A Murder Case Highlights an Odd Exception to the Sixth Amendment

Posted in: Constitutional Law

In 2008, Mark Jensen of Wisconsin was convicted of first-degree intentional homicide in the killing of his wife, Julie Jensen. In the course of his trial, the prosecution introduced evidence of a letter that the victim had written prior to her death, to be delivered to the police in the event of her death. In the letter, Julie said that she worried that her husband might be plotting to kill her and that if she turned up dead, it was not because she committed suicide, which she would not do.

The prosecution also introduced oral statements by the victim to police in which she voiced similar fear that her husband was plotting to kill her. Though the trial court initially refused to admit this evidence, it eventually came in due to an interlocutory ruling by the Wisconsin Supreme Court. The Wisconsin high court ruled that the evidence would be admissible under the “forfeiture by wrongdoing” doctrine, over a Sixth Amendment Confrontation Clause objection, if the trial court found, by a preponderance of the evidence, that the defendant had killed the victim and thereby rendered Julie Jensen unavailable to testify. The trial court so found, after following the Wisconsin Supreme Court’s directions, so the evidence was admitted, and the defendant was convicted.

After Mark Jensen’s trial and conviction, the U.S. Supreme Court issued a ruling in Giles v. California, holding that the “forfeiture by wrongdoing” exception to confrontation is quite narrow and applies only if the defendant’s purpose (or one of his purposes) in wrongfully making the victim unavailable was to prevent her from testifying. On Jensen’s appeal, the Wisconsin Court of Appeals still affirmed the homicide conviction on harmless error grounds, concluding that if there was a Confrontation Clause error, there was so much other evidence of the defendant’s guilt offered as trial that the erroneously admitted evidence would not have affected the outcome.

The defendant subsequently brought a successful petition for habeas corpus in the federal district court for the Eastern District of Wisconsin. In Jensen v. Schwochert, the federal district court held that admission of the victim’s letter and statements to police officers at trial violated the Confrontation Clause and would necessarily have had such a powerful impact on jurors that it could not reasonably be characterized as harmless error, particularly given various weaknesses in the prosecution’s case. In granting the defendant’s habeas petition, the district court found that the state appellate court had misapplied the federal law governing harmless error analysis.

In this column, I will examine the logic of the “forfeiture by wrongdoing” exception to the Confrontation Clause and whether the distinction between its proper application and its application in Jensen’s case holds up to critical analysis.

Hearsay and Confrontation

The first thing to consider is the meaning of hearsay, because there is an important link between the rule against hearsay (common to federal and state courts) and the Confrontation Clause. As most people who have attended law school know, hearsay is an out of court statement offered for the truth of the matter asserted in the statement. In other words, a statement offered into evidence constitutes hearsay if the declarant (the maker of the statement) made it outside of the proceeding at which the statement is offered in evidence, and the statement’s relevance to the case rests on the jury’s (or other fact-finder’s) believing that the declarant was speaking accurately and truthfully in making the statement. For example, a plaintiff in a negligence suit offers into evidence John Doe’s written statement, “the plaintiff slipped and fell because the defendant used an extremely slippery floor wax that no one uses anymore.” If offered to prove that this is in fact why the plaintiff slipped and fell, then the written statement constitutes hearsay.

In daily life, we regularly rely on hearsay and even on multiple hearsay in making decisions. At a trial, though, the hearsay rule generally excludes such evidence on the theory that the jury is not in a good position to evaluate the accuracy and truth of statements when the statements were made outside of its presence. With the jury considered a human lie detector, it cannot do its work assessing the truthfulness of statements made elsewhere. In addition, the out of court declarant is typically speaking without the solemnizing benefit of an oath, and the opponent is also not in a position to cross-examine the declarant, as he or she would have been able to do if the statement were uttered in court. There exist numerous hearsay exceptions for circumstances in which there might be independent reason to trust the sort of statement in question.

The Sixth Amendment Confrontation Clause overlaps substantially with the rule against hearsay. The Sixth Amendment provides that a criminal defendant has the right to be confronted with the witnesses against him or her. The Court has understood this as a right, among other things, to cross-examine prosecution witnesses. When the prosecution offers a hearsay statement against a criminal defendant, it generally follows that the defendant has no opportunity to cross-examine the declarant about the statement. Yet the proponent of the hearsay statement is, by hypothesis, asking the jury to take the out of court declarant to be telling the truth.

