Domestic Violence Defendant Held to Have Forfeited Confrontation Right

The Washington Supreme Court has affirmed the domestic violence conviction of a man whose alleged victim did not come to trial to testify against him. It did so by finding that the man had intentionally used threats to prevent the woman from testifying against him. The case is State of Washington v. Timothy John Dobbs, Docket No. 87472-7, decided March 13, 2014.

Dobbs was found guilty of stalking with a deadly weapon, felony harassment, intimidating a witness, and drive-by shooting—all of them charged as domestic violence crimes—and of two other crimes.

The majority opinion summarized the facts like this:

We know that Dobbs had been stalking and threatening C.R. [the woman who did not testify] with violence, including threats to shoot her. We know that C.R. knew Dobbs had a gun and was terrified that he was going to kill her. She told police that if they did not find Dobbs soon, they were going to find her dead. We know that after Dobbs threatened to shoot her house and everyone in it, he partially followed through on that threat by shooting at her residence … . We know that once C.R. chose to report Dobbs to the police, Dobbs began harassing her about that decision and warned her that she was going to “‘get it.”‘ We know that Dobbs left a note with C.R. telling her that she would “‘reap a world of trouble and pain.'” We know that C.R. received a text the day of the shooting that warned her that she would not be safe even if she moved, telling her that “‘my bro lives down there and he’s a known figure”‘ and “‘[y]ou can’t get away from me.”‘ And we know that after he shot at C.R.’ s house, he returned with a gun again and forced his way into her residence. We know that C.R. was forced to run from her own home, screaming for help. After Dobbs was finally apprehended that evening, we know that he called C.R. from jail and left a voice mail pleading with her not to press charges. The police officer who listened to the voice mail recalled that it “quickly turned into kind of a threatening of don’t do this to me or—or you’ll regret it.”

Under both the Washington and United States Constitutions, a criminal defendant has the right to confront adverse witnesses. In general, this means the right to have witnesses testify in person at trial. This right can be forfeited, though. If a defendant causes a witness not to attend trial, and his purpose is to prevent the witness’s testifying, he has forfeited his confrontation right. The courts call this “forfeiture by wrong-doing.”

Defendants in domestic violence, rape, and child abuse cases are especially vulnerable to claims that they have caused complainants not to come to trial. As the dissenting opinion in the Dobbs case said, “It is difficult to imagine a domestic violence case that would not involve threats or action designed to cause fear in the recipient.”

The majority of the Washington Supreme Court held that the trial court properly decided Dobbs had forfeited his confrontation right.

Three justices of the court dissented. They noted (as did the majority) that Washington law requires forfeiture of the confrontation right be proven by “clear, cogent, and convincing evidence,” the highest standard of proof other than “proof beyond a reasonable doubt.” The dissenting opinion argued the evidence in the Dobbs case did not meet that standard:

The majority’s conclusion is mere speculation in light of the multiple plausible theories for C.R.’s nonappearance. It is certainly possible that Dobbs’s phone call and voice message to C.R., along with his earlier acts of intimidation and harassment, dissuaded C.R. from testifying. However, it is also quite possible that she had some other motive: … she may have decided she did not want him to be convicted. She may also have been intimidated by the prospect of appearing in court, or may have had a personal distaste for cooperating with law enforcement once the original threat had dissipated. As early as November 17 she was not showing up for appointments at the police station, and no evidence suggested it was because she was afraid. We do not know what occurred in the months between her sworn statement to police on November 10 and her absence from trial on January 25 to change C.R.’s perspective (even assuming she ever intended to testify); we can only speculate. Where the evidence supports multiple inferences as to the cause of a witness’s failure to appear, we cannot conclude that the evidence of causation is clear, cogent, and convincing.

The dissent said the clear, cogent, and convincing standard “is deliberately difficult: it does not permit courts to assume a link between a defendant’s wrongful behavior and a witness’s absence where there may be none.”

The dissent also observed that a court trying to decide, before trial, whether a defendant has forfeited his confrontation right will often do so by considering whether he has committed the charged crimes. This is because it will often be through those alleged crimes—such as the crimes of stalking, harassment, and intimidating a witness charged against Dobbs—that the prosecution alleges the defendant caused a witness not to testify.

Establishing forfeiture sometimes requires presupposition of the very guilt the defendant sought to challenge through confrontation, thus ensnaring him or her in a circular trap. Any time a set of unconfronted, extrajudicial statements tend both to incriminate the defendant and establish grounds for forfeiture, that defendant could lose any opportunity to challenge their accuracy and truthfulness through cross-examination.

The majority and the dissent agreed that whether Dobbs had forfeited his right to object to hearsay turned on the same factors as whether he had forfeited his confrontation right.