The government need only present this information once, instead of both at trial and an evidentiary hearing. However, this approach has serious drawbacks. It interferes with trial strategy because neither the government nor the defendant knows whether the potentially decisive hearsay statement will be admitted until late in the trial. It may also prevent the government from presenting its evidence in the order it desires. The Second Circuit approach avoids these problems.
207. See Taylor v. United States, 414 U.S. 17 (1973) (holding that the right to be present at trial is waived by voluntary absence); Illinois v. Allen, 397 U.S. 337, 342-43 (1970) (finding that a defendant who behaves disruptively at trial waives the right to be present at trial); Boykin v. Alabama, 395 U.S. 238, 243 & n.5 (1969) (asserting that by pleading guilty, a defendant waives the right of confrontation, but finding no voluntary waiver on the facts of the case); McCarthy v. United States, 395 U.S. 459, 466 (1969) (holding that a defendant waives the right of confrontation by pleading guilty); Barber v. Page, 390 U.S. 719, 725 (1968) (concluding that the defendant's failure to cross-examine a witness at a preliminary hearing did not constitute a waiver of confrontation rights because he did not know at the time that the witness would be absent from the trial, and therefore could not have intentionally abandoned a known right); Brookhart v. Janis, 324 U.S. 1, 4 (1966) (holding that a defendant way waive the right of confrontation, but refusing to find waiver on the facts of the case); Reynolds v. United States, 98 U.S. 145 (1878) (stating that a defendant who conceals a witness waives the right to confront that witness). See generally Johnson v. Zerbst, 304 U.S. 458 464 (1938) ("Waiver is ordinarily an intentional relinquishment of a known right or privilege."); Snyder v. Massachusetts, 291 U.S. 97, 106 (1934) (noting that a defendant may waive the right to be present at trial by consent or misconduct); see also Diaz v. United States, 223 U.S. 442, 450-455 (1911) (construing Philippine territorial criminal procedure rules; ruling that the defendant waives the right to be present at trial by voluntary absence; and noting that such rights are analogous to those provided by the United States Constitution).
208. Reynolds, 98 U.S. at 158-60 ("[I]f a witness is absent by [the defendant's] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away."). Reynolds is better known for its seminal interpretation of the Free Exercise Clause of the First Amendment. See Jeremy M. Miller, A Critique of the Reynolds Decision, 11 W. ST. U. L. REV. 165, 184-96 (1984); Keith Jaasma, Note, The Religious Freedom Restoration Act: Responding to Smith; Reconsidering Reynolds, 16 WHITTIER L. REV. 211, 248-68 (1995).
209. Reynolds, 98 U.S. at 158-60 ("[I]f a witness is absent by [the defendant's] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away."). Reynolds is better known for its seminal interpretation of the Free Exercise Clause of the First Amendment. See Jeremy M. Miller, A Critique of the Reynolds Decision, 11 W. ST. U. L. REV. 165, 184-96 (1984); Keith Jaasma, Note, The Religious Freedom Restoration Act: Responding to Smith; Reconsidering Reynolds, 16 WHITTIER L. REV. 211, 248-68 (1995).
210. United States v. Reynolds, 1 Utah 319, 320 (1876), aff'd, 98 U.S. 145 (1878).
211. Id. at 322.
212. Id. (holding that a defendant who aids in the concealment of a witness has no right to complain if the court allows the government to introduce the next best evidence).
213. See Reynolds, 98 U.S. at 151-52 (considering the defendant's argument that the government had made an insufficient attempt to procure the witness's presence at trial).
214. Id. at 158 (finding that the defendant waived his right of confrontation by concealing the witness).
215. See infra Part II.B. Later cases have not addressed the basic validity of the Reynolds holding, but have altered the standards that a court must apply to determine whether a waiver has occurred.
216. In the century after 1878, the Reynolds doctrine virtually disappeared from the federal courts. Prior to 1976 only one lower federal court cited the Reynolds holding in a reported decision, and that was in a Fourth Circuit dissent in 1925. See Grove v. United States, 3 F.2d 965, 969 (4th Cir. 1925) (Waddill, J., dissenting). The doctrine fell into desuetude because it was limited to admission of prior cross-examined testimony. It became legally irrelevant a few years later when the Supreme Court ruled that admission of prior testimony does not violate the Confrontation Clause, even absent a waiver of that right. See Mattox v. United States, 156 U.S. 237 (1895). However, the Supreme Court cited the Reynolds case and its holding with approval in 1895, 1900, and 1912. See Diaz v. United States, 223 U.S. 442, 452 (1912) (citing Reynolds in support of the proposition that a defendant may waive the right to object to admission of extrajudicial statements); Motes v. United States, 178 U.S. 458, 471 (1900) (stating that the admission of uncrossed depositions violates the Confrontation Clause unless the witness was "absent from the trial by the suggestion, procurement, or act of the accused"); Mattox, 156 U.S. at 242 (holding that prior testimony of a dead witness is admissible, and citing Reynolds with approval). The Supreme Court tacitly approved the Reynolds doctrine in Snyder v. Massachusetts, in which Justice Cardozo, in dicta, and without citing Reynolds, noted that the "privilege" of the defendant to be present at trial "may be lost by consent or at times even by misconduct." 291 U.S. 97, 106 (1934).
217. Reynolds does not provide a complete constitutional justification for the current rule because the standards for waiver of a constitutional right have changed since 1878. See infra Part II.B. Furthermore, Reynolds involved admission of prior cross-examined testimony from a trial involving the same parties and the same issue. See Reynolds, 98 U.S. at 159-61. Modern cases, in contrast, involve statements never subjected to cross-examination. See supra Part I.A.
