State v. Poole

2010 UT 25
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20070696
Plaintiff and Appellee,
v.
F I l E D
Christian E. Poole,
Defendant and Appellant. April 30, 2010
---
First District, Logan
The Honorable Gordon J. Low
No. 061100125
Attorneys: Mark L. Shurtleff, Att’y Gen., Karen A. Klucznik,
Asst. Att’y Gen., for plaintiff
David M. Perry, Logan, for defendant
---
DURHAM, Chief Justice:
¶1 Christian Poole entered conditional guilty pleas to
three counts of rape of a child and is currently serving a six-
year-to-life prison sentence. Because his pleas were
conditional, Mr. Poole was permitted to appeal the district
court’s finding that he forfeited the right to confront the
victim of his sexual assault through wrongdoing. The legal
proposition of forfeiture by wrongdoing--that is, a defendant’s
wrongful acts may cause the defendant to forfeit the
constitutional right to confrontation--is an issue of first
impression for this court. We expressly acknowledge the
doctrine’s existence under the Utah Constitution and provide
guidance for its application in criminal trials.
¶2 While we recognize the doctrine of forfeiture by
wrongdoing, the procedural posture of Mr. Poole’s criminal
prosecution prevents us from determining whether he has forfeited
his right to confrontation at this time. The district court’s
decision on this issue was premature; neither this court nor the
district court is yet in a position to know whether the victim of
Mr. Poole’s alleged criminal acts will be unavailable at trial
until the time of that trial. Given this holding, Mr. Poole

No. 20070696 2
should be allowed to withdraw his guilty plea under Rule 11(j) of
the Utah Rules of Criminal Procedure and proceed to trial if he
so wishes, but with the risk that the witness will be unavailable
and the district court will have to decide the forfeiture
question.
BACKGROUND
¶3 We provide an abbreviated recitation of the facts
because we have declined to address the full merits of Mr.
Poole’s forfeiture appeal. That is not to say that the
allegations against Mr. Poole are trivial. Indeed, prosecutors
alleged that Mr. Poole began sexually abusing his daughter, C.P.,
when the girl was five or six years old. The sexual abuse
continued throughout C.P.’s childhood and did not surface until
she was 16 years old. An anonymous tip led the state’s Division
of Child and Family Services to launch an investigation into the
abuse in late 2005. During a recorded interview in February
2006, C.P. confirmed and provided details of the sexual abuse to
a DCFS social worker and a Cache County Sheriff’s detective.
¶4 This interview formed the basis for the decision to
arrest Mr. Poole and charge him with nine counts of rape of a
child, seven counts of rape, and two counts of forcible sodomy.
Moreover, C.P.’s statements in this interview are at the heart of
this appeal. The state has assumed that C.P. would be
unavailable at Mr. Poole’s criminal trial and has attempted to
have the statement C.P. made to investigators admitted against
Mr. Poole in lieu of her live testimony. The basis for this
assumption began earlier in the prosecution. Within days of Mr.
Poole’s arrest, Mrs. Poole moved the family to Idaho and sought
independent legal representation for C.P. Mrs. Poole’s actions
caused the prosecutors to fear that C.P. would not appear at Mr.
Poole’s trial. As a result, the district court allowed
prosecutors to depose C.P. in order to preserve testimony from a
potentially unavailable witness. C.P. appeared at the deposition
but refused to answer the prosecution’s questions. Indeed,
C.P.’s only response to the state’s questioning was to nod in
affirmance that she was unwilling to testify. Mr. Poole’s
defense attorney declined to ask C.P. any questions on the basis
that the state had failed to elicit any testimony from C.P. on
direct examination.
¶5 Approximately two months later, prosecutors again
attempted to take C.P.’s testimony. At a pretrial motion hearing
on the subject of whether Mr. Poole forfeited his right to
confront C.P. through his wrongful conduct that rendered her
unavailable at trial, C.P. was again called as a witness and
placed under oath. C.P. stated her name and address and then

