Massachusetts Supreme Judicial Court Limits Scope of Forfeiture by Wrongdoing Doctrine

The Massachusetts Supreme Judicial Court today concluded the forfeiture by wrongdoing doctrine did not apply to a case where the defendant pressured a witness to not testify in an unrelated trial involving his friend.  The name of the case is Commonwealth v. Rosado. 

The defendant’s friend was charged with murder.  The defendant’s ex-girlfriend (and the mother of his daughter) was an important witness for the Commonwealth.  The defendant did not want his ex-girlfriend to testify against his friend.  Prior to the murder trial, the defendant wrote a Facebook post that the ex-girlfriend was a rat who couldn’t be trusted.  A second Facebook post contained the defendant’s offer to pay someone to beat up the ex-girlfriend.  When the ex-girlfriend called the defendant after learning about the Facebook posts, he told her to lie to the police to avoid testifying at the murder trial.  He also threatened to physically assault her.  As a result, the ex-girlfriend was scared to be in public because she worried she would run into the defendant.  She told state troopers about the defendant’s Facebook posts and threats prior to the trial.  She still ended up testifying, but the defendant’s friend was found not guilty of murder.

Following the defendant’s friend’s acquittal, the Commonwealth charged the defendant with intimidation of a witness.  In order to prove the defendant guilty of witness intimidation, the Commonwealth needed to establish he intentionally interfered with a witness (the ex-girlfriend) who was in the process of providing information at a criminal proceeding.  If the ex-girlfriend’s allegations were true, the defendant’s threats and Facebook posts absolutely constituted witness intimidation.  The defendant allegedly engaged in an effort to intimidate the ex-girlfriend to prevent her from offering testimony in a murder trial that presumably would be favorable to the Commonwealth.  The problem for the Commonwealth was that between the murder trial and the defendant’s witness intimidation trial, the ex-girlfriend decided to leave Massachusetts.  She talked to the prosecutor on the phone and said she would not testify against the defendant because she feared for the safety of herself and her daughter.  She also told the prosecutor the defendant had not bothered her since his arrest on the witness intimidation charge and she was not afraid of him anymore (instead, she was scared of retribution from the defendant’s friend who had been acquitted of murder).   With the ex-girlfriend’s refusal to return to Massachusetts, the prosecutor sought to introduce her statements to the police (and later to the grand jury) at trial under the doctrine of forfeiture by wrongdoing.

Ordinarily an out-of-court statement is not admissible in court pursuant to the prohibition against the introduction of hearsay.  However, there are many exceptions to the hearsay rule, including forfeiture by wrongdoing.  If a criminal defendant causes a witness to be unavailable to testify against him at his trial, and does so with the intent to procure the witness’s unavailability, then the witness’ hearsay statements can be admitted against him.  The theory behind the rule is that a defendant should not benefit by causing a witness against him to be unavailable.  In this case, the Supreme Judicial Court determined the rule did not apply, because the defendant was not trying to interfere with the ex-girlfriend’s testimony at his own trial.  Instead, he was intimidating her with the intent to prevent her from testifying at his friend’s murder trial.  The Court found that unless the defendant intended to prevent the witness’ testimony during his own case, the forfeiture by wrongdoing rule is inapplicable.

Unless the Commonwealth can prove its case without the testimony of the defendant’s ex-girlfriend, it probably will have no choice other than to dismiss the case.