218. Some legal philosophers might question the validity of interpreting the scope of constitutional rights in light of instrumental public policy. See generally RONALD DWORKIN, LAW'S EMPIRE (1986); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977). However, courts have long recognized that a pragmatic, instrumental approach is valid when interpreting the Sixth Amendment. As the Supreme Court declared in Mattox, "general rules of law of this kind, however beneficent in their operation and valuable to the accused, must give way to considerations of public policy and the necessities of the case." Mattox, 156 U.S. at 243 (ruling that use of prior testimony at trial does not violate the right to confrontation). The need to interpret the Confrontation Clause in light of policy stems, in part, from a lack of knowledge about the intentions of the drafters of the Bill of Rights. As Justice Harlan has noted, "the Confrontation Clause comes to us on faded parchment. History seems to give us very little insight into [its] intended scope." California v. Green, 399 U.S. 149, 173-174 (1970).
219. Some legal philosophers might question the validity of interpreting the scope of constitutional rights in light of instrumental public policy. See generally RONALD DWORKIN, LAW'S EMPIRE (1986); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977). However, courts have long recognized that a pragmatic, instrumental approach is valid when interpreting the Sixth Amendment. As the Supreme Court declared in Mattox, "general rules of law of this kind, however beneficent in their operation and valuable to the accused, must give way to considerations of public policy and the necessities of the case." Mattox, 156 U.S. at 243 (ruling that use of prior testimony at trial does not violate the right to confrontation). The need to interpret the Confrontation Clause in light of policy stems, in part, from a lack of knowledge about the intentions of the drafters of the Bill of Rights. As Justice Harlan has noted, "the Confrontation Clause comes to us on faded parchment. History seems to give us very little insight into [its] intended scope." California v. Green, 399 U.S. 149, 173-174 (1970).
220. See Sam H. Verhovek, Gang Intimidation Takes Rising Toll of Court Cases, N. Y. TIMES, Oct. 7, 1994, at Al. An upcoming Department of Justice study on the subject of witness intimidation should remedy the lack of national statistics.
221. See Paul Duggan, Life Sentence Set in Witness Slaying, WASH. POST, Nov. 4, 1994, at B5.
222. See Ruben Castaneda, Life Term Sought for Killers of Witness Who Broke Silence, WASH. POST, Oct. 30, 1994, at D1.
223. See Verhovek, supra note 206, at A1.
224. See id.
225. Pub. L. No. 103-322, 108 Stat. 1975, 2148 (authorizing capital punishment for retaliatory killings of witnesses, victims, and informants). For analysis of the statute and its application, see Elizabeth A. Allen & Teresa Klingensmith, Obstruction of Justice, 32 AM. CRIM. L. REV. 525, 525-538 (1995); Teresa Anne Pesce, Defining Witness Tampering Under 18 U.S.C. Section 1512, 86 COLUM. L. REV. 1417, 1419-1421 (1986).
226. Pub. L. No. 103-322, 108 Stat. 1975, 2148 (authorizing capital punishment for retaliatory killings of witnesses, victims, and informants). For analysis of the statute and its application, see Elizabeth A. Allen & Teresa Klingensmith, Obstruction of Justice, 32 AM. CRIM. L. REV. 525, 525-538 (1995); Teresa Anne Pesce, Defining Witness Tampering Under 18 U.S.C. Section 1512, 86 COLUM. L. REV. 1417, 1419-1421 (1986).
227. See FRANKLIN ZIMRING & GORDON HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 50-62 (1973); Johs Andenaes, General Prevention: Illusion or Reality?, 43 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 176, 182-86 (1952); Louis Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 YALE L.J. 315, 329-34 (1984); Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232 (1985).
228. See FRANKLIN ZIMRING & GORDON HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 50-62 (1973); Johs Andenaes, General Prevention: Illusion or Reality?, 43 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 176, 182-86 (1952); Louis Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 YALE L.J. 315, 329-34 (1984); Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232 (1985).
229. See FRANKLIN ZIMRING & GORDON HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 50-62 (1973); Johs Andenaes, General Prevention: Illusion or Reality?, 43 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 176, 182-86 (1952); Louis Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 YALE L.J. 315, 329-34 (1984); Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232 (1985).
230. See FRANKLIN ZIMRING & GORDON HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 50-62 (1973); Johs Andenaes, General Prevention: Illusion or Reality?, 43 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 176, 182-86 (1952); Louis Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 YALE L.J. 315, 329-34 (1984); Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232 (1985).
231. The rule cannot have a deterrent effect if the defendant does not know about the rule. For more on this point, see infra Part II.B. In such a case, application of the rule has remedial effects on the case at bar, and a possible deterrent effect on future cases of witness tampering, but it will not deter the defendant. If the defendant is aware of the rule, then the strength of the potential deterrent effect depends on the defendant's assessment of the extent of the witness's cooperation with the government. If the defendant believes that the witness has given the government most of the valuable information he or she possesses, then the rule provides sufficient deterrence. Killing the witness no longer serves any purpose. If, however, the defendant believes that the witness has not yet told the government everything he or she knows, then the rule provides insufficient deterrence. The defendant may still gain an advantage by killing or intimidating the witness.
232. Reynolds v. United States, 98 U.S. 145, 159 (1878).
233. See infra Part IV.
234. See infra Part II.B.
235. See infra Part II.C.
236. See infra Part II.D.
237. See infra Part III.
238. 291 U.S. 97, 106 (1934).
239. 304 U.S. 458 (1938). For the application of Zerbst to right to counsel cases, see William T. Pizzi, Waiver of Rights in the Interrogation Room: The Court's Dilemma, 23 CONN. L. REV. 229 (1991). For an interesting analysis of the ramifications of the case for habeas corpus doctrine, written shortly after the case was decided, see Comment, 24 CORNELL L.Q. 270 (1938).
240. 304 U.S. 458 (1938). For the application of Zerbst to right to counsel cases, see William T. Pizzi, Waiver of Rights in the Interrogation Room: The Court's Dilemma, 23 CONN. L. REV. 229 (1991). For an interesting analysis of the ramifications of the case for habeas corpus doctrine, written shortly after the case was decided, see Comment, 24 CORNELL L.Q. 270 (1938).
241. Zerbst, 304 U.S. at 459-62.
242. Id. at 459; see also U.S. CONST, amend. VI. ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.").
243. Zerbst, 304 U.S. at 464, 468.
244. Id. at 469.
245. Id. at 464.
246. Id. at 469.
247. Id. at 464 (citing Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393 (1937), and Hodges v. Easton, 106 U.S. 408, 412 (1882)).
