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Name: U.S. v. Johnson
Case #: 10-50401
Court: US Court of Appeals
District 9 Cir
Opinion Date: 09/12/2014

Crawford v. Washington (2004) 541 U.S. 36, does not mandate there be clear and convincing evidence the defendant is responsible for the witness’s unavailability before testimonial hearsay may be introduced under the forfeiture exception to the confrontation clause. Appellants Johnson and Williams appealed their convictions for robbery and murder. On appeal they challenged the trial court’s admission of testimonial statements made by prosecution witness Burgess, to a grand jury and to police, after Burgess disappeared prior to trial. Held: Affirmed. In Crawford the Court rejected the “indicia of reliability” test governing the admission of hearsay and ruled that out-of-court testimonial statements of unavailable witnesses may only be admitted if the defendant had an opportunity to cross-examination the witness. There is a “forfeiture” exception to the confrontation clause of the Sixth Amendment that applies when the defendant is responsible for the witness’s unavailability. This exception, which is an equitable doctrine designed to prevent defendants from benefitting from their own wrongdoing, was not undermined by Crawford. The trial court here found the government had proven forfeiture by a preponderance of the evidence, as required by Federal Rules of Evidence, Rule 804(b)(6). Appellants’ claim that post-Crawford the standard for admission of such evidence is clear and convincing evidence is unsupported by the purpose of the forfeiture doctrine. Further, cases subsequent to Crawford have at least suggested that a preponderance of the evidence standard applies to the forfeiture doctrine. (Davis v. Washington (2006) 547 U.S. 813 [Court declined to decide standard but acknowledged Rule 804(b)(6) standard]; Giles v. California (2008) 554 U.S. 353 [observing that Rule 804(b)(6) codifies forfeiture exception].)