Multiple motives for preventing witness testimony expand the forfeiture-by-wrongdoing exception

US v. Jackson:  After a jury trial, Antwan Jackson received convictions for the murder of Johnell Greene, as well as various firearms and drug offenses related to his role in a drug distribution conspiracy. In March 2006, Mr. Greene had interfered with Jackson’s drug activities, by robbing an associate of Jackson’s, Garian Washington, of drugs and money. Mr. Greene managed to escape one shooting attempt by Mr. Washington, after which attempt, Mr. Greene cooperated with police while he was incarcerated on unrelated charges, implicating Washington and Jackson in his attempted shooting. Shortly after his release from jail, Mr. Greene was shot multiple times and died after an attack by a masked assailant. Jackson purportedly made statements to the effect that he believed Mr. Greene had "deserved" to be killed.

Approximately one year later, a grand jury indicted Jackson and three other individuals for their participation in a separate crack cocaine operation. Jackson pleaded guilty to these offenses, and received an 87-month sentence. While imprisoned for these offenses, Jackson received an indictment for Mr. Greene’s murder, some prior drug activity, and for persuading a former associate to provide Jackson with a false alibi to law enforcement during an investigation of Mr. Greene’s death.

Before Jackson’s trial, the government moved to admit Mr. Greene’s written statements to police which implicated Jackson. The government argued that Jackson had waived his right to confront Mr. Greene’s out-of-court statements by killing him, "at least in part," to prevent him from testifying against Jackson. In response, Jackson argued that his intent to prevent Mr. Greene from testifying must be unqualified in order to trigger the forfeiture-by-wrongdoing exception to the Confrontation Clause, and thus permit the admission of Mr. Greene’s statements to police at Jackson’s trial. The district court disagreed, admitted the statements, and a jury found Jackson guilty on all counts.

On appeal to the Fourth Circuit, Jackson contended that the forfeiture-by-wrongdoing exception (a common law doctrine which permits the admission of testimonial statements where the defendant had acted to prevent the witness’s ability to testify) required that a defendant make a witness unavailable with the SOLE motivation of preventing the witness from testifying. The Fourth Circuit disagreed, and declined to "provide criminal defendants with an opportunity to avoid the exception by adducing some additional motive for their misconduct." As long as the defendant intended, according to the Fourth Circuit’s holding, to prevent a witness from testifying, the exception will apply even if the defendant had other motivations for harming a witness.