248. See id. at 465 (declaring that principles "must be construed and applied so as to preserve - not destroy - constitutional safeguards of human life and liberty").
249. 380 U.S. 400, 403 (1965) (finding that the right of confrontation is fundamental to a fair trial). For an analysis of Pointer, see Epps, supra note 17, at 22-26.
250. 384 U.S. 1, 4 (1966) (holding that a valid waiver requires "an intentional relinquishment . . . of a known right or privilege").
251. But cf. Diaz v. United States, 223 U.S. 442 (1912) (finding that the statutory right to be present at trial and the common law right to object to hearsay are analogous to Sixth Amendment rights, but not directly addressing waiver of confrontation rights).
252. Brookhart, 384 U.S. at 2.
253. Id. at 3.
254. Id. at 6-8 (holding that an attorney's agreement to a prima facie case does not amount to a waiver of the defendant's right to confrontation).
255. Id. at 4 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 469 (1938)).
256. Id.
257. Id.
258. Id. at 7.
259. See id. The Court's discussion of standards to justify a finding of waiver of confrontation rights presumes that waiver of a constitutional right is permissible.
260. Compare Brookhart, 384 U.S. at 4 (holding that an effective waiver requires clearly finding "an intentional relinquishment or abandonment of a known right or privilege"), with Reynolds v. United States, 98 U.S. at 158 (finding that confrontation is a privilege granted by the Constitution, but that a defendant voluntarily keeping a witness away cannot insist on the privilege).
261. See Brookhart, 384 U.S. at 4.
262. See Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (quoting Zerbst with approval); McCarthy v. United States, 394 U.S. 459, 466 (1969); Barber v. Page, 390 U.S. 719, 725 (1968). For an analysis of Barber v. Page, see Epps, supra note 17, at 26-28.
263. Although the majority of courts applying the confrontation waiver rule recognize that Zerbst and Brookhart set the appropriate standard, two courts, the Eighth and Second Circuits, appear to reject this conclusion. In United States v. Carlson, the Eighth Circuit cites the Zerbst test with approval, but then suggests that in addition to consensual Zerbst waivers, a defendant can waive rights "by misconduct." 547 F.2d 1346, 1358 (8th Cir. 1976). In support of this claim, the Eighth Circuit relied on two pre-Zerbst cases, Snyder v. Massachusetts, 291 U.S. 97, 106 (1934), and Diaz v. United States, 223 U.S. 444, 455 (1912), as well as a pre-Brookhart and pre-Barber case, Douglas v. Alabama, 380 U.S. 415, 419 (1965). See Carlson, 547 F.2d at 1358. These cases are not sufficient to create an exception to Zerbst, Brookhart, and Barber, for they preceded and were substantially modified by the later decisions. The Eighth Circuit took an important additional step by also citing two post-Barber cases, Illinois v. Allen, 397 U.S. 337 (1970) (holding that a defendant waives the right to be present at trial by contumacious behavior), and Taylor v. United States, 414 U.S. 17 (1973) (holding that a defendant waives the right to be present by voluntary absence). See Carlson, 547 F.2d at 1358. The Carlson court then applied a waiver test that ignored the Zerbst elements of intent, knowledge, intelligence, and competence. See id. at 1359-60. Although the court made no explicit statement to this effect, the structure and logic of the opinion suggests that the court believed either that Allen and Taylor create a "waiver by misconduct" exception to Zerbst, pursuant to which courts need not make any findings about intent, knowledge, competence, or intelligence; or that Allen and Taylor restrict the scope of Zerbst and its progeny, giving new life to the imputed waiver theory of Reynolds and Snyder. See id. at 1358-60. The Second Circuit adopted a similar approach in United States v. Mastrangelo, arguing that a defendant may waive the right by misconduct without examination of intent, knowledge, competence, or intelligence. 693 F.2d 269, 272 (2d Cir. 1982). I believe that the Carlson and Mastrangelo reading of precedent is untenable. The two circuit courts are correct in asserting that in Allen and Taylor the Supreme Court applied a "voluntariness" test as opposed to the Zerbst test. See Mastrangelo, 693 F.2d at 272; Carlson, 457 F.2d at 1358-59. However, both cases involve waiver of the right to be present at trial, and not the right to confrontation. As Justice Cardozo noted in Snyder, the right to be present and the right to confrontation are distinct. Snyder, 291 U.S. at 107 ("Confusion will result . . . if the privilege of presence be identified with the privilege of confrontation."). There is no obvious analytic reason why adoption of a more lenient waiver standard in right to presence cases necessitates or justifies the adoption of that lesser standard in right to confrontation cases. Analysis of the differences between the two rights suggests that the right to confrontation deserves more significant waiver protection than the right to presence. The right to presence is nowhere enumerated in the Constitution, whereas the Sixth Amendment expressly provides the defendant with the right to confront accusers. An express right arguably deserves more substantial protection than a right derived through inference or interpretation alone. This is particularly the case when the constitutional source and validity of the right to presence remain questionable. The courts disagree as to the origin of the right to be present at trial. In Allen the Court ruled that the right is grounded in the Sixth Amendment. See Allen, 397 U.S. at 338 ("One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial."). The Court's sole authority for this proposition, Lewis v. United States, 146 U.S. 370 (1892), however, stands for the opposite conclusion. The Lewis Court ruled that the right to presence was derived from the common law, and might be altered by statute or local court rule. Id. at 376-77. The Snyder Court found that the right to presence stemmed in part from the common law and in part from the Due Process Clause of the Fourteenth Amendment. Snyder, 291 U.S. at 107-08. Perhaps with these problems in mind, the Court in Taylor did not identify any specific constitutional text implicated by waiver of the right to presence. See Taylor, 414 U.S. at 17. Instead, the Taylor Court found that the Federal Rules of Criminal Procedure guaranteed this right. Id. at 18. Indeed, the Court did not state whether any such constitutional right exists at all. Id. The true source of the right to presence, therefore, remains questionable. If the right has no constitutional basis, or, as Lewis and Snyder suggest, does not