3 No. 20070696
refused to answer any other questions posed by the prosecution.
Once again, Mr. Poole’s defense attorney declined to question
C.P.
¶6 The state then asked the district court to find Mr.
Poole had forfeited his right to confront C.P. through wrongful
acts, thereby allowing the admission of C.P.’s out-of-court
statements at trial. In its order, the district court recognized
the doctrine of forfeiture by wrongdoing. With no Utah precedent
on the topic, the district court was also required to set the
scope of its forfeiture analysis. Ultimately, the district court
determined that the state has the burden of proving forfeiture by
wrongdoing by a preponderance of the evidence, and with the
exception of privileges, the Utah Rules of Evidence do not apply
to the decision on forfeiture by wrongdoing because the district
court’s decision is a preliminary issue of fact. Applying these
standards to the allegations of wrongdoing by Mr. Poole, the
district court found Mr. Poole had forfeited his right to
confront C.P. through wrongful conduct. Specifically, the
district court found Mr. Poole “worked in conjunction with his
wife” to “pressure,” “manipulate[],” and “threaten[]” C.P. into
refusing to testify. “All of this can be laid at the defendant’s
feet. He caused the result that C.P. is now refusing to testify,
and he should not benefit from this manipulation of a witness.”
¶7 On the basis that C.P.’s out-of-court statements were
admissible at his trial, Mr. Poole entered into a plea agreement
with the state. In exchange for Mr. Poole’s guilty plea to three
counts of rape of a child, the state agreed to dismiss the other
fifteen felony charges. Prosecutors also agreed that they would
recommend Mr. Poole serve a six-year-to-life sentence as opposed
to the maximum of 15-years-to-life available under the charges.
Mr. Poole’s pleas were conditioned on the right to appeal the
district court’s decision on forfeiture by wrongdoing that
authorized the state to present C.P.’s out-of-court statements at
trial. Mr. Poole has properly appealed that decision. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(i)
(2008).
STANDARD OF REVIEW
¶8 Matters of constitutional interpretation are questions
of law that we review for correctness, and we provide no
deference to the district court’s legal conclusions. State v.
Ford, 2008 UT 66, ¶ 6, 199 P.3d 892; Grand County v. Emery
County, 2002 UT 57, ¶ 6, 52 P.3d 1148. The district court’s
decision to admit testimony that may implicate the confrontation
clause is also a question of law reviewed for correctness. State
v. Calliham, 2002 UT 87, ¶ 31, 57 P.3d 220.

1 In addition to arguing that Mr. Poole forfeited his right
to confrontation, the state has argued that Mr. Poole waived his
right to confront C.P. by failing to cross examine her when given
the opportunity. Moreover, the state suggests that the district
court admitted C.P.’s statements on the basis of waiver as well
as forfeiture. The state’s characterization of the district
court’s ruling is inaccurate. The district court did warn Mr.
Poole that a failure to question C.P. during a motion hearing may
result in the waiver of his right to confront her later. But the
district court’s order is devoid of any analysis of waiver and is
focused entirely on the topic of forfeiture by wrongdoing.
Additionally, we do not believe the facts of this case
support a finding that Mr. Poole waived the right to confront
C.P. Under the doctrine of waiver, a criminal defendant may
waive the right to confrontation “only where the declarant is
unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Crawford v. Washington, 541 U.S.
36, 59 (2004). Given our analysis in Part II, we cannot hold
that C.P. is unavailable until the time of Mr. Poole’s trial.
Moreover, we do not believe the facts of this case support a
finding that Mr. Poole had a prior opportunity to cross-examine
C.P. See United States v. Owens, 484 U.S. 554, 560 (1988)
(holding that the confrontation clause can only be satisfied when
the defendant is allowed to employ the “weapons available to
impugn the witness’[s] statement”); Douglas v. Alabama, 380 U.S.
415, 420 (1965) (holding that “effective confrontation of [a
witness] was possible only if [that witness] affirmed the
statement as his”); Yanez v. Minnesota, 562 F.3d 958, 963 (8th
Cir. 2009) (holding that the confrontation clause was satisfied
despite the witness’s lack of memory, because the witness was
willing to testify, providing the defendant the “opportunity to
expose potential bias or ulterior motives”); Mayes v. Sowders,
621 F.2d 850, 856 (6th Cir. 1980) (“A witness is not available
for full and effective cross-examination when he or she refuses
to testify.”); State v. Villarreal, 889 P.2d 419, 425 (Utah 1995)
(“Because [the co-defendant] did not affirm or deny the
prosecution’s declarations attributed to [him, the defendant] had
(continued...)
No. 20070696 4
ANALYSIS
I. FORFEITURE BY WRONGDOING IS RECOGNIZED UNDER
THE UTAH CONSTITUTION
¶9 The issue of whether Utah law recognizes the doctrine
of forfeiture by wrongdoing has never been squarely addressed by
this court, but the district court embraced it; we agree with the
district court’s reasoning.1 Utah law recognizes that a

