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Colorado Criminal Law: The Doctrine of Witness Tampering and Forfeiture by Wrongdoing

There are times when clients “suggest” they can “arrange” for a witness to be absent from trial. As a lawyer and Officer of the Court, I instruct them in very unambiguous terms … that that would be a mistake. Not only an error in judgement – but could easily lead to the admissibility of the testimony in any case and the strong possibility of additional charges for witness tampering and/ or witness intimidation charges ( see those topics on my websites )

The Right to Cross Examine Witnesses:

The right of an accused to cross examine witnesses at trial is nearly inviolate. It is a right guaranteed by the Colorado and United States constitution. The doctrine of forfeiture by wrongdoing states that a defendant loses the right to cross examine if he or she commits an act that makes it impossible for the witness to testify.

The Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right “to be confronted with the witnesses against him.” The Sixth Amendment right to confrontation applies to state as well as federal prosecutions. The Colorado Constitution provides that “the accused shall have the right . . . to meet the witnesses against him face to face.” Colo. Const. art. II, § 16.

The doctrine of forfeiture by wrongdoing:

The doctrine of forfeiture by wrongdoing states as follows – to deprive a criminal defendant of his right to confront a witness, the defendant’s wrongful conduct must have been “designed, at least in part, to subvert the criminal justice system by depriving that system of the evidence upon which it depends.”

What this means is that there must be a showing of intent on the part of the defendant to prevent a witness from testifying at trial.

The rule is that:

Where (1) a witness is unavailable; and

(2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and

(3) the defendant acted with the intent to deprive the criminal justice system of evidence,

then:..the defendant then forfeits his right to confront the witness in all proceedings in which the witness’s statements are otherwise admissible.

In order to establish forfeiture, these elements must be proved by a preponderance of the evidence in an evidentiary hearing before the judge and not a jury. The forfeiture applies to confrontation rights under both federal and state constitutions.

Analysis:

Colorado has adopted the U.S. Supreme Court decision called the Crawford Case. That case held that admitting testimonial hearsay at trial, absent the unavailability of the declarant and a prior opportunity for cross-examination by the defendant, violates the defendant’s Sixth Amendment right to confrontation.

How do you lose your right to cross examine? Stay away from witnesses for the prosecution!

Where a defendant engages in wrongful conduct that is designed, at least in part, to subvert the “truth-seeking process,” that defendant can be deprived of the protection of the Confrontation Clause.

If it can be shown that you interfered with the testimony of a witness – somehow prevcenting them from testifying – such as spiriting them out of state before trial – you can lose your rights to cross examine at trial and therefore hearsay statements would be admissible to the court of witnesses no longer available to testify.

However, remember the forfeiture by wrongdoing doctrine requires a showing that the defendant acted with the intent to prevent the witness from testifying at trial.

Further analysis follows:

A. The Intent Requirement

A defendant’s interference with a witness can work a forfeiture of the defendant’s confrontation rights in all proceedings in which the witness’s statements are otherwise admissible.

There is no requirement that the prosecution prove an intent on the part of the defendant that is specific to the particular case at hand.

The idea behind the behind the forfeiture doctrine is to reduce the incentive to tamper with witnesses. The forfeiture doctrine prevents defendants from profiting by their own misconduct; a defendant who eliminates a witness would otherwise be rewarded with the exclusion of that witness’s out-of-court statements.

The belief is that witness tampering is best deterred by a rule that captures all defendants who act with the intention of preventing the judicial process and is targeted at all of the proceedings in which truth-seeking will be effected by the defendants’ wrongdoing.

So here is the rule again:

Where a judge finds that;

(1) the witness is unavailable;

(2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and

(3) the defendant acted with the intent to deprive the criminal justice system of evidence,

then…the defendant then forfeits his right to confront that witness at any proceeding in which the witness’s statements are otherwise admissible. The forfeiture applies to confrontation rights under both federal and state constitutions.

The defendant need not take a criminal action by procuring the unavailability of the witness to meet the act of “wrongdoing” to which the law refers. Furthermore, the defendant does not have to be under indictment or pending trial, and the witness need not be a scheduled witness at the time of the defendant’s interference.

The bottom line: do NOT tamper with a witness in any way whatsoever… always consult with an attorney before taking any action with or regarding a witness to – or victim of an alleged crime.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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