264. The Fifth, Tenth, Fourth, and Eleventh Circuits have acknowledged that Zerbst and Brookhart are relevant to determining the appropriate test. See United States v. Smith 792 F.2d 441, 442 (4th Cir. 1986); United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985); United States v. Thevis, 665 F.2d 616, 630 (5th Cir. Unit B 1982); United States v. Balano, 618 F.2d 624, 628-29 (10th Cir. 1979). In Thevis, the Fifth Circuit acknowledged that Zerbst is controlling in the confrontation waiver context, and it made a serious effort to craft a test that complies with that standard: [A] defendant who causes a witness to be unavailable for trial for the purpose of preventing that witness from testifying also waives his right to confrontation under the Zerbst standard. A defendant who undertakes this conduct realizes that the witness is no longer available and cannot be cross-examined. Hence in such a situation the defendant has intelligently and knowingly waived his confrontation rights. Thevis, 665 F.2d at 630. Although the Tenth Circuit cited Brookhart with approval in Balano, it ignored Brookhart's adoption of the strict Zerbst test for determining whether a defendant has in fact waived his right to confrontation. See Balano, 618 F.2d at 628-29. Instead, the court simply ruled that "under the common law principle that one should not profit by his own wrong, [a defendant's] coercion [that makes] the witness unavailable can constitute voluntary waiver of the right of confrontation." Id. at 629. The court cited no cases in support of its "common law principle." Nor did the court make any attempt to demonstrate why a supposed common law principle, even if it does in fact exist, should operate in derogation of a recognized
265. The failure of the lower courts to apply the Zerbst test is not surprising, for the high court has had equal trouble. After reviewing three Supreme Court waiver cases from the 1969 Term, one commentator concluded that "the earlier search for reasoned and consistent principles of waiver is now put to full flight," with the strict waiver definition of Zerbst given only "a kind of token obeisance which serves only to rob its words of whatever cognitive, as opposed to emotive, significance they possess." Michael Tigar, Waiver of Constitutional Rights: Disquiet in the Citadel, 84 HARV. L. REV. 1, 9 (1970). The failure to follow the Zerbst standard carefully in the confrontation context is one of many examples in which the courts declare that rights are fundamental, yet make it easy for the state to strip defendants of those rights. For analogous problems in Fifth Amendment law, see Charles Ogle tree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1839-42 (1987) ("[A]ccording to the Burger Court, the fundamental Miranda assumption is precisely that the Court is constitutionally at liberty to promulgate and then alter or repeal subconstitutional or constitutional common law rules like the Miranda warnings requirement."); Thomas S. Schrock et al., Interrogational Rights: Reflections on Miranda v. Arizona, 52 S. CAL. L. REV. 1, 56-59 (1978) (noting that Supreme Court precedent has severely limited occasions when the Miranda exclusionary rule applies); Daniel W. Sasaki, Note, Guarding the Guardians: Police Trickery and Confessions, 40 STAN. L. REV. 1593 (1988).
266. The failure of the lower courts to apply the Zerbst test is not surprising, for the high court has had equal trouble. After reviewing three Supreme Court waiver cases from the 1969 Term, one commentator concluded that "the earlier search for reasoned and consistent principles of waiver is now put to full flight," with the strict waiver definition of Zerbst given only "a kind of token obeisance which serves only to rob its words of whatever cognitive, as opposed to emotive, significance they possess." Michael Tigar, Waiver of Constitutional Rights: Disquiet in the Citadel, 84 HARV. L. REV. 1, 9 (1970). The failure to follow the Zerbst standard carefully in the confrontation context is one of many examples in which the courts declare that rights are fundamental, yet make it easy for the state to strip defendants of those rights. For analogous problems in Fifth Amendment law, see Charles Ogle tree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1839-42 (1987) ("[A]ccording to the Burger Court, the fundamental Miranda assumption is precisely that the Court is constitutionally at liberty to promulgate and then alter or repeal subconstitutional or constitutional common law rules like the Miranda warnings requirement."); Thomas S. Schrock et al., Interrogational Rights: Reflections on Miranda v. Arizona, 52 S. CAL. L. REV. 1, 56-59 (1978) (noting that Supreme Court precedent has severely limited occasions when the Miranda exclusionary rule applies); Daniel W. Sasaki, Note, Guarding the Guardians: Police Trickery and Confessions, 40 STAN. L. REV. 1593 (1988).
267. The failure of the lower courts to apply the Zerbst test is not surprising, for the high court has had equal trouble. After reviewing three Supreme Court waiver cases from the 1969 Term, one commentator concluded that "the earlier search for reasoned and consistent principles of waiver is now put to full flight," with the strict waiver definition of Zerbst given only "a kind of token obeisance which serves only to rob its words of whatever cognitive, as opposed to emotive, significance they possess." Michael Tigar, Waiver of Constitutional Rights: Disquiet in the Citadel, 84 HARV. L. REV. 1, 9 (1970). The failure to follow the Zerbst standard carefully in the confrontation context is one of many examples in which the courts declare that rights are fundamental, yet make it easy for the state to strip defendants of those rights. For analogous problems in Fifth Amendment law, see Charles Ogle tree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1839-42 (1987) ("[A]ccording to the Burger Court, the fundamental Miranda assumption is precisely that the Court is constitutionally at liberty to promulgate and then alter or repeal subconstitutional or constitutional common law rules like the Miranda warnings requirement."); Thomas S. Schrock et al., Interrogational Rights: Reflections on Miranda v. Arizona, 52 S. CAL. L. REV. 1, 56-59 (1978) (noting that Supreme Court precedent has severely limited occasions when the Miranda exclusionary rule applies); Daniel W. Sasaki, Note, Guarding the Guardians: Police Trickery and Confessions, 40 STAN. L. REV. 1593 (1988).
