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Published online by Cambridge University Press: 04 July 2014
You may know the standard illustration of chutzpa — the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish — the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same grounds, if the jurisdiction applies a rule against hearsay, he should be deemed to have forfeited the right to invoke it against evidence of the statement.
Professor of Law, University of Michigan Law School.
1 See Rosten, Leo, The Joys of Yiddish, (1968) 92 Google Scholar (“[t]he classic definition”); Dershowitz, Alan M., Chutzpah, (1991) 18 Google Scholar (“[t]he classic illustration”).
2 Some courts speak of the defendant as having waived the confrontation right, but this is inaccurate: It is not necessarily so that an accused who has acted in the ways described here has knowingly, intelligently, and deliberately relinquished the right. See Steele v. Taylor, 684 F.2d 1193, 1201 n.8 (6th Cir. 1982), cert, denied, 460 U.S. 1053 (1983).
3 Sec. 13(3) of the 1925 Act allowed the use of a deposition against an accused if the witness was unavailable for any of several reasons, including having been “kept out of the way by means of the procurement of the accused or on his behalf”. The limitation as to how the witness was “kept out of the way” sometimes prevented application of the provision. See R. v. O'Loughlin & McLaughlin, [1988] 3 All E.R. 431, 85 Cr. App. Rep. 157, 161-62 (1986) (failing to find sufficient proof that threats were made by or on behalf of the defendant, and refusing to hold that threats “with the defendant's interests at heart” would suffice).
Sec. 23(3) of the 1988 Act is considerably more generous to prosecutors. Subject to some qualifications, it allows admissibility in criminal proceedings of a statement that is embodied in a document and was “made to a police officer or some other person charged with the duty of investigating offences or charging offenders” if “the person who made it does not give oral evidence through fear or because he is kept out of the way”. This provision has been held to apply even if the witness does give some testimony at trial, if the testimony was limited (to what extent it must be does not yet seem clear) because of fear. R. v. Ashford Justices, ex p. Hilden, [1993] Q.B. 555, [1993] 2 All E.R. 154 (1992). Also, the disjunctive wording can be satisfied by proof of spontaneous fear, not attributable to any affirmative conduct by the defendant or anybody else. One significant qualification on section 23 is that, in general, if the statement was made for “pending or contemplated criminal proceeedings” or “a criminal investigation”, admission requires leave of the court, which should not be given unless doing so appears in the interests of justice upon consideration of factors laid out by the statute in section 26. This qualification may reflect some implicit sensitivity to the confrontation right discussed in this article.
4 Under that provision, subject to some qualifications, a written statement made by a witness out of court may be admissible in criminal proceedings “if the person who made it is not a witness either because he refuses to testify or is incapable of testifying or because he cannot be brought to court since he is not alive or cannot be found, provided that the court is satisfied, from the circumstances of the case, that improper means have been used to dissuade or prevent the person who made the statement from giving testimony”. Unlike the 1988 English act, this provision requires a showing of improper means to prevent testimony, rather than simply fear; it does not, however, require attribution to the defendant.
5 The proposed Rule, which has been approved by the Supreme Court and submitted to Congress, states a new exception to the rule against hearsay for a statement that was made out of court by a declarant deemed unavailable to testify at trial and that satisfies this description:
“Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness”.
Thus, the wrongdoing must be attributable to the party opponent at least to the extent that he must have “acquiesced” in it, which presumably requires some degree of prior knowledge. The progress of the proposed Rule has been rapid; it had not even been discussed, at least not publicly, when I presented this paper at the International Conference on Rights of the Accused, Crime Control and Protection of Victims in Jerusalem in December 1993.
6 An earlier defense of the principle, discussion of some of the issues, and a recommendation for a new Federal Rule much like the one now pending may be found in a student comment, Markland, Paul T., “The Admission of Hearsay Evidence where Defendant Misconduct Causes the Unavailability of a Prosecution Witness”, (1994) 43 Am. U. L. R. 995 Google Scholar.
