Legal Definitions - forfeiture by wrongdoing

Forfeiture by wrongdoing is a legal principle that prevents a party in a lawsuit from benefiting from their own misconduct when that misconduct makes a crucial witness unavailable to testify. Essentially, if someone intentionally or wrongfully causes a witness to be unable to appear in court, they "forfeit" their right to object to certain evidence that would otherwise be inadmissible.

This principle primarily applies in two significant areas:

• Hearsay Exception: Normally, a statement made out of court (hearsay) cannot be used as evidence in court because the person who made the statement isn't there to be cross-examined. However, if a party's wrongdoing caused the person who made the statement to be unavailable, the court might allow that out-of-court statement to be admitted as evidence.
• Right to Confront Witnesses: In criminal cases, the Sixth Amendment gives defendants the right to confront the witnesses against them. Forfeiture by wrongdoing is an exception to this right, meaning a defendant who wrongfully made a witness unavailable might lose their right to object to that witness's prior statements being used against them.

To invoke this rule, the party seeking to admit the evidence must prove to the court, by a "preponderance of the evidence" (meaning it's more likely than not), that the opposing party intentionally engaged in wrongdoing to prevent the witness from testifying.

Examples of Forfeiture by Wrongdoing:

• Criminal Case - Witness Intimidation: A defendant is on trial for armed robbery. A key witness, who identified the defendant to the police shortly after the crime, receives credible threats against their family if they testify. Fearing for their loved ones' safety, the witness flees the country and cannot be located for the trial. The prosecution can argue that the defendant (or someone acting on their behalf) engaged in wrongdoing by intimidating the witness, thereby making them unavailable. If the court agrees, the witness's prior statement to the police identifying the defendant could be admitted as evidence, even though the witness isn't present to testify.

  This illustrates forfeiture by wrongdoing because the defendant's alleged intentional intimidation (the wrongdoing) caused the witness's unavailability, allowing the otherwise inadmissible hearsay statement to be used.

• Civil Case - Preventing Testimony: In a complex business fraud lawsuit, a former employee of the defendant company possesses crucial documents and knowledge that would expose the fraudulent scheme. The plaintiff plans to call this former employee as a witness. However, before the trial, the defendant offers the former employee a substantial, non-disclosure agreement-bound severance package and a fully paid, long-term "consulting" position in a remote country, explicitly conditioning the offer on the employee's immediate departure and unavailability for the trial. The employee accepts and becomes unreachable. The plaintiff could argue forfeiture by wrongdoing to introduce the former employee's prior sworn deposition testimony or other statements, as the defendant intentionally made the witness unavailable.

  This demonstrates forfeiture by wrongdoing because the defendant's deliberate actions (offering a deal to ensure unavailability) constitute the wrongdoing, allowing the plaintiff to introduce the witness's prior statements.

• Criminal Case - Murder of a Witness: A man is charged with murder. A neighbor witnessed the entire incident and gave a detailed statement to the police, identifying the defendant. Before the trial, the neighbor is found murdered. Investigators uncover evidence strongly suggesting the defendant orchestrated the neighbor's murder specifically to prevent them from testifying. The prosecution would then argue forfeiture by wrongdoing, seeking to introduce the neighbor's initial statement to the police.

  Here, the ultimate wrongdoing (orchestrating the murder) directly caused the witness's unavailability, allowing their prior statement to be admitted against the defendant, overriding both hearsay rules and the right to confront witnesses.