268. The failure of the lower courts to apply the Zerbst test is not surprising, for the high court has had equal trouble. After reviewing three Supreme Court waiver cases from the 1969 Term, one commentator concluded that "the earlier search for reasoned and consistent principles of waiver is now put to full flight," with the strict waiver definition of Zerbst given only "a kind of token obeisance which serves only to rob its words of whatever cognitive, as opposed to emotive, significance they possess." Michael Tigar, Waiver of Constitutional Rights: Disquiet in the Citadel, 84 HARV. L. REV. 1, 9 (1970). The failure to follow the Zerbst standard carefully in the confrontation context is one of many examples in which the courts declare that rights are fundamental, yet make it easy for the state to strip defendants of those rights. For analogous problems in Fifth Amendment law, see Charles Ogle tree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1839-42 (1987) ("[A]ccording to the Burger Court, the fundamental Miranda assumption is precisely that the Court is constitutionally at liberty to promulgate and then alter or repeal subconstitutional or constitutional common law rules like the Miranda warnings requirement."); Thomas S. Schrock et al., Interrogational Rights: Reflections on Miranda v. Arizona, 52 S. CAL. L. REV. 1, 56-59 (1978) (noting that Supreme Court precedent has severely limited occasions when the Miranda exclusionary rule applies); Daniel W. Sasaki, Note, Guarding the Guardians: Police Trickery and Confessions, 40 STAN. L. REV. 1593 (1988).
269. See supra Part I.B.1-2 (discussing the two-part majority test for applying the confrontation waiver rule).
270. See supra Part I.B.3 (comparing the two-part majority test to the Thevis court's additional requirement, pursuant to Zerbst, of an intent or purpose element).
271. See, e.g., United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982) ("A defendant may waive the right to confront witnesses against him when his own misconduct is responsible for a witness's unavailability at trial.").
272. See supra Part I.B.3 (noting that the First and Fifth Circuits require an additional finding of intent in the confrontation waiver context).
273. See United States v. Thevis, 665 F.2d 616, 634 (5th Cir. Unit B 1982) (finding that the defendant's motives for killing a witness were relevant to the issue of waiver, because they tend to prove intent to tamper with a witness).
274. See id.
275. See id. at 630 ("We conclude that a defendant who causes a witness to be unavailable for trial for the purpose of preventing that witness from testifying also waives his right to confrontation under the Zerbst standard. . . . [I]n such a situation the defendant has intelligently and knowingly waived his confrontation rights.").
276. The Thevis court did not explain the motive behind its "simplification," nor did it explain why such a test satisfies Zerbst. See id. at 630 (requiring "purpose" under the Zerbst test, but failing to cite any authority supporting this interpretation). Nevertheless, one can easily discern or reconstruct the Fifth Circuit's rationale. If the defendant acts with the purpose of preventing a witness from testifying, one can infer an intention not to confront that witness at trial. The defendant's belief that procuring a witness's absence might prevent information from being presented in court indicates that the defendant possesses at least rudimentary knowledge of the right to confrontation. Such a belief demonstrates awareness that if a witness is dead, the Sixth Amendment and the hearsay rules would probably prevent use of extrajudicial statements at trial. Moreover, purposeful acts suggest that the defendant has considered the possible ramifications of forgoing confrontation and made an intelligent decision, based on self-interest, to proceed. Unfortunately, one can easily construct a scenario in which a defendant's conduct satisfies the purpose test but not the Zerbst test. A person could, for example, kill a witness to prevent testimony even while assuming that no confrontation rights exist at all. Such a killing could be motivated by a belief that a government witness reading the statement of an unavailable declarant is less powerful and persuasive than a live, testifying witness. In short, Thevis provides an inexact approximation of the Zerbst test.
277. Indeed, the Fifth Circuit never explained or justified this deviation from the Zerbst test. See id. at 630.
278. See Zerbst, 304 U.S. at 464, 469 (holding that a valid waiver of confrontation requires an "intentional relinquishment . . . of a known right or privilege . . . competently and intelligently" made).
279. See, e.g., id. at 458.
280. See, e.g., Snyder v. Massachusetts, 291 U.S. 97, 106 (1934) (citing Diaz v. United States, 232 U.S. 442, 452 (1912) (finding that a defendant's Sixth Amendment right of confrontation "may be lost by consent or at times even by misconduct")).
281. See Zerbst, 304 U.S. at 464 ("A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.").
282. See id. (setting strict standards to predicate any finding that a defendant has waived the constitutional confrontation right).
283. See id. at 464, 469.
284. Analysis of the confrontation waiver determinations recently upheld by federal appellate courts reveals the importance of applying the strict Zerbst standard. In many of these cases, courts have stripped defendants of their Sixth Amendment right to confrontation in a very casual fashion. See, e.g., United States v. Rouco, 765 F.2d 983 (11th Cir. 1985); Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982). In Rouco an ATF agent named Benitez, gun drawn, attempted to arrest the defendant. The defendant dove for cover, and in the ensuing gun battle, killed Benitez prior to surrendering. Rouco, 765 F.2d at 987. At trial, the government put another ATF agent on the stand, who repeated statements about the defendant that Benitez had made prior to his death. Id. at 993-94. On appeal the Eleventh Circuit, citing Zerbst, upheld admission of the statement, ruling that "Rouco waived his right to cross-examine Benitez by killing him." Id. at 995. Although Rouco's conduct was criminal, it seems reprehensible to deny a defendant constitutional protections inherent to our conception of a fair and just trial on the theory that resisting arrest constitutes a waiver of those protections. In Steele v. Taylor, a witness, who lived with and had twice exchanged common law marriage vows with one of three codefendants, refused to testify on the advice of her counsel, on the ground of marital privilege. Steele, 684 F.2d at 1198; id. at 1208 (Taylor, J., dissenting). There was no clear evidence that any defendant threatened the witness or asked her not to testify. Id. at 1199, 1203. Indeed, the defense subpoenaed the witness in an attempt to force her to testify. Id. at 1203. Nevertheless, the trial court ruled that "the witness was under the control of the defendants who had procured her refusal to testify," and that the defendants had therefore waived their rights to confront her at trial. Id. at 1199. Pursuant to that ruling, the court admitted into evidence an extrajudicial statement that the witness had since repudiated. Id. at 1198. On appeal, the Sixth Circuit agreed that the defendants had waived their rights. Id. at 1203-04. The evidentiary basis for this conclusion consisted of three items: (1) counsel for the defendants had objected to admission of her testimony; (2) counsel for the witness had been employed on the witness's behalf by one of the defendants (not unusual, as the couple lived together and considered themselves married); and (3) there was "evidence supporting the inference" that the witness was afraid of her common-law husband. Id. at 1203. As Judge Taylor pointed out in her dissent, this was a slim evidentiary reed on which to predicate waiver of a constitutional right. Id. at 1206. First, "Braun's reasons for not testifying were doubtless complex, but there is no evidence whatsoever that they were anything other than personal, and her own." Id. at 1208. Second, the defendants had "asked leave of the trial court to subpoena her for cross-examination . . . and were denied that leave." Id. at 1207. Finally, there was "no proof that [two of the] defendants . . . participated in any effort to procure Braun's refusal to testify." Id. at 1207-08. Nevertheless, the majority concluded that "it was not unreasonable for the court to infer . . . that [the defendants] jointly planned a strategy to prevent [the witness's] testimony in order to escape conviction and that they agreed that Owen Kilbane would use his influence and control over her to induce her not to testify." Id. at 1203. The Rouco and Steele decisions would have come out differently if the courts had applied the Zerbst standard. That, I suggest, would have been a good thing.
