NMSC Applies Forfeiture Exception to Affirm Life Sentence


The New Mexico Supreme Court last week, in a direct criminal appeal, affirmed a life sentence for murder in State v. Farrington. At issue was whether the district court had correctly applied the “forfeiture exception” to admit statements that would otherwise have been hearsay. Applying the same test used in Confrontation Clause cases, the Court held that the evidence was properly admitted and affirmed.


The Defendant was a former police officer with a history of domestic abuse against Victim, his wife. According to the opinion, he limited his wife’s ability to speak with people or travel, and was known to dry-fire his service weapon her head. He had told Victim not to bother reporting him since the police would never believe her over him. He had also told her that as a police officer, he knew how to kill her without getting caught. Victim had described many of these incidents to her friends and family.

Defendant and Victim were going through a difficult divorce when she was found dead. The State brought an open count of murder against him. At trial, it sought to introduce statements from Victim’s friends and family about Defendant’s threats and acts of domestic violence. Defendant objected that the evidence was hearsay. The district court allowed it, and Defendant was convicted of first degree murder.

History of the Forfeiture Exception

Because Defendant had been sentenced to life in prison, his appeal went directly to the Supreme Court. The main issue on appeal was whether the district court had correctly applied the “forfeiture exception” to allow witnesses to testify as to what Victim had told them about Defendant.

The forfeiture exception has historically served as an exception to the right to confront witnesses. In essence, it states that a defendant cannot complain about the inability to confront a witness whose absence is a result of the defendant’s own wrongful conduct. But many states, as well as the federal government, have also included it as an exception to the rule of evidence against hearsay. New Mexico is one such state.

Defendant had briefed the issue on both the confrontation clause and the hearsay exception. However, at oral argument, his attorney conceded that the confrontation clause did not apply. As a result, the opinion dealt only with the hearsay exception.

New Mexico has previously applied the forfeiture rule in the context of the confrontation clause. However, it was not adopted as a rule of evidence until 2012, and no court had yet addressed it. Looking to federal law, however, the Court held that the same test should apply for both the constitutional and evidentiary issues.

The New Mexico test is comprised of four factors: that “(1) the declarant was expected to be a witness; (2) the declarant became unavailable; (3) the defendant’s misconduct caused the unavailability of the declarant; and (4) the defendant intended by his misconduct to prevent the declarant from testifying.” Perhaps the most difficult one, and the only one at issue in this case, is the fourth factor. Obviously, a person who kills a victim has committed misconduct that caused the victim to be unavailable as a witness. But the forfeiture rule only applies if the murderer intended that the killing would prevent the testimony. This requirement is made somewhat easier to meet by the fact that it need not be the defendant’s sole intent.

The District Court Correctly Applied the Exception

Having determined the correct rule to apply, the Court had little difficulty concluding that the district court had properly admitted the testimony. Whether the forfeiture exception applied was a preliminary question that the district court could decide if it was satisfied that the preponderance of the evidence supported it.

The district court had helpfully described exactly what evidence it believed met that burden in its order. The Supreme Court agreed, summarizing five points it found dispositive: (1) Defendant physically and mentally abused Victim; (2) Defendant isolated Victim; (3) custody of the children was a point of significant hostility in the divorce proceeding; (4) the divorce was contentious; and (5) Defendant exploited his position as a police officer to keep Victim from reporting him to law enforcement. In the Court’s view, this facts in this case were the strongest it had seen in support of applying the exception.

Finding no other errors in the district court decision, the Court affirmed Defendant’s life sentence.

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