1 (...continued)
no effective opportunity to cross-examine him on facts that were
central to establishing [the defendant’s] guilt.”); State v.
Nelson, 725 P.2d 1353, 1357 (Utah 1986) (finding that the
defendant had an opportunity to cross-examine where the victim
took the stand at trial and affirmed that she spoke with
investigators about her sexual assault but did not provide
details of the attack).
5 No. 20070696
defendant may forgo the right to confrontation through conduct
designed to make a witness unavailable at trial so long as the
state can prove the defendant acted with the intent to accomplish
that end.
¶10 Before turning to the scope of the forfeiture-by-
wrongdoing doctrine under state law, it is important to properly
frame the question presented here. The constitutions of both the
United States and Utah guarantee criminal defendants the right
“to be confronted with the witnesses against him.” U.S. Const.
amend. VI; see also Utah Const. art. I, § 12 (using the word “by”
instead of “with”). Forfeiture by wrongdoing acts to eliminate
these constitutionally guaranteed protections because of the
defendant’s affirmative acts. See Crawford v. Washington, 541
U.S. 36, 62 (2004) (“[T]he rule of forfeiture by wrongdoing . . .
extinguishes confrontation claims on essentially equitable
grounds.”). Forfeiture by wrongdoing can be viewed as a
limitation on the protection guaranteed by the constitution
because the right to confront one’s accuser no longer applies
when the defendant has acted to cause a witness to be
unavailable. The Supreme Court has unambiguously recognized the
doctrine under the Sixth Amendment. See Giles v. California, 128
S. Ct. 2678, 2682-83 (2008). Under the federal constitution, the
protections of the confrontation clause cease to apply to a
defendant who “(1) causes a potential witness’s unavailability
(2) by a wrongful act (3) undertaken with the intention of
preventing the potential witness from testifying.” United States
v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996); see also Doan v.
Carter, 548 F.3d 449, 458 (6th Cir. 2008).
¶11 Mr. Poole’s challenge to the district court’s decision
in this case, however, is based on both the U.S. and Utah
Constitutions. Mr. Poole has asked us to determine if article I,
section 12 of the Utah Constitution provides greater protections
to criminal defendants than its federal counterpart. The Utah
Constitution could provide more protection to criminal defendants
by limiting the influence the forfeiture-by-wrongdoing doctrine
has on the confrontation clause. See State v. DeBooy, 2000 UT
32, ¶ 12, 996 P.2d 546. Moreover, an analysis under the state
constitution is in order given this court’s endorsement of the

No. 20070696 6
primacy model. See State v. Tiedemann, 2007 UT 49, ¶ 33, 162
P.3d 1106 (explaining and endorsing the primacy model, which
dictates “that state laws be interpreted independently and prior
to consideration of federal questions”).
¶12 In evaluating the Utah Constitution, we have rejected a
presumption that “federal construction of similar language is
correct.” Id. ¶ 37.
In theory, a claimant could rely on nothing
more than plain language to make an argument
for a construction of a Utah provision that
would be different from the interpretation
the federal courts have given similar
language. Independent analysis must begin
with the constitutional text and rely on
whatever assistance legitimate sources may
provide in the interpretative process.
Id.; see also Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 10,
140 P.3d 1235 (stating we look first to the “plain meaning” of
the constitution). Other legitimate sources that we may look to
include evidence of the framers’ intent, the common law,
particular traditions of our state, and decisions by our sister
states and federal counterparts. See Am. Bush, 2006 UT 40, ¶ 11
(discussing sources this court has examined to interpret the Utah
Constitution).
¶13 Utah’s confrontation clause states: “In criminal
prosecutions the accused shall have the right . . . to be
confronted by the witnesses against him.” Utah Const. art. I,
§ 12. The plain language of the clause does not preclude a
finding that a criminal defendant may forgo the right to
confrontation through misdeeds. Recognizing this fact, Mr. Poole
attempts to persuade this court that the common law of Utah has
previously rejected the forfeiture-by-wrongdoing doctrine because
no Utah court has cited to the U.S. Supreme Court decision in
Reynolds v. United States, 98 U.S. 145 (1878). Reynolds, decided
eighteen years before Utah became a state, is universally held as
the first instance in which the U.S. Supreme Court addressed the
forfeiture issue. See Giles, 128 S. Ct. at 2687; Commonwealth v.
Edwards, 830 N.E.2d 158, 165 (Mass. 2005). Reynolds involved a
bigamy prosecution arising from the Utah Territory in which an
alleged plural wife of the defendant could not be located in
anticipation of trial. 98 U.S. at 159-60. Mr. Poole argues that
the facts underlying Reynolds imply that the framers of the Utah
Constitution would not adopt a doctrine “finding its birth in
Reynolds.” Mr. Poole’s argument appears to be that because
Reynolds involved a prosecution on the basis of polygamy, and

