Colin Miller, law professor at University of South Carolina School of Law and author of the highly informative EvidenceProf blog (which is the one lawprof blog that should be on everyone’s feed reader) has been blogging up a storm about the Drew Peterson verdict – specifically the role that the forfeiture by wrongdoing doctrine played in that conviction.

He started with this post on why any appeal in the Peterson case wouldn’t be based on “Drew’s Law”, then followed that up with these separate blog posts discussing the application of the forfeiture by wrongdoing doctrine and a discussion of the “transferred intent” theory of forfeiture which could be implied from Giles v. California. All of that has culminated in him writing this new essay [here's the PDF] which gathers his thoughts on the subject and concludes that Giles does indeed endorse (and must endorse) a transferred intent theory.

The problem with the transferred intent theory, as I mention in my post on the subject, is that it permits the introduction of a decedent’s statement in a murder trial for the murder of that very decedent. So even if the defendant made the witness unavailable to testify in another proceeding, the untested hearsay statements of that witness are used to prove that the defendant killed him/her. Indeed, many commentators and courts have reached this conclusion, arguing that it would make no sense in the context of the forfeiture doctrine to let those statements come in at a different trial, which was not even in existence at the time of making the the witness “unavailable”:

For example, the defendant robs the witness. The witness is preparing to testify at the robbery trial and the defendant kills that witness to prevent him from testifying.  Any out-of-court statements would then be admissible at both the robbery trial and the subsequent murder trial. If the transferred-intent theory is invalid, then the statement would be admissible only at the robbery trial and not the murder trial.

Colin Miller disagrees and relies on a footnote in Justice Scalia’s opinion in Giles:

Accordingly, the concurrence recognizes that forfeiture can apply when, for instance, a defendant kills a prospective witness at his trial for some crime such as robbery and is then  prosecuted for the witness’s murder.

The surprising thing is that Justice Scalia’s opinion does the same thing, albeit in a footnote. In that footnote, Scalia begins by criticizing the dissent for allowing forfeiture without a showing of intent because it allows for a trial-within-a-trial in which the judge finds that the defendant committed the murder charged before the jury renders its verdict.

Scalia is uncomfortable with this construction and notes that the only analogous rule that allows a judge to predetermine guilt is the co-conspirator admission rule. Under this rule, a judge, often at a conspiracy trial, decides whether a declarant made statements during the course and in furtherance of a conspiracy with the defendant.

Scalia writes this rule off as “quite unusual” but then acknowledges that such a judicial predetermination of guilt can occur under the Court’s construction of forfeiture: We do not say, of  course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony.

In other words, notwithstanding his statements  during oral argument, Justice Scalia adopts the transferred intent doctrine of forfeiture by wrongdoing. Moreover, this adoption makes sense given Scalia’s recognition that both the co- conspirator admission rule and, by implication, the doctrine of forfeiture by wrongdoing, are “quite unusual” in allowing judicial pre-determinations of guilt.

I’m not entirely convinced that that footnote represents an endorsement by Scalia of the transferred intent theory of forfeiture, but it sure as hell makes one pause and think about it. I think this is a question that ultimately will have to be answered by Scalia and all of SCOTUS to clear up the various conflicts in different jurisdictions.

But I really recommend reading the entire essay, because it plainly and clearly explains Giles and the doctrine and it’s something that we CDLs will have to deal with, sooner or later.