Forfeiture by Wrongdoing

State of Washington v. Mason (2007)

In an article published in the Washington Association of Criminal Defense Lawyers’ Defense magazine, lawyer Nancy Collins reports on the Washington Supreme Court case adopting the doctrine of forfeiture by wrongdoing. Under the doctrine, a criminal defendant whose wrongdoing causes a witness not to testify at trial forfeits the right to confront that witness’s testimonial evidence against him or her.

In child abuse cases, the child often reports that the accused told her or him not to tell. If the child then refuses to testify, the prosecution may contend the child’s out-of-court statements are admissible under the doctrine of forfeiture by wrongdoing. Collins’ article is thus good reading for lawyers handling child abuse criminal cases.

Before applying the doctrine in a child abuse case, the court would have to find that the child’s refusal to testify could not be overcome, and that it was due to the accused’s conduct. Counsel for the accused should be slow to concede either point.

A further issue, not addressed in the Mason case or Collins’ article, is what kind of statement and behavior by the accused would permit invoking the doctrine. For example, need the court find that the accused threatened some harm if the child did tell? And if the court finds the accused said only, “Don’t tell your parents,” should that be treated as the reason the child won’t tell the jury? These are questions yet to be decided by courts in most jurisdictions.