285. Although the Constitution does not require investigation target warnings, see United States v. Washington, 431 U.S. 181, 189 (1977), they are required by Justice Department policy. See U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEY'S MANUAL § 9-11.150 (1995). Prosecutors might also inform defendants of the confrontation right and the potential ramifications of witness tampering in documents submitted to the defendant or counsel relating to indictment or grand jury subpoena. Similarly, prosecutors might ensure that police inform newly arrested suspects that they have a right to confrontation, but that this right may be waived by engaging in witness tampering.
286. Consider, for example, that in the last twenty years, the Ninth, Third, and Seventh Circuits, containing the cities of Los Angeles, Philadelphia, and Chicago, have never addressed the confrontation waiver doctrine in a reported decision.
287. See Idaho v. Wright, 497 U.S. 805, 814-15 (1990) (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)): [O]nce a witness is shown to be unavailable, "his statement is admissible only if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." I assume that admission of hearsay under the waiver theory is not a firmly rooted exception, and therefore, that courts cannot simply infer reliability. See id. at 819 ("Particularized guarantees of trustworthiness must be shown from the totality of circumstances. . . . [T]he relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief."). Relevant factors include, but are not limited to, the "spontaneity of the statement," the "demeanor" of the declarant, and whether the declarant would "make up a story of this nature." Id. at 826-27.
288. See supra Part I.B.5.
289. See id.
290. See Wright, 497 U.S. at 814 (noting that, although the Confrontation Clause and hearsay rules protect similar values, the Confrontation Clause's prohibitions should not be equated with the general rule prohibiting the admission of hearsay statements); see also United States v. Houlihan, 92 F.3d 1271, 1281 (1st Cir. 1996) (noting that the "Supreme Court has yet to plot the crossroads at which the Confrontation Clause and the hearsay principles embedded in the Evidence Rules intersect").
291. California v. Green, 399 U.S. 149, 155-56 (1970) (citations and footnotes omitted).
292. See Reynolds v. United States, 98 U.S. 145, 161 (1878) (admitting prior testimony evidence when "[t]he accused was present at the time the testimony was given, and had full opportunity of cross-examination").
293. When the accused was present and had full opportunity to cross-examine a witness's prior testimony, such statements were not hearsay under nineteenth-century definitions. See, e.g., Minneapolis Mill Co. v. Minneapolis & St. Louis Ry. Co., 53 N.W. 639, 642 (Minn. 1892). Under the modern Federal Rules of Evidence, such a statement is hearsay, but admissible when the declarant is unavailable. FED. R. EVID. 804(b)(1). A finding of confrontation waiver is no longer required to admit prior testimony. See Mancusi v. Stubbs, 408 U.S. 204, 213 (1972) (noting that admission of prior recorded testimony in an identical cause, between identical parties, does not violate the Confrontation Clause); Mattox v. United States, 156 U.S. 237, 243 (1895) (holding that prior testimony is not barred by the Confrontation Clause because for "a criminal, after having once been convicted by the testimony of a certain witness, [to] go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent").
294. Reynolds, 98 U.S. at 158 (emphasis added).
295. The Federal Rules of Evidence amend and codify the common law doctrine of competence. See FED. R. EVID. 601-706. Trial courts also retain discretionary power to exclude evidence on the grounds of competence pursuant to FED. R. EVID. 403. See 3 WEINSTEIN & BERGER, supra note 38, ¶ 601.01. Therefore, the approach adopted by the Fourth and Tenth Circuits, under which a defendant who waives the right to confrontation waives all rights to object under the Federal Rules of Evidence, see supra Part I.B.5, contradicts the Court's decision in Reynolds.
296. See FED. R. EVID. 103.
297. See generally id. 402 (listing the sources of exceptions to the Federal Rules of Evidence); United States v. Jacobs, 547 F.2d 772, 777 (2d Cir. 1976) (stating that the intent behind Rule 402 "was to bar common law rules of evidence or state rules of evidence, if inconsistent"); Edward W. Cleary, Introduction to FEDERAL RULES OF EVIDENCE FOR UNITED STATES COURTS III, V (West 1993) (commenting that no common law of evidence remains under the Federal Rules except as a source of guidance within the confines of the rules).
298. FED. R. EVID. art. VIII advisory committee's note.
299. See id. 804(b)(5) (requiring admissible hearsay evidence to have circumstantial guarantees of trustworthiness).
300. Arguably, the government might have cured any statement unreliability through live testimony and cross-examination had the defendant not interfered. Thus, one might suggest that applying Rule 804(b)(5) in this context rewards the defendant for tampering. However, Rule 804(b)(5) expressly requires the judge to make a just determination regarding admission of the statement. See id. Pursuant to that requirement, the judge may take the defendant's responsibility into account as a factor supporting admission. See United States v. Barlow, 693 F.2d 954, 962 (6th Cir. 1982) (stating "that among the many factors which a court may consider in determining the admissibility of grand jury testimony is the extent of the defendant's role in making the witness unavailable"); Tolbert v. Jago, 697 F.2d 753, 755 (6th Cir. 1979) (indicating that evidence of a defendant's threatening a witness is relevant to the admissibility of evidence under Rule 804(b)(5)).