2 The primary holding in Reynolds was derived from the free
exercise clause of the First Amendment. See State v. Holm, 2006
UT 31, ¶¶ 50-51, 137 P.3d 726.
7 No. 20070696
because Utah had a history of plural marriage, the residents of
the state who ratified the constitution would never have
supported any policy having its origins in Reynolds.
¶14 Mr. Poole’s argument misses the point of Reynolds.
Reynolds’ forfeiture holding was not authored as an indictment on
polygamy and the Utahns who practiced it.2 This holding stands
for--and continues to be cited for--the policy that a criminal
defendant who causes a witness’s absence “is in no condition to
assert that his constitutional rights have been violated” because
the constitution “does not guarantee an accused person against
the legitimate consequences of his own wrongful acts.” Id. at
158. It is similar to a “clean hands” policy, common in
equitable proceedings. The issue here is not about Utah’s
history and the practice of polygamy. The issue at the center of
this appeal, as well as in Reynolds, is whether a defendant can
benefit from wrongfully causing a witness’s absence at his
criminal trial. Nothing suggests the framers of the Utah
Constitution intended otherwise.
¶15 Bolstering this view, the state has supplied us with
evidence from the Utah constitutional convention that shows the
framers of the Utah Constitution drafted the confrontation clause
to mirror the protections of the federal constitution. The
framers debated this very clause and rejected language that was
not identical to the federal confrontation clause. Moreover, by
the time the framers of the Utah Constitution gathered, the
Supreme Court had already issued Reynolds, holding that the
confrontation clause could be forfeited through wrongful conduct
that renders a witness unavailable. That decision put Utah’s
founders on notice of the federal interpretation, and the
drafters of the state constitution could certainly have
incorporated greater protections had they desired. They debated
this issue and expressly declined to do so. In the context of
the decision in Reynolds, there is simply no indication that the
framers of the state constitution would have been inclined to
permit criminal defendants to render witnesses against them
unavailable without any negative consequence. Finally, it
appears that other states, when asked to adopt the doctrine of
forfeiture by wrongdoing, have universally recognized the
principle. See Edwards, 830 N.E.2d at 166-67.
¶16 Utah’s public policy is the same as that underlying the
federal interpretation and that of our sister states. The
Supreme Court has succinctly articulated this policy:

No. 20070696 8
[W]hen defendants seek to undermine the
judicial process by procuring or coercing
silence from witnesses and victims, the
[confrontation clause] does not require
courts to acquiesce. While defendants have
no duty to assist the [s]tate in proving
their guilt, they do have the duty to refrain
from acting in ways that destroy the
integrity of the criminal-trial system.
Davis v. Washington, 547 U.S. 813, 833 (2006) (emphasis in
original). To hold otherwise would provide criminal defendants
with a strong incentive to tamper with the witnesses against
them. See Vasquez v. People, 173 P.3d 1099, 1104 (Colo. 2007)
(“The forfeiture doctrine prevents defendants from profiting by
their own misconduct; a defendant who eliminates a witness would
otherwise be rewarded with the exclusion of that witness’s out-
of-court statements.”).
¶17 Given the plain language of the Utah confrontation
clause and the public policy at the time of the state’s founding,
Utah law, like its federal counterpart and that of a number of
sister states, recognizes the doctrine of forfeiture by
wrongdoing.
A. Under Utah Law, Criminal Defendants Forfeit Their
Right to Confront Their Accusers After Committing a
Wrongful Act that Renders the Witness Unavailable
When the Defendant Acted with the Intent of
Making the Witness Unavailable at Trial
¶18 Given that this is a question of first impression for
this court, an analysis of the forfeiture doctrine is incomplete
without defining the scope of forfeiture by wrongdoing under Utah
law. As a general matter, courts universally answer
affirmatively when asked whether a criminal defendant’s right to
confrontation is forfeited through the misconduct of the
defendant. See Edwards, 830 N.E.2d at 166-67; Fed. R. Evid. 804,
advisory committee’s note (1997 amendments). The universally
adopted rule has been that a defendant forgoes the right to
confront a witness who is unavailable and that unavailability is
based on a wrongful act of the defendant. See United States v.
Garcia-Meza, 403 F.3d 364, 370 (6th Cir. 2005); State v. Sanchez,
177 P.3d 444, 456 (Mont. 2008); Gonzalez v. State, 195 S.W.3d
114, 125-26 (Tex. Crim. App. 2006). A number of jurisdictions
have promulgated a rule that adds a mens rea element to the
forfeiture-by-wrongdoing test. See People v. Moreno, 160 P.3d
242, 245 (Colo. 2007) (surveying jurisdictions that allow

