by Dale Chappell

In a case where the lower courts assumed a defendant prevented an alleged victim of domestic violence from appearing at trial as a witness to testify against him, the Texas Court of Criminal Appeals (“TCCA”) held that the introduction of the alleged victim’s statements without her being at trial was not allowed under the “forfeiture by wrongdoing” exception to the Confrontation Clause of the U.S. Constitution based simply on the fact that the alleged victim lived with the defendant at about the time of the trial, the defendant had a history of domestic violence against the alleged victim, he lied about knowing her whereabouts, and the State had evidence of the instant episode of domestic violence.

When Frederick Brown’s girlfriend told law enforcement that he hit her with a broom and choked her, he was charged with family-violence assault after having a prior conviction for the same. Almost a year later when it was time for trial, an investigator for the prosecution attempted to serve a subpoena on Brown’s girlfriend for her to be a witness against him in court. Brown answered the door and told the investigator that he had “no idea where she was at.” The investigator later returned to the house when Brown was not around and served the subpoena when the girlfriend answered the door.

But she never showed in court. So the State, successfully arguing that Brown had prevented her from testifying, used her earlier statements to law enforcement as evidence that Brown assaulted her. The trial court allowed the statements into evidence under the “forfeiture by wrongdoing” exception to the Confrontation Clause’s bar against introducing witness statements without them being available for cross-examination by the defense. Brown was convicted, and he appealed.

On appeal, the court of appeals found that Brown had “deceived” the investigator by telling him he didn’t know where his girlfriend was and that this was an attempt to thwart service of the subpoena on her. The court concluded that the failure by wrongdoing exception applied, reasoning that the girlfriend was in “fear of cooperating in the prosecution of the case” because of Brown’s actions. The case went to the TCCA.

Under Texas Code Crim. Proc. art. 38.49(9), “A party to a criminal case who wrongfully procures the unavailability of a witness or prospective witness: (1) may not benefit from the wrongdoing by depriving the trier of fact of relevant evidence and testimony; and (2) forfeits the party’s right to object to the admissibility of evidence or statements based on the unavailability of the witness ... through forfeiture of wrongdoing.”

The U.S. Supreme Court has held that such a forfeiture rule only applies where a defendant’s conduct is “designed to prevent the witness from testifying.” Giles v. California, 554 U.S. 353 (2008). The Supreme Court has recognized that domestic violence victims can be prevented from testifying by somewhat indirect actions: “Earlier abuse, or other threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” Id. Nevertheless, the Supreme Court has instructed that the analysis for finding forfeiture by wrongdoing does not change when a case involves domestic violence, stating that there is not a “special, improvised, Confrontation Clause for those crimes that are frequently directed against women.” Id.

The TCCA approvingly cited the Minnesota Supreme Court’s explanation of what the prosecution must prove under Giles: “(1) that the declarant-witness is unavailable, (2) that the defendant engaged in wrongful conduct, (3) that the wrongful conduct procured the unavailability of the witness and (4) that the defendant intended to procure the unavailability of the witness.” State v. Cox, 779 N.W.2d 844 (Minn. 2010).

The TCCA noted that several state and federal courts have broadly defined “wrongdoing” under the forfeiture by wrongdoing doctrine but that the “procurement,” or causation, aspect is more “restrictive.” Referencing state and federal cases, the TCCA said that procurement requires “some sort of discrete acts shown to have been committed by the defendant which could be said to have caused the witness’s unavailability.”

Applying the law to the present case, the TCCA determined that Brown did not caused his girlfriend’s failure to show for court to testify against him. “The state has not offered evidence that the defendant issued any threats or engaged in conduct otherwise designed to control [the witness],” the TCCA said. And the fact he had a prior conviction for the same offense, “standing alone,” did not mean he caused her to be absent from the trial, the TCCA explained.

“This is a case where we have no evidence that anyone engaged in wrongful conduct that caused [the witness] not to show up in court, and the state is claiming that the defendant’s deception means he must have done something. But a conclusion that Appellant improperly influenced [the witness] not to show up for court is based on speculation,” the TCCA further explained.

The TCCA ruled that the witness’ refusal to cooperate was “too indirect or attenuated to satisfy the causation requirement” of the forfeiture-by-wrongdoing doctrine to allow the Confrontation Clause to be set aside.

Accordingly, the TCCA reversed Brown’s conviction and remanded for further proceedings. See: Brown v. Texas, 618 S.W.3d 352 (Tex. Crim. App. 2021).

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