Summary
The Supreme Court of Colorado held that a defendant forfeits the constitutional right to confront an unavailable witness when the defendant was responsible for the witness's unavailability and acted with intent to deprive the criminal justice system of evidence. The elements must be proven by a preponderance of the evidence at an evidentiary hearing outside the jury's presence, and the forfeiture applies in all proceedings where the witness's statements are otherwise admissible. The court further held that forfeiture does not eliminate separate hearsay objections under the Colorado Rules of Evidence, but affirmed admission of the statements under CRE 807.
Topics
Practice areas
Questions Presented
- Whether forfeiture by wrongdoing requires proof that the defendant intended to prevent the witness from testifying in the particular proceeding in which the witness's statements are offered.
- What elements and standard of proof govern forfeiture by wrongdoing and what procedure must the court use to determine forfeiture.
- Whether forfeiture of the constitutional right of confrontation also eliminates the defendant's hearsay objection under the Colorado Rules of Evidence.
- Whether Angela Vasquez's statements were admissible under Colorado's residual hearsay exception.
Holdings
- A defendant forfeits the right to confront an unavailable witness when the defendant was involved in or responsible for procuring the witness's unavailability and acted with the intent to deprive the criminal justice system of evidence. The intent need not be directed toward preventing testimony in the particular proceeding in which the statements are offered; forfeiture applies in all proceedings where the statements are otherwise admissible.
- The prosecution must prove the elements of forfeiture by a preponderance of the evidence at an evidentiary hearing outside the presence of the jury. The hearing is governed by CRE 104(a), and hearsay may be considered at the preliminary admissibility hearing.
- Forfeiture of the constitutional right of confrontation does not automatically preclude a defendant from asserting a hearsay objection under the Colorado Rules of Evidence. The evidence must independently satisfy the applicable hearsay rules.
- Angela Vasquez's statements identifying Vasquez's voice on the telephone messages were admissible under CRE 807, and any deficiency in the trial court's findings was harmless.
Key quotations
“We hold that where (1) a witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to deprive the criminal justice system of evidence, the defendant then forfeits his right to confront the witness in all proceedings in which the witness's statements are otherwise admissible.” (173 P.3d at 1101-1102)
“Outside the presence of the jury, the prosecution shall have the opportunity to prove by a preponderance of the evidence the elements of the doctrine of forfeiture by wrongdoing.” (173 P.3d at 1105)
“We hold that where a defendant forfeits his right to confront a witness, the reliability of the evidence must still be ensured according to the standards of the Colorado Rules of Evidence.” (173 P.3d at 1106)
Factual background
Vasquez was subject to a restraining order and bail bond prohibiting contact with his wife, Angela Vasquez. Angela reported that Vasquez violated those restrictions by calling her and leaving telephone messages, and her statements identifying his voice were used in the resulting prosecution. Shortly before she was scheduled to testify in a separate harassment case, Angela was found dead; Vasquez told the first officer at the scene that he had killed her because she had "set [him] up."
Procedural history
The trial court admitted Angela Vasquez's out-of-court statements to police after finding that Vasquez forfeited his confrontation rights by killing her and that the statements satisfied the residual hearsay exception. The court of appeals affirmed, holding that forfeiture did not require an intent to prevent testimony and also precluded a hearsay objection. The Colorado Supreme Court affirmed the conviction, but overruled the court of appeals to the extent it held that forfeiture automatically barred hearsay objections.