9 No. 20070696
forfeiture by wrongdoing only after a showing that the
defendant’s wrongful act was done with the intent to make the
witness unavailable); Edwards, 830 N.E.2d at 170 (holding that a
defendant must act with “intent to procure the witness’s
unavailability”).
¶19 Initially, the U.S. Supreme Court left the mens rea
issue to the states and circuit courts to resolve. In 2008, the
Court resolved the issue of the scope of the forfeiture by
wrongdoing by holding that the doctrine can only be applied after
a showing of intent on the part of the defendant. Giles, 128 S.
Ct. at 2683-84. Under the Sixth Amendment “the exception
applie[s] only when the defendant engaged in conduct designed to
prevent the witness from testifying.” Id. (emphasis in
original). Given the supremacy doctrine, our test for forfeiture
under state law must, at a minimum, provide protections for
individual liberties that are co-existent with the guarantees of
the U.S. Constitution.
¶20 Under federal law, the forfeiture test is articulated
through a three-element test that requires the state to show
(1) the witness is unavailable at trial, (2) the witness’s
unavailability was caused by a wrongful act of the defendant, and
(3) the defendant’s act was done with an intent to make the
witness unavailable. Houlihan, 92 F.3d at 1280; see Giles, 128
S.Ct. at 2682-83; Doan, 548 F.3d at 458. This test strikes an
appropriate balance between protecting the integrity of the
criminal process and dissuading defendants from tampering with
witnesses, and the right of the defendant to cross-examine
witnesses guaranteed by article I, section 12 of the Utah
Constitution.
¶21 We also provide the district court some direction in
applying the forfeiture doctrine. The U.S. Supreme Court has
expressly left such application questions open. Davis v.
Washington, 547 U.S. 813, 833 (2006) (“We take no position on the
standards necessary to demonstrate such forfeiture.”); see also
21A Am. Jur. 2d Criminal Law § 1095 (2008) (stating the Supreme
Court “has declined to take a position on the standards necessary
to demonstrate a forfeiture by wrongdoing”). The most
significant questions are: (1) what burden of proof must the
state meet to show a defendant has forfeited the right to
confrontation through misconduct; and (2) what type of evidence
may the district court consider in analyzing the defendant’s
wrongful conduct.
¶22 As to the burden of proof, in all criminal prosecutions
the state must prove the elements of a crime beyond a reasonable
doubt. In re Winship, 397 U.S. 358, 365 (1970); Utah Code Ann.

No. 20070696 10
§ 76-1-501(1) (2008). The same standard does not apply to
questions concerning the admissibility of evidence, however. See
State v. Brown, 948 P.2d 337, 341 (Utah 1997)(“Preliminary
questions concerning the admissibility of evidence should be
established by a preponderance of proof.”). The majority of the
courts addressing the forfeiture issue have applied a
preponderance of the evidence standard. See Davis, 547 U.S. at
833 (noting federal courts “have generally held the [g]overnment
to the preponderance-of-the-evidence standard” in evaluating
forfeiture); Vasquez, 173 P.3d at 1105 (noting that state and
federal courts “have almost universally adopted a preponderance
standard”); Edwards, 830 N.E.2d at 172 (noting the same). A
minority of jurisdictions that have addressed the issue have held
the preponderance-of-the-evidence standard is insufficient to
protect the defendant’s right to confrontation. These courts
instead require the prosecution to demonstrate forfeiture by
clear and convincing evidence. See United States v. Thevis, 665
F.2d 616, 631 (Former 5th Cir. 1982)(holding that the clear-and-
convincing standard must be applied to forfeiture by wrongdoing
“because confrontation rights are so integral to the accuracy of
the fact-finding process”), superseded by Fed. R. Evid. 804(b)(6)
as recognized in United States v. Zlatogur, 271 F.3d 1025 (11th
Cir. 2001); State v. Mason, 162 P.3d 396, 404 (Wash. 2007)
(holding the substantial deprivation of constitutional
protections demands that the prosecution to prove forfeiture by
“clear, cogent, and convincing” evidence) abrogated on other
grounds by State v. Fallentine, 215 P.3d 945 (Wash. Ct. App.
2009); People v. Geraci, 649 N.E.2d 817, 821 (N.Y. 1995)(adopting
the “clear and convincing” evidence standard as it is “most
protective of the truth-seeking process”).
¶23 The argument in favor of imposing a more rigorous
standard of proof is founded on a theory that when constitutional
rights are at issue “the stakes are simply too high to be left to
a mere preponderance standard. . . . [T]he right of
confrontation should not be easily deemed forfeited by an
accused.” Mason, 162 P.3d at 404-05. This argument has some
force, particularly in light of this court’s history of careful
protection of constitutional rights. See Wasatch County v.
Okelberry, 2008 UT 10, ¶ 9, 179 P.3d 768 (finding private
property rights under the Utah and U.S. Constitutions require
clear and convincing evidence of abandonment); State v. Barzee,
2007 UT 95, ¶ 29, 177 P.3d 48 (requiring the state to prove the
four factors of a test to allow the forced medication of a
criminal defendant by clear and convincing evidence); State v.
Lafferty, 749 P.2d 1239, 1248 (Utah 1988) (stating the trial
court has the “‘serious and weighty responsibility’” of ensuring
a criminal defendant has waived his constitutionally guaranteed
right to assistance of counsel (quoting Westbrook v. Arizona, 384