7 See Fed. R. Evid. 801, 802.
8 See Fed. R. Evid. 803(1)-(23), 804(b)(1)-(4).
9 See Fed. R. Evid. 803(24), 804(b)(5). A proposal to replace these exceptions by a new single exception, Fed. R. Evid. 807, virtually identical to each of them, has been approved by the Supreme Court of the United States and in all likelihood will become law in December 1997 at the same time as the new Rule 804(b)(6).
10 See White v. Illinois, 502 U.S. 346 (1992) (holding that Confrontation Clause was not violated by admission of child's statements, alleging sexual abuse, that fit within hearsay exceptions for spontaneous declarations and statements made for purposes of medical treatment, irrespective of whether declarant was available to be a witness).
11 See Idaho v. Wright, 497 U.S. 805 (1990) (holding that Confrontation Clause was violated by admission, under state's residual exception, of child's statement, alleging sexual abuse, that did not fit any of the categorical exceptions and that the Supreme Court believed did not have sufficient guarantees of trustworthiness).
12 Para. 1 is a general provision guaranteeing a criminal defendant “a fair and public hearing … by an independent and impartial tribunal”.
13 Para. 3(d) guarantees a criminal defendant the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
14 Kostovski v. Netherlands, 12 E.H.R.R. 434, 448-49 (1989), ¶ 41.
15 Ibid., ¶ 40. The issue in Kostouski was actually whether the declarant could be considered a witness even though his statement was not read aloud at trial, and the Court answered in the affirmative. It follows a fortiori that if the statement were read aloud the declarant would be considered a witness. And indeed, in an extensive string of cases since Kostovski, the Court has given force to the defendant's right “to challenge and question a witness against him”, Windisch v. Austria, 13 E.H.R.R. 281 (1991) (judgment September 1990), even though the witness made the statement out of court, before the trial. See, e.g., Saïdi v. France, Series A, no. 261-C (20 Sept. 1993). I offer a comparative perspective on these European cases in an essay, Confrontation Rights of Criminal Defendants, published in J.F. Nijboer and J.M. Reijntjes, Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence (1997) 533–41Google Scholar.
16 “Because hearsay rules and the Confrontation Clause are designed to protect similar values and stem from the same roots, … no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception”. Bourjaily v. United States, 483 U.S. 171,182 (1987) (citations and quotation marks omitted and punctuation simplified).
17 See, e.g., Fed. R. Evid. 803(2).
18 The first of these problems is particularly glaring if the jurisdiction, like all those in the United States, applies hearsay law in civil as well as in criminal cases. But even if the jurisdiction does not apply hearsay law in civil cases, the problem remains: The use of hearsay law to reflect a confrontation right that should be articulated separately will tend to result in hearsay law that is too stringent in excluding hearsay offered by the defendant and hearsay that is offered by the prosecution but does not raise any genuine confrontation concerns.
The second of these problems — inadequate protection of the confrontation right — is not substantially affected by whether or not the jurisdiction applies hearsay law in civil cases.
19 In this respect, I agree with the concurring opinion of Justice Thomas in White v. Illinois, 502 U.S. 346, 358-59 (1992), and also with the analysis of Amar, Akhil, in “Sixth Amendment First Principles”, (1996) 84 Geo. L.J. 641, at 691-92, 696 Google Scholar. I do not agree entirely with their analyses, however, and hope to elaborate on the differences, as well as on the points of agreement, in a forthcoming essay in the Georgetown Law Journal.
20 In the forthcoming essay in the Georgetown Law Journal mentioned above in n. 19, I will reflect somewhat further on the matter. Perhaps a statement, even though made outside the law enforcement context, should also be considered accusatory if it is hostile and accuses the defendant of a crime. The requirement of hostility distinguishes situations such as that in which a co-conspirator makes a statement, perhaps in the course of the conspiracy, describing criminal activity of the defendant.