301. See United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir. 1982) (applying a dual waiver theory without citing any authority for this position); United States v. Balano, 618 F.2d 624, 626 (10th Cir. 1979) (same); United States v. Houlihan, 887 F. Supp. 352, 352-60 (D. Mass. 1995) (announcing that the court will follow the majority rule without providing independent justification for a dual waiver), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996); United States v. White, 838 F. Supp. 618, 621 (D.D.C. 1993) (following "most courts," with no independent justification for a dual waiver).
302. See United States v. Thevis, 665 F.2d 616, 632 (5th Cir. Unit B 1982) (noting that the hearsay rule and the Confrontation Clause serve similar interests).
303. Id. at 632-33.
304. But see California v. Green, 399 U.S. 149, 155 (1970) (commenting that, although the Confrontation Clause and the hearsay rules do not completely overlap, they "are designed to protect similar interests").
305. See FED. R. EVID. 803-04 (presenting exclusions and exceptions to the hearsay rule).
306. See id. 804(b)(5) (requiring that the interests of justice be served as one of the prongs for admission of hearsay).
307. See supra Part I.B.4.
308. See United States v. Enright, 579 F.2d 980, 986 (6th Cir. 1978) (applying a preponderance standard when determining the admissibility of statements under the coconspirator exception).
309. See United States v. Wade, 388 U.S. 218, 240 (1967) (holding tainted identifications to a clear and convincing standard of reliability prior to admittance into evidence).
310. See Lego v. Twomey, 404 U.S. 477, 484 (1972) (applying a preponderance standard to determine if a confession was given voluntarily).
311. This is the approach taken by the courts in Steele v. Taylor, 684 F.2d 1193, 1202-03 (6th Cir. 1982) (applying a preponderance standard in comparing the waiver to coconspirator statements), and United States v. Thevis, 665 F.2d 616, 631 (5th Cir. Unit B 1982) (comparing waiver to a tainted identification and applying a clear and convincing standard).
312. See United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982) (applying a preponderance standard).
313. 384 U.S. 1 ,4 (1966) (emphasis added) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). No court applying the confrontation waiver rule, including those applying the clear and convincing standard, has recognized the relevance of Brookhart to this issue.
314. Although strong instrumental reasons for adopting a preponderance standard in the witness tampering context might be sufficient to distinguish Brookhart, no court has yet suggested such reasons. In Mastrangelo, the Second Circuit noted two such non-precedential justifications for the preponderance standard, but both are weak. First, the court suggested that "a claim of waiver is not one which is . . . disfavored by the law." Mastrangelo, 693 F.2d at 273. This claim may be accurate in the common law context, but it is patently incorrect in the constitutional context. See Brookhart, 384 U.S. at 4 ("There is a presumption against the waiver of constitutional rights."); Zerbst, 304 U.S. at 464 ("'[C]ourts indulge every reasonable presumption against waiver' of fundamental constitutional rights." (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937))). Second, the Mastrangelo court asserted that "there is hardly any reason to apply a burden of proof which might encourage behavior which strikes at the heart of the system of justice itself." Mastrangelo, 693 F.2d at 273. This claim is uncompelling as well. A very good reason exists to adopt a more rigorous standard. Allowing slim evidence to prevent a defendant from exercising a fundamental constitutional right cuts away at the strength and legitimacy of our whole system of constitutional rights. Similarly, the courts have an interest in excluding use of potentially unreliable hearsay that might effect the integrity of the factfinding process, unless it is clear that the defendant truly intended and preferred to forgo confrontation of the witness at trial.
315. See Boykin v. Alabama, 395 U.S. 238 (1969) (holding that the confrontation right may be waived by a guilty plea); McCarthy v. United States, 394 U.S. 459 (1969) (same); Barber v. Page, 390 U.S. 719 (1968) (holding that the confrontation right may be waived, but finding no waiver on the facts at bar); Brookhart, 384 U.S. 1 (1966) (same); Reynolds v. United States, 98 U.S. 145 (1878) (holding that a defendant who conceals a witness waives the right to confront that witness). See generally Zerbst, 304 U.S. 458 (stating that waiver is ordinarily an intentional relinquishment of a known right or privilege); Snyder v. Massachusetts, 291 U.S. 97, 106 (1934) (Cardozo, J.) (stating that constitutional rights may be lost by consent or by misconduct, or through waiver actual or implied).
316. See Taylor v. United States, 414 U.S. 17 (1973) (holding that the right to be present at trial can be waived by voluntary absence); Illinois v. Allen, 397 U.S. 337, 342-43 (1970) (holding the right to be present at trial waived by contumacious behavior); Boykin, 395 U.S. 238 (1969) (holding that the right to confrontation is waived by a guilty plea); McCarthy, 394 U.S. 459 (1969) (same); Snyder, 291 U.S. at 106 (holding that the right to be present at trial can be lost by consent or misconduct, or through express or implied waiver); Reynolds, 98 U.S. at 158-61 (holding the confrontation right waived by concealing a witness).
317. See Brookhart, 384 U.S. at 4; United States v. Thevis, 665 F.2d 616, 631 (5th Cir. Unit B 1982).
318. See Reynolds, 98 U.S. at 158-61; United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996); United States v. Thai, 29 F.2d 785 (2d Cir. 1994); United States v. Aguiar, 975 F.2d 45 (2d Cir. 1992); United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir. 1991); Mitchell v. Hoke, 930 F.2d 1 (2d Cir. 1991); United States v. Smith; 792 F.2d 441 (4th Cir. 1986); United States v. Rouco, 765 F.2d 983 (11th Cir. 1985); United States v. Potamitis, 739 F.2d 784 (2d Cir. 1984); United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982); Thevis, 665 F.2d at 631; Black v. Woods, 651 F.2d 528 (8th Cir. 1981); United States v. Balano, 618 F.2d 624 (6th Cir. 1979); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976); United States v. White, 838 F. Supp. 618 (D.D.C. 1993).
