Even when a prior statement is unequivocally testimonial in nature, it might still be used to support an evidence-based prosecution if the unavailability of the witness is due to the defendant's intimidating behavior. Under such circumstances, if the People establish that the defendant intentionally engaged in wrongdoing in order to procure the witness' unavailability, the defendant has forfeited the right to confrontation. Davis at 126 S. Ct. 2281; see also, State v. Wright, 726 N.W.2d 424 (2007).
The Supreme Court addressed the issue of forfeiture by wrongdoing in the context of domestic violence cases at the conclusion of its opinion in Davis:
"This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial…. [W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce…. While defendants have no duty to assist the state in proving their guilt, they do have a duty to refrain from acting in ways that destroy the integrity of the criminal-trial-system. We reiterate what we said in Crawford: that 'the rule of forfeiture by wrongdoing … extinguishes confrontation claims on essentially equitable grounds.' That is, one who obtains the absence of a witness by wrongdoing forfeits the right to confrontation."
— 126 S.Ct. at 2279-2280.
What kind of conduct should be held to constitute forfeiture by wrongdoing? As West Virginia's highest court observed in State v. Mechling:
"[T]he most obvious situation is where the accused directly confronts the victim after being charged, and intentionally coerces the victim into changing his or her statement, or simply not testifying. Another likely situation where an accused may trigger forfeiture is when, after being charged, the accused engages in further abuse or intimidation of the victim which is not explicitly intended to alter, but has the effect of altering the victim's testimony."
— 219 W. Va. 366 (2006) at 381.
