Volume 66, Issue 2, 485-513
Four recent decisions in the federal courts of appeals have combined the evidentiary doctrine of forfeiture by wrongdoing with imputed substantive criminal liability among conspirators under Pinkerton v. United States. According to this augmented rule—called the “Cherry rule” after the Tenth Circuit opinion that first enunciated it—a witness’s out-of-court statement is admissible against a defendant if a co-conspirator wrongfully silenced the witness in a manner that was within the scope and in furtherance of the conspiracy, and was reasonably foreseeable. This expansion of the forfeiture by wrongdoing doctrine is inconsistent with the Sixth Amendment’s Confrontation Clause for two reasons: it was not contemplated at early common law and it leads to forfeiture of the confrontation right based only on a pretrial determination of guilt. In addition, even if the Cherry rule were compatible with the Confrontation Clause, due process constrains its application short of Pinkerton’s logical extent. Courts should reject or limit the Cherry rule accordingly.