319. See Boykin, 395 U.S. 238 (1969); McCarthy, 394 U.S. 459 (1969); Barber v. Page, 390 U.S. 791 (1968); Brookhart, 384 U.S. 1 (1966); Zerbst, 304 U.S. 458 (1938); Thevis, 665 F.2d 616 (5th Cir. Unit B 1982).
320. See FED. R. EVID. art. VIII advisory committee's note; Dutton v. Evans, 400 U.S. 74, 81-82 (1970); California v. Green, 399 U.S. 149, 155-56 (1970); Reynolds, 98 U.S. 145 (1878); United States v. Rouco, 765 F.2d 983 (11th Cir. 1985); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976).
321. See United States v. Barlow, 693 F.2d 954, 962 (6th Cir. 1982) (finding the defendant's role in making a witness unavailable relevant to the Rule 804(b)(5) determination); Tolbert v. Jago, 607 F.2d 753, 755 (6th Cir. 1979) (finding evidence that the defendant caused a declarant's loss of memory relevant to the Rule 804(b)(5) determination).
322. See Houlihan, 92 F.3d at 1278 (audio tape and witness repeating statement of declarant); Thai, 29 F.3d at 814 (witness repeating statement of declarant); Rouco, 765 F.2d at 984 (same); Thevis, 665 F.2d at 627 (transcript); White, 838 F. Supp. at 624-25 (police report); United States v. Williamson, 792 F. Supp. 805 (M.D. Ga. 1992) (witness repeating statement of declarant).
323. See Balano, 618 F.2d at 630.
324. See Aguiar, 975 F.2d 47 (2d Cir. 1992) (using statements admitted under waiver theory to prove witness tampering); Thevis, 665 F.2d at 621-24 (using statements admitted under a waiver theory to prove facts asserted as well as the additional act of murdering a witness); White, 838 F. Supp. at 621, 625 (same). See generally United States v. Houlihan, 887 F. Supp. 352 (D. Mass. 1995) (providing a discussion of these cases), aff'd in part, rev'd in part, and vacated in part, 92 F.3d 1271 (1st Cir. 1996).
325. Steele v. Taylor, 684 F.2d 1193, 1201 & n.10 (6th Cir. 1982).
326. See Houlihan, 92 F.3d at 1282.
327. See infra Part IV.B.
328. For the history of the hearsay rule, see generally 5 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 1364 (3d ed. 1940).
329. Lord Morley's Case, 6 State Trials 769 (1666) (Eng.).
330. Id. at 769.
331. Id. at 771.
332. Id. at 776-77.
333. Id. at 777. Lord Morley was acquitted of murder but convicted of manslaughter, and, accordingly, was forced to pay a fine. Id. at 785-86.
334. Harrison's Case, 12 State Trials 833 (1692) (Eng.).
335. Id. at 851.
336. Fenwick's Case, 13 State Trials 579 (1696) (Eng.).
337. See cases cited infra note 317.
338. See Bergen v. People, 17 Ill. 426, 427 (1856) (holding that testimony from a previous trial was not admissible, despite the fact that the witness was "spirited away" by one of the parties). The Bergen court acknowledged that "if a party, in any case, spirits away his adversary's witness, he ought not to profit thereby; or, at least, suitable penalties should be provided against such conduct," but concluded that it was up to the legislature to provide for such a rule if it were needed. Id.
339. See Williams v. State, 19 Ga. 402 (1856) (citing Morley and ruling that a witness's extrajudicial statements to a magistrate are admissible at trial upon proof that the defendant procured the witness's absence; but ruling that the government offered no such proof of procurement); State v. Houser, 26 Mo. 431 (1858) (citing Morley and noting, in dicta, that depositions to investigating magistrates are admissible when the defendant has procured the witness's absence); Regina v. Scaife, 117 Eng. Rep. 1271, 1272 (1851) (holding that a witness's statement to a magistrate, given in the presence of the defendants, is admissible against the defendant who procured the witness s absence but is inadmissible against defendants who were not involved in the procurement scheme); Regina v. Guttridges, 173 Eng. Rep. 916 (1841) (holding that the deposition of a rape victim given to an investigating magistrate in the presence of the defendants was not admissible, because the government provided insufficient proof that the defendants had procured the witness's absence).
340. See Drayton v. Wells, 10 S.C.L. (1 Nott & McC.) 409, 411 (1819) (noting, in dicta that testimony from a prior trial between two parties is admissible in a later trial between the same parties when "the Court [is] satisfied that the witness had been kept away by the contrivance of the opposite party"); Green v. Gatewick, Y.B. 24 Car. 2, Mic. (1683) (noting that in a second trial between two parties, persons were admitted to swear to what an absent witness had testified in an earlier trial on the same issue on the presumption that the plaintiff had kept the witness away), cited in SIR FRANCIS BULLER, AN INTRODUCTION TO THE LAW, RELATIVE TO TRIALS AT NISI PRIUS *243.
341. See, e.g., Williams, 19 Ga. at 402 (admitting prior testimony when there had been opportunity for cross-examination by the defendant); Houser, 26 Mo. at 432, 438 (noting that the accused had met the witness face-to-face, and had an opportunity to cross-examine); Drayton, 10 S.C.L. at 411 (admitting prior testimony when there had been an opportunity for cross-examination); Scaife, 117 Eng. Rep. at 1271 (admitting a statement made in the presence of the accused).
342. See 1 SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE § 163 (Simon Greenleaf Croswell ed., 14th ed. 1883).
343. See Houser, 26 Mo. at 440-41.
344. Id. at 436.
345. Steele v. Taylor, 684 F.2d 1183, 1201 & n.10 (6th Cir. 1982) (citing Lord Morley's Case, Harrison's Case, and Scaife).
346. 400 U.S. 74, 94 (1970) (Harlan, J., concurring).
347. Reynolds v. United States, 98 U.S. 145, 159 (1878) .