11 No. 20070696
U.S. 150, 150 (1966))); Chess v. Smith, 617 P.2d 341, 344 (Utah
1980) (cautioning trial courts in their analysis of a defendant’s
waiver of “fundamental, clear-cut rights”). However, we have not
always applied heightened evidentiary standards simply because a
constitutional protection is at stake. See State v. Hansen, 2002
UT 125, ¶ 56, 63 P.3d 650 (requiring prosecutors to show a
criminal defendant voluntarily consented to a search, thereby
waiving the Fourth Amendment protection, by a preponderance of
the evidence). Bolstering the case for applying the lesser
burden on the question of forfeiture is that preliminary
evidentiary rulings in general are made on the basis of the
preponderance-of-the-evidence standard. Brown, 948 P.2d at 341;
see also State v. Tarrats, 2005 UT 50, ¶ 25, 122 P.3d 581
(requiring a defendant charged with rape who seeks to impeach his
accuser through testimony that she had previously falsely
reported a rape, to show the original allegation was false by a
preponderance of the evidence).
¶24 On balance, we believe this court should adopt the
majority view. Our general rule for evidentiary rulings is an
important factor. Moreover, the prosecution must establish all
three elements of the forfeiture test before the unavailable
witness’s out-of-court statements may be admitted. Two of these
elements--the wrongful conduct and the defendant’s subjective
intent in engaging in the conduct--are particularly difficult to
prove. An evidentiary hearing on this issue will be necessary in
most cases, and a higher burden on the state would often result
in an unnecessary mini-trial on forfeiture. Moreover, an
increase in the standard to clear and convincing evidence could
undermine the policy behind the forfeiture-by-wrongdoing doctrine
by making the prosecution’s burden so high that it can be met in
only the most egregious cases of witness tampering or
intimidation.
¶25 While preponderance of the evidence is the appropriate
standard, this should not mean that a defendant’s right to
confrontation is easily forfeited. This is a constitutional
guarantee and all Utah courts must recognize that this protection
should not be summarily disposed of. This is a weighty matter as
the defendant’s guilt or innocence may largely hinge on this
determination. That requires a case-specific and careful
analysis of the specific acts of the defendant.
¶26 Finally, we note that the district court may not
consider hearsay evidence in evaluating the admission of out-of-
court statements on the basis of forfeiture by wrongdoing.
Generally, the district court “is not bound by the rules of
evidence except those with respect to privileges” when
considering “[p]reliminary questions concerning . . . the