As understood, however, the Confrontation Clause is narrower in some ways than the rule against hearsay. For one thing, the Confrontation Clause applies to hearsay only when the hearsay is offered by the prosecution at a criminal trial. For another, under existing precedents, only those out-of-court statements that qualify as “testimonial,” a term the meaning of which is somewhat vague at present but includes attention to the purpose of the statement as a means of creating evidence for trial, trigger application of the Confrontation Clause. Thus much that is hearsay—out of court statements made to friends in an off-the-cuff fashion, for example—will not violate the Confrontation Clause (though it may still be excluded from evidence under the state or federal rule against hearsay).

Mark Jensen’s Case

In Jensen’s case, it seems clear that in memorializing her suspicions in a letter addressed to the police and in separately giving statements to the police, the victim’s goal was to help build a case against her husband for her own murder. Hers was not an off-the-cuff comment to a friend articulating her fear of her husband. Therefore, the statements do appear to qualify as testimonial, thus triggering application of the Sixth Amendment Confrontation Clause.

One exception to the ordinary exclusion of testimonial hearsay offered against the defendant (when there is and was no opportunity for cross-examination) is in the case of “forfeiture by wrongdoing.” When a declarant is unavailable to testify against the opponent of the out-of-court statement because the opponent wrongfully and deliberately made the declarant unavailable to prevent her from testifying, the statement qualifies for admission over a Confrontation Clause objection under the “forfeiture by wrongdoing” doctrine.

Forfeiture By Wrongdoing

What does the whole concept of “forfeiture by wrongdoing” mean? It is a kind of estoppel argument. If you specifically and intentionally brought about the unfortunate circumstances in which you now find yourself, you cannot be heard to complain about the consequences of those circumstances and request special accommodation for them. To do so, to use the Hebrew word, is to manifest “chutzpah.”

The classic example of this flavor of audacious argument is the man who is found guilty of murdering his parents and then begs for the court’s mercy, on the grounds that he is an orphan. He is entitled to no mercy, of course, because he is the one who intentionally made himself an orphan.

In the “forfeiture by wrongdoing” doctrine, one party attempts to introduce into evidence a statement made by an absent and unavailable witness. The opponent objects to the introduction of the evidence on the grounds that the declarant is not subject to cross-examination, as required by the Confrontation Clause. It turns out, however, that the opponent of the evidence wrongfully and intentionally acted to bring about the declarant’s unavailability as a witness, and it is because of the opponent’s action that the opponent now cannot conduct cross-examination.

Like the orphan in the above-referenced classic case, the opponent who raises a hearsay objection is complaining about a situation which he intentionally created—he deliberately acted to make the witness unavailable to testify, a state of affairs in which cross-examination and the opportunity for the jury to observe the witness’s demeanor on the stand become impossible. Thus he cannot now be heard to complain about a situation that he himself wrongfully procured.

At a gut level, this doctrine seems to make some sense. There is something deeply unjust about a party’s being able to eliminate a witness and thereby silence her and then complain that the only remaining words of the witness are no longer subject to cross-examination and therefore must be excluded. If one acts to eliminate a witness, then the “forfeiture by wrongdoing” rule helps to prevent the wrongdoer’s goal from completely coming to fruition, if there happen to be out of court statements available for introduction, and this may appear to be a victory for justice over chutzpah.

In interpreting the “forfeiture by wrongdoing” rule, however, as mentioned above, the Supreme Court has held that an opponent’s wrongdoing making the declarant unavailable qualifies for this exception only if the wrongdoer had the specific goal (or at least one goal) of making the declarant unavailable as a witness. If a party, by contrast, murders a victim because he hates the victim or refuses to accept that she is leaving him, that murder does not qualify the victim’s prior statements as falling within the “forfeiture by wrongdoing” exception to application of the Confrontation Clause, because the murderer did not commit his murder in whole or in part to prevent the declarant from serving as a witness. Indeed, if not for the murder, there would seemingly have been no proceeding at which the declarant would have had occasion to serve as a witness.

