Last June, the United States Supreme Court determined that Crawford v. Washington, 541 U.S. 36 (2004) strictly limits prosecutors’ ability to present to the jury a homicide victim’s testimonial hearsay, even though the victim could have testified at trial had his or her killing not been procured. Giles v. California, ___ U.S. ___, 128 S. Ct. 2678 (June 25, 2008).

Two weeks ago, the D.C. Court of Appeals underlined that, under Giles , a criminal defendant only forfeits his or her Sixth Amendment confrontation rights if the defendant procured the witness’s unavailability for the purpose of preventing the witness from testifying. Roberson v. U.S., ___ A.2d ___ (D.C. Dec. 18, 2008). In Roberson, although the D.C. Court of Appeals called it a close call, the appellate court determined that the trial court had not abused its discretion by finding by a preponderance of the evidence that defendant Roberson had arranged for someone to kill Mr. Lee to prevent Mr. Lee from giving eyewitness testimony to Roberson’s presence during the shooting death of Donnell Simms. Consequently, the Court of Appeals left undisturbed the trial court’s determination that Roberson had waived his right to confront Lee, due to forfeiture of that right by wrongdoing. As a result, the prosecutor was permitted to present Mr. Lee’s testimony to the grand jury and information he provided the police.

Due to Roberson’s trial lawyer’s failure to raise a hearsay objection to the following testimony considered outside the jury’s presence, Roberson declines to address whether Crawford prohibits a trial court’s consideration of testimonial hearsay in determining whether forfeiture by wrongdoing had been committed by the defendant. Roberson’s trial lawyer had no apparent disadvantage to raising such an objection, because no jury was present to hold such objections against Roberson. Hopefully criminal defense lawyers will always raise timely objections when faced with similar testimonial hearsay presented outside the jury’s presence. Jon Katz.