No. 20070696 12
admissibility of evidence.” Utah R. Evid. 104(a). This rule is
not absolute, and we may direct the district court to conduct its
analysis within the confines of the Utah Rules of Evidence. See
State v. Ruscetta, 742 P.2d 114, 117 (Utah Ct. App. 1987); State
v. Ordonez-Villanueva, 908 P.2d 333, 338 n.9 (Or. Ct. App.
1995)(“‘While the judge is not ‘bound’ by the Rules of Evidence,
it was probably expected that the judges would apply them in most
cases. The question then is not the existence of the power to
disregard the Rules, but rather when that power should be
exercised.’” (quoting Charles Alan Wright & Kenneth W. Graham,
Jr., 21A Federal Practice and Procedure, § 5055 at 274 (1st ed.
1977))); Baldree v. State, 248 S.W.3d 224, 233 (Tex. Ct. App.
2007)(“[T]he power to disregard the rules exists [when analyzing
the admissibility of evidence], but nothing in the language of
the rule compels the trial [court] to exercise that power.”).
This is one of those instances that demands that we disregard
104(a)’s general rule. The application of forfeiture by
wrongdoing acts to abrogate a significant constitutional
protection. We do not believe that it should be easily forfeited
and thus we require the district courts of this state to apply
the rules of evidence, including the rules controlling the
admission of hearsay evidence, when they consider whether a
criminal defendant has forfeited the right to confrontation.
¶27 Thus, under Utah law, the out-of-court statements of a
witness may be admitted at a criminal defendant’s trial when the
witness is unavailable at trial due to the wrongful acts of the
defendant, and the defendant’s acts were intended to render the
witness unavailable. The prosecution must demonstrate forfeiture
by a preponderance of the evidence, but may only prove the
allegations through evidence admissible under the Utah Rules of
Evidence.
II. C.P.’S AVAILABILITY TO TESTIFY AT MR. POOLE’S TRIAL
CANNOT BE DETERMINED UNTIL THE TIME OF TRIAL
¶28 To reiterate, defendants forfeit their right to
confront the witnesses against them only after the state has
shown (1) the witness is unavailable at trial, (2) the witness’s
unavailability was caused by the defendant’s wrongful acts, and
(3) the defendant’s wrongful acts were intended or designed to
make the witness unavailable. Generally, courts applying this
test will be required to analyze each element independently.
Given our ultimate holding that a decision on C.P.’s availability
at Mr. Poole’s trial was premature prior to the time of trial
itself, we do not need to analyze the latter two elements of the
test.

3 Some courts analyzing the confrontation clause have
identified the concept of “constitutional unavailability” based
on the Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56,
74 (1980). An analysis of availability under this legal concept
is not merely an inquiry of the witness’s physical whereabouts,
willingness to testify, or privilege. The court must also look
to the state’s effort to present the witness at trial. Id.
United States v. Tirado-Tirado, 563 F.3d 117, 123 (5th Cir.
2009). Indeed, a “‘witness is not ‘unavailable’ for purposes of
. . . the exception to the confrontation requirement unless the
prosecutorial authorities have made a good-faith effort to obtain
his presence at trial.’” Roberts, 448 U.S. at 74 (quoting Barber
v. Page, 390 U.S. 719, 724-25 (1968))(emphasis and alteration in
original); see United States v. Ozsusamlar, 349 App’x 610, 612
(2d Cir. 2009); McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir.
1999).
(continued...)
13 No. 20070696
¶29 Turning now to witness unavailability, forfeiture only
applies when the state has shown that the witness, whose out-of-
court statements are at issue, is unavailable at the defendant’s
criminal trial. Witness unavailability is an easy question to
answer when the declarant is deceased because the witness can
never be made available regardless of the efforts of the
prosecution or the court. Cf. United States v. Cherry, 217 F.3d
811, 815-16 (10th Cir. 2000) (not questioning witness
availability in light of the declarant’s murder); United States
v. Emery, 186 F.3d 921, 925-26 (8th Cir. 1999) (same); United
States v. Houlihan, 92 F.3d 1271, 1279-80 (1st Cir. 1996) (same).
It is more difficult to evaluate the availability of a witness
who has indicated unwillingness to testify prior to trial. Such
a witness could conceivably have a change of heart and opt to
testify despite earlier pronouncements to the contrary.
¶30 Indeed, any wrongful acts by the defendant are
immaterial as far as the confrontation clause is concerned until
it is shown that the witness is in fact unavailable at the
criminal trial. The case law surrounding unavailability arising
within the forfeiture doctrine, however, demonstrates that courts
do not demand that a witness who refuses to testify be placed
before the jury prior to an evaluation of the witness’s
availability. These cases hold that witness unavailability ought
to be considered as part of the overall forfeiture analysis,
which generally is done through an evidentiary hearing held
outside the presence of the jury. State v. Byrd, 967 A.2d 285,
303 (N.J. 2009); See United States v. Aguiar, 975 F.2d 45, 47 (2d
Cir. 1992); Vasquez v. People, 173 P.3d 1099, 1105 (Colo. 2007);
21A Am. Jur. 2d Criminal Law § 1095 (2008). This model is
appropriate in this context.3 To hold otherwise would run

