July 30, 2018 – The state appeals court has asked the Wisconsin Supreme Court to review a case involving the “forfeiture by wrongdoing” doctrine and whether out-of-court statements by a homicide victim can be used against the accused killer.
Joseph Reinwand was charged with first-degree murder. He was accused of killing the Dale Meister, the father of Reinwand’s granddaughter. At the time of his death, Meister was in a child custody dispute with Reinwand’s daughter, Jolynn Reinwand.
After a mediation and possible custody agreement, Jolynn told Meister she was not happy with the outcome and would continue to deny child placement with Meister, suggesting that he child custody litigation would continue between Meister and Jolynn.
After Meister was killed, the state moved to introduce evidence of statements that Meister had made, including statements that Reinwand threatened to kill Meister
Meister sought to keep those statements out evidence based on the Sixth Amendment’s Confrontation Clause, which prohibits out-of-court statements to be used against an accused individual unless the declarant appears at trial for cross examination.
But the circuit court determined that Meister’s statements could come in because there was enough evidence that Reinwand killed Meister to stop the custody battle.
Normally, the forfeiture by wrongdoing doctrine applies when a defendant’s wrongdoing is intended to prevent a witness from testifying in a proceeding against the defendant.
Thus, the appeals court asked the Wisconsin Supreme Court, in a certification, to decide whether the forfeiture by wrongdoing doctrine applies when the defendant kills a declarant “to prevent him or her from testifying at a separate proceeding.”
“An additional and closely related question we certify is whether preventing the declarant from testifying must be the defendant’s primary purpose for the wrongful act that prevented the declarant from testifying in that separate proceeding,” states the certification, noting these questions present “issues of first impression” in Wisconsin.
The appeals court noted that in Giles v. California, 554 U.S. 353 (2008), the U.S. Supreme Court held that the forfeiture by wrongdoing doctrine may apply if the state shows “that the defendant intended to prevent a witness from testifying.”
“Giles is notable because, prior to that decision, statements of a defendant’s homicide victim, implicating the defendant in the homicide, were often admitted under the forfeiture by wrongdoing doctrine,” the appeals court noted.
“The issue in the present case is the intent requirement. The State argues that the intent requirement does not include a requirement that the defendant intended to prevent the declarant from testifying against the defendant.”
Reinwand argued that even if the doctrine applies to a separate proceeding, he could not intend to silence Meister from testifying at a child custody hearing because, at the time of the murder, he had no idea whether additional hearings were scheduled.
“We are not aware of any state or federal case addressing the questions we now certify that has been issued after Giles,” the certification states.
“Thus, we believe that the answers to the questions we now certify is of significant importance and that Wisconsin courts are in need of guidance from the supreme court.”