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Forfeiture by wrongdoing and temporal limits on searches

Sometimes when doing the Case Update I come across decisions which require, as they say in the law biz, "more extended treatment."  Come to think of it, they probably say that in the plastic surgery biz, too.  Anyway, a little bit more on some recent decisions:

Confrontation and forfeiture.  Back in January, I mentioned a case, Giles v. California, that the US Supreme Court had accepted cert on, involving whether a defendant forfeited his right to object to statements that might be considered testimonial under Crawford v. Washington by killing the person who made the statement.  As the 9th District indicated a few weeks back in State v. McCarley, there's also an evidentiary rule on this:  under 804(B)(6), a statement is admissible if the declarant is unavailable due to wrongdoing of a the party against whom the statement is offered. 

There's some caveats:  the wrongdoing had to be for the purpose of preventing the witness from testifying, and the opposing side has to give advance notice of their intent to introduce the witness' statement under this provision.  And, as the McCarley court notes, the provision isn't applicable in a homicide case.  Why?  Go back to the part about the wrongdoing having to be for the purpose of preventing the witness from testifying; as the 9th District sees it (and a Comment note to the rule backs them up), the rule doesn't apply because no one kills somebody to prevent them from testifying at their homicide trial for killing that person.  (The 9th still upheld the conviction, on harmless error grounds.)

That gets a little goofy, and when the Supreme Court comes down with its decision in Giles, I'll get into more detail on it.  It's very likely that the forfeiture doctrine under the Crawford analysis will be more liberal than under the rule, especially in homicide cases:  in fact, Giles was a case in which the girlfriend's statements were admitted against him because he'd killed her.

Search warrants and time.  In the 1st District's decision last week in State v. Davis, we had the rare situation of a trial court throwing out a search warrant.  In this case, the affidavit had alleged that the police had gone to a particular apartment, had observed cocaine in the apartment when the door was opened, and had "frozen" the scene in order to obtain the warrant.  The judge tossed it, finding that the affidavit didn't indicate when the scene had been frozen.

That's of some relevance.  Staleness of information is one means of combating a warrant.  You can't get a warrant by claiming that an informant told you that the defendant had drugs on his property a few months back, because the relevant question for a warrant is whether there are drugs on the property now.  The 1st District, though, reversed the grant of the suppression motion, emphasizing the great deference to be accorded the magistrate's determination of probable cause, and correctly holding that the judge should have inferred that the scene was frozen immediately prior to the police coming to get the warrant.

The temporal requirement of search warrants has another aspect:  Criminal Rule 41(C) requires, among other things, that search warrants be executed within three days.  If you're trying to get a warrant tossed on that basis, though, good luck:  the courts have consistently held that a "technical" violation of 41(C) doesn't require suppression of the evidence unless a "fundamental and prejudicial constitutional violation" has occurred.  In short, unless the police delay executing the warrant to the point where you might make a valid claim that the information they used to obtain it has become stale, you're out of luck.

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