A six-Justice majority of the Washington Supreme Court ruled in State v. Dobbs (No. 87472-7) that there was sufficient evidence that the defendant had forfeited his Sixth Amendment right to confront his accuser by causing her (through violence and threats) to protect herself by refusing to testify at trial. Three Justices dissented, largely because they viewed the evidence differently and did not see clear, convincing, and cogent evidence (as required to establish forfeiture) that the defendant’s conduct caused the absence of the witness at trial.
Background:
The jury in Dobbs found Dobbs guilty of numerous crimes of domestic violence against C.R., including stalking, felony harassment, intimidating a witness, and drive-by shooting. The question presented on appeal was a narrow one: whether the trial court proceedings violated Dobbs’ Sixth Amendment rights because C.R. did not appear as a witness at trial.
Analysis: The applicable legal standards in this situation are clear and do not appear to be controversial. First, under the “Forfeiture Rule” in Washington, a defendant forfeits the right to confront witnesses against him or her if the defendant intentionally causes the absence of the witness at trial. Second, for the forfeiture rule to apply, there must be clear, cogent, and convincing evidence showing that it is highly probable that the defendant’s conduct caused the absence of the witness at trial.
Addressing this narrow issue, the six-Justice majority found sufficient evidence that Dobbs caused C.R.’s absence at trial. That evidence included a drive-by shooting at C.R.’s home, warnings that she would “get it” for calling the police and “regret it” if she pressed charges, and several other intimidating phone calls and threats. Based on that record evidence, the majority affirmed the trial court’s ruling that there was clear, cogent, and convincing evidence that Dobbs was the cause of C.R.’s absence at trial and had thereby forfeited his right to confront her.
Dissent: Justice Wiggins wrote a dissent, which Justice Gordon-McCloud and Chief Justice Madsen joined. The dissenting justices did not take issue with the applicable legal principles; they simply viewed the evidence differently. The dissent noted in that regard that (a) while Dobbs warned C.R. not to call the police, she did so anyway, (b) while Dobbs fired several shots into C.R.’s house, she again called the police, and (c) while Dobbs left a voicemail message threatening C.R. if she proceeded with criminal charges, she played that message for the police. Significantly, the dissent also emphasized that there was no other evidence of threats against C.R. for the two months, after which she failed to attend the trial. On this record, the dissent did not find clear, cogent, and convincing proof that Dobbs’ actions caused C.R.’s absence at trial.
Commentary: It is not surprising that this case garnered both a majority and a dissent, as the record provides support for both the majority analysis and the dissent. To a very significant degree, the issue turns on how best to balance the Sixth Amendment right to confrontation, on the one hand, and the importance of allowing victims of domestic violence to protect themselves by refusing to testify, on the other. That is plainly an issue on which reasonable jurists can (and did) disagree.