3 (...continued)
Constitutional unavailability, however, is applied only in
prosecutions where the state attempts to introduce a
non-testifying witness’s out-of-court statements through the
doctrine of waiver. We have found no case applying the
constitutional unavailability standard to the forfeiture by
wrongdoing doctrine.
4 We are aware that the district court faces certain
practicalities when preparing a case for trial. One of those
considerations is each party’s motion on what testimony will be
admitted at trial under Utah laws and rules. It is appropriate
to do so before trial and we do not wish that our ultimate
holding in this appeal is converted into a weapon used by defense
counsel to hinder the prosecution of criminal defendants. The
(continued...)
No. 20070696 14
contrary to the policy-based reasoning underlying the forfeiture
doctrine; if the prosecution were to be required to present the
witness at trial, the defendant could arguably benefit from the
impression left with the jury by a victim or witness who refuses
to answer the prosecutor’s questions. Defendants should not be
permitted to benefit in this way from their wrongful actions.
¶31 While we hold that a trial court may evaluate the
witness’s availability in an evidentiary hearing immediately
prior to trial, the district courts must be conscious that the
timing of the hearing is critical. If the hearing is held in the
early pre-trial stages of the criminal prosecution, the court
will be required to revisit the status of the witness at the time
of trial to ensure the witness has remained unavailable. No re-
evaluation of the witness’s availability would be required when
the evidentiary hearing is held in close temporal proximity of
the trial or where the witness’s unavailability cannot be
altered.
¶32 In this case, it was appropriate for the district court
to hold an evidentiary hearing on whether Mr. Poole forfeited his
right to confront C.P. based on his wrongful acts. Ultimately,
the district court found that C.P. was unwilling to testify at
Mr. Poole’s criminal trial, and was thereby unavailable at Mr.
Poole’s trial. At the time, C.P. had twice demonstrated an
unwillingness to answer the state’s questions after taking the
witness stand, the last occurring on March 16, 2007. At the
soonest, Mr. Poole’s trial would have started more than five
months after C.P. was last questioned. We find that this period
of time is significant and precluded the district court from
finding that C.P. was, in fact, unavailable at Mr. Poole’s
trial.4 C.P. was obviously unavailable when the state attempted

4 (...continued)
protections provided in the Utah and U.S. Constitutions cannot be
ignored. Here, the court must be able to find by a preponderance
of the evidence that the witness was unavailable at trial. We
cannot do that in this case.
15 No. 20070696
to take her testimony. But that is not enough to hold that she
would definitively be unavailable by the time Mr. Poole went to
trial.
CONCLUSION
¶33 The district court concluded that the Utah Constitution
recognized the availability of the doctrine of forfeiture by
wrongdoing. The district court was correct; the Utah
Constitution does not allow a defendant to benefit from misdeeds
designed to render an adverse witness unavailable. Therefore,
today we formally adopt the doctrine of forfeiture by wrongdoing
under the Utah Constitution. To prove a defendant has forfeited
the right to confront a witness, the state must prove that the
witness is unavailable at trial through the wrongful acts of the
defendant, and the defendant’s acts were intended to render the
witness unavailable. Additionally, the prosecution has the
burden of proving forfeiture by a preponderance of the evidence
and must make the showing with evidence properly admitted via the
Utah Rules of Evidence.
¶34 And while we recognize the doctrine’s existence under
Utah law, we find that a decision five months in advance of trial
on whether Mr. Poole forfeited his right to confront C.P. was
premature. C.P.’s status as an unavailable witness at Mr.
Poole’s criminal trial cannot be determined until close to the
time of trial. Our holding here should not be construed as
requiring the prosecution to bring C.P. before a jury and attempt
to question her. The district court may hold a preliminary
evidentiary hearing on the issue. But that hearing must come
within close temporal proximity to the defendant’s trial. We do
not define the outer limits of when this hearing must occur; we
do, however, find that the time period that elapsed between
C.P.’s last questioning and Mr. Poole’s scheduled trial is too
long. Given that fact, we cannot hold that C.P. was unavailable
at Mr. Poole’s trial.
¶35 Therefore, Mr. Poole has the option to withdraw his
guilty pleas to three counts of rape of a child and proceed to
trial on the eighteen counts, all of which are first degree
felonies, originally charged against him.
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No. 20070696 16
¶36 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.