Whether a defendant forfeited the right to object to prior statements made by the alleged victim of a crime, where he married her in order to allow her to claim the marital privilege against testifying.

The alleged victim, the defendant’s then-girlfriend, told her best friend and her sister that the defendant attempted to strangle her, and, while brandishing a knife, threatened to kill her or himself. The police began an investigation at the sister’s request. The alleged victim and the defendant were married less than one month later, without telling her family and apparently without prior plans to marry. The alleged victim later told both her best friend and sister that she and the defendant married so that she could avoid having to testify against him.

The judge granted the Commonwealth’s motion to admit the alleged victim’s statements to her sister and her best friend, pursuant to the doctrine of forfeiture by wrongdoing. The alleged victim did not testify at the hearing, possibly out of concern that the testimony itself would waive the privilege. However, the defendant submitted an affidavit from the alleged victim denying that she married the defendant to avoid testifying against him. 

A jury convicted the defendant largely on the basis of the alleged victim’s out-of-court statements. The SJC transferred the defendant’s appeal sua sponte.

The issue is whether the defendant’s marriage constituted “wrongdoing” forfeiting his right to object to hearsay statements by the alleged victim.

“[A] defendant forfeits, by virtue of wrongdoing, the right to object to the admission of an unavailable witness’s out-of-court statements on both confrontation and hearsay grounds on findings that (1) the 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 procure the witness’s unavailability. A defendant’s involvement in procuring a witness’s unavailability need not consist of a criminal act, and may include a defendant’s collusion with a witness to ensure that the witness will not be heard at trial.” Commonwealth v. Edwards, 444 Mass. 526, 540 (2005).

The defendant argues that there is insufficient evidence that he colluded with the alleged victim to procure her unavailability; that portions of Edwards could be read not to require intent on the part of the defendant, which would violate Federal constitutional law under the Confrontation Clause; that Edwards errs in requiring only a preponderance of the evidence; and that application of Edwards to the marital privilege unconstitutionally interferes with the right to marry.

On the limited record available, this case seems to fall firmly into the Edwards definition of forfeiture by wrongdoing. Nor do the defendant’s constitutional challenges to Edwards — which is recent and carefully reasoned — seem persuasive. The Court is therefore likely to find that the forfeiture by wrongdoing doctrine applies to the marital privilege (but, hopefully, to caution against too eager explorations of a defendant’s decision to marry).

One outstanding question is whether the proposed witness may testify about his or her good faith decision to marry, without waiving the privilege. Although the parties do not substantially brief the issue, as a matter of policy judges should have this testimony available to them in ruling on forfeiture by wrongdoing, and it would behoove the Court to provide a definitive answer.