Forfeiture by Wrongdoing in N.J. Criminal Courts

On April 2, 2009, the N.J. Supreme Court moved toward adoption of a "forfeiture by wrongdoing" exception to the hearsay rule.  In State v. Byrd, the Court indicated that the time had come for N.J. to adopt the rule that a defendant forfeits the right to confront a witness's out-of-court statement implicating him when he causes that witness's "unavailability" at trial.  In other words:  if you scare a witness into not testifying, then the earlier statement can be used against you anyway.  The Court sent a proposed rule to the legislature for its adoption.  Because there is no such rule now, Byrd was entitled to a new trial.  What will be interesting is not whether such a rule will be adopted, but rather how such a rule will be implemented.  Left unsaid is how trial courts will determine whether there has been such coercion or intimidation, or whether such misconduct has been proven to arise from the defendant's actions.   Even assuming such a hurdle is met, is the very evidence of coercion admissible as well?  There are significant reasons why the right of confrontation is fundamental to our criminal justice system.  Only time will tell whether "forfeiture by wrongdoing" is a workable doctrine in New Jersey.