21 In California v. Green, 399 U.S. 149, 172-89 (1970) (concurring), Justice John M. Harlan II adopted a theory of Confrontation limited to available declarants, and my friend and colleague Peter Westen defended a similar theory in “The Future of Confrontation,” (1979) 77 Mich. L.R. 1185 CrossRefGoogle Scholar. Justice Harlan renounced this view a few months after Green, in Button v. Evans, 400 U.S. 74, 94-96 (1970) (concurring), in favor of a more restrictive theory limited to declarants who provide formal testimony. Interestingly, both Westen and Justice Harlan (in his Green period), while applying the confrontation right only if the declarant is available, would apply it generally if this condition is satisfied. See Green, supra, 399 U.S. at 186 (“what I … deem the correct meaning of the Sixth Amendment's Confrontation Clause — that a State may not in a criminal case use hearsay when the declarant is available”.) (Harlan, J., concurring). I believe that in this expansive aspect this concept of confrontation is too broad: The right should not apply, for example, to routine business records entered without anticipation that they would be used in investigation or prosecution of crime, even if the person making the entries would be available as a witness. Westen, apparently recognizing the problem, suggests that even if the declarant is available the confrontation right applies only if “the prosecution can reasonably expect the defendant to wish to cross-examine” the declarant at the time of trial (at 1207). But I do not believe this attempted avoidance works: No matter how routine, or apparently reliable, the statement might appear to be to the court, the accused might welcome the opportunity to cross-examine the declarant in an attempt to introduce some element of doubt, and certainly the accused has every incentive to say he wishes to examine her.
22 Illinois v. Allen, 397 U.S. 337, 342-43 (1970).
23 This description closely fits the facts of United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982), cert, denied, 467 U.S. 1204 (1984).
24 See, e.g., United States v. Mastrangelo, ibid. (quoting other cases); State v. Corrigan, 10 Kan. App.2d 55, 691 P.2d 1311, 1314 (1984); Olson, 291 N.W.2d 203, 207 (Minn. 1980).
25 See below, n. 30. Note that the proposed Fed. R. Evid. 804(b)(6), quoted above in n. 5, does depend on wrongdoing by the party opponent; in this sense, the proposed Rule might be too narrow.
One can conceive of situations in which it is merely fortuitous that the defendant's conduct, even if wrongful, caused the declarant's unavailability to testify: Suppose the defendant drives negligently on the way to court, and happens to run over the declarant, who was on her way to testify. But I do not think it is necessary, for the principle to apply, that rendering the declarant unavailable to testify have been the motivating, or the principal, purpose of the defendant's conduct.
26 See United States v. Mayes, 512 F.2d 637, 651 (6th Cir.), cert, denied, 422 U.S. 1008 (1975) (the defendant “cannot now be heard to complain that he was denied the right of cross-examination and confrontation when he himself was the instrument of the denial”); cf. Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982), cert, denied, 460 U.S. 1053 (1983) (“A defendant cannot prefer the law's preference [for live testimony over hearsay] and profit from it… while repudiating that preference by creating the condition that prevents it”.).
27 E.g., United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982), cert, denied, 467 U.S. 1204 (1984); United States v. Thevis, 665 F.2d 616, 627-31 (5th Cir. 1982), cert. denied, 459 U.S. 825 (1982); People v. LaTorres, 186 A.D.2d 479, 480, 590 N.Y.S.2d 187, 188 (1st Dept. 1992) (“the People proved defendants or one acting in their behalf caused the death of an eyewitness to the shooting spree herein prior to trial”); Statev. Gettings, 244 Kan. 236, 769 P.2d 25 (1989).
28 E.g., United States v. Potamitis, 739 F.2d 784 (2d Cir.), cert. denied, 469 U.S. 918, 934 (1984) (intimidation by father of defendant); Rice v. Marshall, 709 F.2d 1100, 1102 (6th Cir. 1983), cert. denied, 465 U.S. 1034 (1984); Black v. Woods, 651 F.2d 528, 530-31 (8th Cir.), cert. denied, 454 U.S. 847 (1981); United States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980); United States v. Carlson, 547F.2d 1346, 1355-60 (8th Cir. 1976), cert. denied, 431 U.S. 914 (1977); State v. Olson, 291 N.W.2d 203, 207-08 (Minn. 1980) (acts of intimidation by co-conspirator attributed to defendant).