It is the latter situation that confronted the Wisconsin courts in Jensen’s case. Though the defendant allegedly murdered the victim, there was no evidence adduced for the trial judge that Jensen’s goal had had anything to do with trying to render his wife unable to serve as a witness. That is why the Wisconsin Supreme Court erred in its broad interpretation of the “forfeiture by wrongdoing” exception in this case. But two important questions about forfeiture by wrongdoing nonetheless remain.

Who Cares Why He Made Her Unavailable?

One problem with the “purpose” requirement of the “forfeiture by wrongdoing” doctrine is that having the purpose of rendering a witness unavailable would seem unnecessary to the injustice and audacity of first eliminating a witness and then objecting to the admission into evidence of the only remaining words of that witness, an out of court statement. That is, it seems outrageous for a murderer to complain about his not being able to cross-examine his victim, whether he murdered her with the (or with an) objective of keeping her off the stand or whether he murdered her for some independent reason. Either way, admitting the victim’s out of court statement serves to prevent the murderer from invoking at his criminal trial and profiting from a state of affairs that he brought about with his own wrongdoing.

And Isn’t the Trial All About Determining Whether He Committed the Wrongdoing?

Moving in the opposite direction, in favor of eliminating rather than extending the “forfeiture by wrongdoing” doctrine, there appears to be something peculiar about admitting evidence over the defendant’s objection at a murder trial as a kind of punishment for the defendant’s having committed the murder. If the entire point of the trial is to allow the jury to figure out whether or not the defendant in fact murdered the declarant, who is also the victim, then it seems perhaps premature for the judge to rule that the defendant has forfeited his right to cross-examine a key prosecution witness on the grounds that the defendant committed the very murder that he is presumed innocent of committing, pending the jury’s deliberations. It might seem quite unfair to subject the defendant on trial for murder to uncross-examinable evidence whose very admissibility is premised on the conclusion that he is actually guilty. Furthermore, if the jury were familiar with the law of evidence, it could readily determine that the judge had already (and officially, for purposes of ruling on evidence objections) judged the defendant guilty, and that could affect its deliberations.


Ultimately, I think it is fair to conclude that both the narrowness and breadth of the “forfeiture by wrongdoing” doctrine is very much a product of historical and present compromise and thus not readily amenable to an analytically pure defense.

It is true that anyone who commits wrongdoing that results in a witness’s unavailability, whatever the goal of that wrongdoing was, has, from an equitable standpoint, arguably forfeited an objection to not being able to cross-examine that unavailable witness. Yet a Confrontation Clause exception applying to all cases in which the defendant’s wrongdoing made the declarant unavailable would arguably eliminate the important right of confrontation in too many cases. Particularly in murder cases, a defendant might be forced to endure admission of any out of court statements made by the victim, on the grounds that the defendant caused the victim’s unavailability by murdering her and therefore cannot be heard to complain.

If the defendant happens in some cases to be innocent, moreover, it will be especially difficult for him to discredit whatever accusatory statements the victim might have made, since he will not know what would have motivated either a lie or a misstatement. Limiting forfeiture by wrongdoing to cases in which the wrongdoer’s purpose was to make the declarant unavailable narrows the scope of the exception and also singles out what might be regarded as an especially egregious act, from the standpoint of the justice system—specifically aiming to eliminate a source of truth for the jury.

Coming from the other direction, it is also true that in a murder case, even one in which the alleged purpose of the murder was to prevent the victim from serving as a witness, a judge must make what might seem like a premature fact-finding. The judge must determine that the defendant is guilty on the way to admitting evidence that the jury must then consider in figuring out whether the defendant was guilty or not.

There is a response to this seeming paradox. It is that an important part of the judge’s role in a jury trial is drawing factual conclusions—sometimes from inadmissible evidence—as an essential component of making admissibility determinations. When the judge determines that the defendant killed the victim (to silence her words), on this approach, the reason for the determination is evidentiary—it allows for the admission (or exclusion) of the victim’s out of court statement. The same thing happens when the judge rules on other evidentiary objections and must make fact-findings (that may coincide with jury fact-findings) to determine whether to sustain or overrule those objections.

Furthermore, the judge makes this determination by a preponderance of the evidence—a standard of fact-finding that is far more lenient than the “beyond a reasonable doubt” standard by which the jury must determine guilt. It is thus logically consistent for the judge to find the defendant guilty, by a preponderance of the evidence, for purposes of admitting the evidence, and then for the jury eventually to acquit the defendant in the absence of proof beyond a reasonable doubt of his guilt.

