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SJC Addresses Forfeiture by Wrong Doing

shhhh-1433634-225x300The Supreme Judicial Court ruled in Commonwealth v. Rosado that the Commonwealth had failed to prove, pursuant to the doctrine of forfeiture by wrongdoing, that the defendant forfeited his right to object to the admission of a witness’s out-of-court statements.

The background was as follows. “The defendant … is the former boy friend of the witness [Ortiz], and the father of her young daughter.” “Ortiz was a key witness for the prosecution” in the murder prosecution of a friend of the defendant (Mercado). “[T]he day before Mercado’s trial began, Ortiz was interviewed by two State police troopers regarding [Facebook] communications she had received from the defendant,” including statements calling her a “‘trifling bitch’” and “‘an undercover rat.’” Another posted message from the defendant “urged [Ortiz] not to testify against Mercado, and told her that she should lie to the police so that she would not have to testify. Ortiz stated that she had telephoned the defendant after she learned of these Facebook messages, and that he responded by threatening to hit her.” Ultimately, “Ortiz did testify at Mercado’s trial, but the jury” acquitted him. Subsequently, the defendant was indicted for intimidation of a witness (Ortiz), in violation of G.L. c.268, §13B. “[T]he Commonwealth moved in limine to admit in evidence Ortiz’s recorded interview with the State police troopers and her grand jury testimony under the doctrine of forfeiture by wrongdoing, in lieu of Ortiz’s testimony at the defendant’s trial.” Under that doctrine, “a defendant, by his or her wrongdoing, may … forfeit his or her right under art. 12 [of the Massachusetts Declaration of Rights] and our common-law rules of evidence to object to the admission of hearsay evidence.” In Commonwealthv. Edwards, 444 Mass. 526, 540 (2005), the Court “held that the Commonwealth must prove three elements by a preponderance of the evidence for forfeiture by wrongdoing to apply,” including that “‘the defendant acted with the intent to procure the witness’s unavailability.’”

Here, at the hearing on the motion in limine, “[t]he prosecutor attested that Ortiz now resides outside Massachusetts and had been subpoenaed … to appear in court … for the defendant’s trial…. However, … [she] told the prosecutor … that she was not going to testify at trial because she was fearful for the safety of herself and her daughter. Ortiz had informed … the prosecutor, that the defendant had not ‘bothered’ her since he was arrested on the witness intimidation charge, and that she was no longer afraid of [him]. But [she] … feared retribution from Mercado … if she returned” to Massachusetts. The judge denied the Commonwealth’s motion in limine. The Commonwealth petitioned for relief under G.L. c.211, §3, and the single justice reserved and reported the matter to the full SJC.

In its decision affirming the denial of the Commonwealth’s motion in limine, the SJC stated, “[T]he judge did not err in ruling that the doctrine of forfeiture by wrongdoing did not apply in this case because the Commonwealth failed to prove by a preponderance of the evidence that the defendant intended to make Ortiz unavailable as a witness against him.” The Court rejected the Commonwealth’s claim “that the defendant’s intent to prevent Ortiz from testifying in the murder trial against Mercado should suffice as the intent needed to invoke the doctrine of forfeiture by wrongdoing at the witness intimidation trial against the defendant. We decline to adopt such an expansion of the doctrine.” “A defendant’s attempt to make the witness unavailable at another trial that did not involve the defendant does not warrant forfeiting the fundamental” right “of an accused to be confronted with the witnesses against him, … because the defendant does not benefit from the unavailability of the witness at another person’s trial.”

Holding the Commonwealth to its burden of proof and making sure that certain evidence is properly excluded can make or break a case.  Attorney Daniel Cappetta has tried numerous cases, is extremely well versed in evidentiary law, and always fights to exclude harmful, prejudicial, and improper evidence that the Commonwealth may seek to introduce against his clients at trial.  If you or a loved is charged with a criminal case, contact Attorney Cappetta for a free consultation to assess the strength and admissibility of the Commonwealth’s evidence.