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Update: Forfeiture by Wrongdoing.

IN THE OCTOBER 2017 ISSUE of this journal, we discussed the doctrine of forfeiture by wrongdoing. In April 2018, the Virginia Court of Appeals decided Cody v. Commonwealth, 68 Va. App. 638, 812 S.E.2d 466 (2018), which entirely vindicated the doctrine. In Cody, the victim had been abused for years by her live-in boyfriend, Kevin Cody. Cody had beaten her savagely, including strangulation to near unconsciousness. The victim seized an opportunity and fled with her two boys, calling the police; the recording of that call exposed her fear and panic and provided valuable evidence of the background of abuse. She was referred immediately for a forensic nurse exam, which extensively documented her injuries, treated those injuries, and provided another valuable account of both her ordeal and Cody's prior abuse.

However, Cody called the victim repeatedly from jail, begging her to give him another chance to show her how "magical" their relationship could be. He also told her that she did not need to testify or appear for court. At first, the victim resisted; but over time, the years of abuse that Cody had inflicted on her had their desired effect, and by the time of the preliminary hearing she declared that she would plead the Fifth. We offered her immunity; she refused.

The victim appeared at trial, and as anticipated pleaded the Fifth. As a result, the Commonwealth moved to have her out-of-court statements admitted under the doctrine of forfeiture by wrongdoing. The case involved all the issues we discussed in our 2017 article:

* the standard of proof being a preponderance of the evidence;

* the admissibility of hearsay, including the hearsay the admission of which is being sought, in determining the applicability of forfeiture by wrongdoing;

* the admissibility of prior abuse and its relevance for the defendant's intention to prevent the victim's cooperation (as explained in Giles v. California, 554 U.S. 353, 377 (2008)).

Further, the Court decided a case of first impression: while invocation of a privilege clearly makes a witness unavailable, can that invocation be ascribed to a third party? Cody argued that the victim "was unavailable of her own accord." Id. at 481. However, we presented evidence that the victim was offered immunity for all crimes but for lying, and refused it; that none of the victim's accounts of events had implicated her in criminal activity; and that there was a long history of abuse. We then argued that the Defendant's wrongdoing need not be the only cause of the victim's unavailability, but need merely be a cause. The Court of Appeals agreed, id. at 669-70, even holding that "forfeiture by wrongdoing may be established regardless of whether the witness already decided on her own not to testify." Id. (citations and internal quotation marks omitted).

All in all, the Cody decision indeed, as we argued that forfeiture by wrongdoing should, gives a defendant "just enough rope to hang himself."

By Joshua P. Steward and Donald P. Goodman, III

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Title Annotation:Special Section on Domestic Violence
Author:Steward, Joshua P.; Goodman, Donald P., III
Publication:Prosecutor, Journal of the National District Attorneys Association
Date:Oct 1, 2018
Words:494
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