Notwithstanding these responses to the objections I identified above, to the overly broad and overly narrow scope of the “forfeiture by wrongdoing” exception, one might well feel unsatisfied with the narrowness of the exception or with its application to criminal defendants in the face of the right to be confronted by prosecution witnesses. To quote Justice Jackson in describing the law of evidence in Michelson v. United States, “much of this law is archaic, paradoxical, and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter-privilege to the other. But somehow it has proved a workable, even if clumsy, system…. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice.” The “forfeiture by wrongdoing” exception in its present form seems well captured by that sentiment.

  • ingeborg oppenheimer

    first of all, commendations to sherry colb for making such complex legal issues clear enough for this non-lawyer to grasp. but beyond that, it seems to this lay person that an important consideration in the mark jenson case is whether the evidence other than the victim’s statements clearly points to the husband as killer. in other words, is it clear from all forensic evidence that it could only have been the husband, and not somebody else, who killed the wife, despite the wife’s prediction that her husband would kill her. if so, the judge’s de facto “finding” of the husband’s guilt by allowing the wife’s statements into evidence would not be wrong [in the lay sense.] if not, i don’t see how the differing standards by which judge and jury are required to consider guilt or innocense justify such admission.

  • pvineman1

    Professor Colb,

    I would respectfully submit that your conclusion that the victim’s letter (to be delivered to the police in the event of her death & accusing her husband as being the prime suspect in her death) was “testimonial” and, therefore, barred from admission at her husband’s criminal trial by the Sixth Amendment’s Confrontation Clause (CC) is wrong. And here is why:

    The Sixth Amendment is applicable to the states only because it has been deemed “incorporated” by the Fourteenth Amendment’s Due Process Clause (DPC). The DPC can serve as a bar to the admission of evidence, even patently unreliable evidence, only if the evidence in question has a causal connection to some “state action.” (See Perry v. New Hampshire, 132 S.Ct. 716 (2012).) Absent “state action,” the DPC is not a bar to the admission of evidence against a criminal defendant. Since the CC applies to the states only because of the DPC, and since the DPC can’t serve as a bar to the admission of evidence unless there is “state action,” a hearsay declarant’s statement implicating someone in a crime (like Mrs. Jensen’s letter) is not barred from admission into evidence by the CC unless it is the product of or, at a minimum, causally connected to some “state action.”

    In the Jensen case, the letter was not the product of or causally connected to any action on the part of any governmental official. Rather, it was voluntarily written by Mrs. Jensen of her own volition and without any suggestion, coaxing, prompting or other conduct on the part of any governmental actor. At Mrs. Jensen’s request (to a friend) it was simply handed over to the police upon her death.

    Given the interplay between the DPC and the CC, and regardless of whether the letter meets any definition of “testimonial” that the Court has announced (see, for example, the plurality’s definition in Williams v. Illinois, 132 S.Ct. 2221, 2242 (2012) [hearsay declarant is a “witness” under the CC only if the “primary purpose” of her statement was to “accuse” a “targeted” person of a crime]), the CC (incorporated via the DPC) cannot serve as a bar to the admission of this evidence because it was not causally connected to any “state action.”

    Apparently, all of the participants in the Jensen case — the prosecutors and the courts — failed to make this fundamental argument. And, as a result, the only remaining avenue to argue for admission was the narrow forfeiture by wrongdoing doctrine enunciated by the Court in Giles.

    I am sure readers of this column would appreciate your thoughts on my DPC-CC-state action argument.

    • ingeborg oppenheimer

      professor kolb, all i can say in response to your post is that this non-lawyer appreciates even more than before the high level of talmudic reasoning that goes into the practice of law. also i am reminded again of the total irrelevance of “common sense” reasoning to said practice, at least as the term is understood in lay usage. that said, to me your argument sounds unassailable, but i’ll leave it to your colleagues in the legal profession to carry on with this discussion. thanks much for responding.

    • Gonzo

      Nah, this line of reasoning was rejected by the United States Supreme Court when Batson was extended to defense attorneys, despite the fact that they are private actors. The fact that the letter is introduced into evidence in a criminal trial — sanctioned by the State — is what makes it state action.