This article is the first comprehensive and critical analysis of the new exception to the hearsay rule that permits prosecutors to admit hearsay statements of absent witnesses when the defendant causes their unavailability at trial. The article develops the problems with the rule's overbroad language, its potential to admit unreliable hearsay and its relationship to the Confrontation Clause. These issues are of increasing interest to lawyers, judges and justices now that it is a federal rule and been adopted by ten states.
The first section is a comprehensive statement of the rule as now applied. The exception is traced from English and early American cases to its first modern use in 1976 and then the adoption in the federal rules in 1997. The elements of the exception and the procedures used in admitting the hearsay statements are developed and supported by citations to all the major federal and state cases.
The core of the article is a topic that has not been explored in the cases or law reviews: the rule's language that reaches beyond those who assault witnesses to those who "acquiesce" in it. My analysis is that "acquiesced" is an unworkable test and does not separate those responsible for the witness' absence from those who only know about it. A second them is the introduction of unreliable hearsay under the rule because declarants are often the defendant's accomplices. The Supreme Court found similar hearsay unreliable in Lilly v. Virginia, 527 U. S. 116 (1999).
The breadth of the rule and the risk of unreliable hearsay creates Confrontation Clause problems. Most courts find that the 6th Amendment right forfeited by the misconduct but I maintain that the right remains in many cases and that the exception is not firmly rooted so special indicia of reliability must be shown before hearsay is admitted. I also explore its application to the government when it threatens a witness if he testifies for the defendant and its use in civil cases.
James F. Flanagan, Forfeiture by Wrongdoing and Those Who Acquiesce in Witness Intimidation: A Reach Exceeding Its Grasp and Other Problems with Federal Rule of Evidence 804(B)(6), 51 DRAKE L. REV. 459 (2003).