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69. What is the correct ruling on the prosecutor's contention that the defendant has forfeited his objections?
For purposes of the motion, the parties have agreed that the prosecutor can establish to the court, by a preponderance of the evidence, that the defendant killed the business rival because the rival had stolen a large amount of money from the defendant.
At the defendant's murder trial, the defendant moved to exclude the rival's statement to the police on both hearsay and confrontation grounds. The prosecutor responded that the defendant had forfeited both his hearsay and his confrontation objections by killing the rival.
A defendant was charged with murdering a business rival. Two days before he was killed, the rival visited the police station to communicate his concerns about the defendant, saying to the police, «I think [the defendant] is going to kill me.»
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A is incorrect. The prosecutor has not demonstrated forfeiture of either objection. The defendant's wrongful conduct was not for the purpose of preventing the declarant from testifying as required to establish a forfeiture of the confrontation objection.
B is incorrect. As set out above, the prosecutor has not demonstrated forfeiture of either objection. The defendant's wrongful conduct was motivated by revenge and was not for the purpose of preventing the declarant from testifying.
D is incorrect. A trial judge may find the threshold requirements for forfeiture by a preponderance of the evidence. Further, under FRE 104(a) the preponderance standard applies to the trial judge's determinations on preliminary questions of admissibility.