29 See United States v. Williamson, 792 F. Supp. 805, 810-11 (M.D. Ga.), conviction affd, 981 F.2d 1262 (11th Cir. 1992), vacated, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (confrontation right would be lost on satisfactory showing, not made here, of an agreement by defendant and declarant that defendant would pay declarant's legal fees in return for declarant's silence).
30 United States v. Mayes, 512 F.2d 637 (6th Cir.), cert, denied, 422 U.S. 1008 (1975) (improper claim by attorney for defendant, supposedly on behalf of declarant, defendant's brother, of privilege against self-incrimination). Had the defendant merely persuaded the declarant, without coercion, to make a legitimate claim of the privilege, the result should arguably be the same. The absence of the declarant is not attributable to any wrongdoing by the defendant. But by hypothesis it is attributable to the defendant's conduct intended toward that end — that is, the court finds that but for the defendant's intercession the declarant would in fact not have claimed the privilege, and this was the anticipated, presumably desired, result of the defendant's conduct. How, then, can the defendant complain about his inability to confront and examine the declarant? He might argue that he merely persuaded another person to exercise her rights. I think this is a close issue. Perhaps the defendant ought to avoid forfeiture in this setting only if he has a sufficiently close relationship with the declarant that he has a substantial reason, apart from impairing the prosecution's case against him, to persuade the declarant not to testify.
31 Reynolds v. United States, 98 U.S. 145, 158 (1878) (concealment or persuasion of declarant, and misleading of authorities as to her whereabouts). See generally Steele v. Taylor, 684 F.2d 1193, 1201 & n.10 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983) (declarant under control of defendant; summarizing case law from England and United States: “Wrongful conduct obviously includes the use of force and threats, but it has also been held to include persuasion and control by a defendant, the wrongful nondisclosure of information, and a defendant's direction to a witness to exercise the fifth amendment privilege”.).
32 See United States v. Thevis, 665 F.2d 616, 627-31 (5th Cir. 1982), cert. denied, 459 U.S. 825 (1982).
33 See, e.g., United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984); State v. Gettings, 244 Kan. 236, 769 P.2d 25, 29 (1989). If the court errs in either direction on the predicate question of whether the defendant wrongfully rendered the declarant unavailable, the negative consequences are substantial. Note Lego v. Twomey, 404 U.S. 477 (1972), in which the Supreme Court held that the prosecution is not required by the Constitution to prove the voluntariness of a confession by a standard greater than preponderance of the evidence — that is, more likely than not. The Lego Court emphasized that “the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts” (at 486). The same might be held of the inquiry into the assertion that the defendant's misconduct rendered the declarant unavailable.
34 See supra n. 3. Cf., e.g., United States v. West, 574 F.2d 1131 (4th Cir. 1978) (witness testifies before grand jury testimony and is later murdered in a manner suggestive of contract killers admitted; the prosecution offers no evidence linking the defendants to the murder; grand jury testimony admitted at trial, but on dubious grounds without relying on forfeiture principle).
35 Cf. State v. Corrigan, 10 Kan. App.2d 55, 691 P.2d 1311,1316 (1984) (“the State made the required reasonable effort to produce the missing witness to justify a finding that she was ‘unavailable’”).
36 For convenience's sake, I will now usually drop this word.
37 Under Fed. R. Evid. 104(a), the judge, in making the predicate evidentiary determination, “is not bound by the rules of evidence except those with respect to privileges”. Thus, the predicate question may be decided on a wider factual base than the substantive question. On the other hand, if the jurisdiction adheres to the traditional rule against bootstrapping, discussed below, the statement at issue will not itself be considered for the truth of what it asserts with respect to the predicate question, though of course it will be considered on the substantive question if the court holds it admissible.
38 See supra nn. 32-33 and accompanying text (discussing standard of proof for predicate question).
39 483 U.S. 171 (1987).
40 See Fed. R. Evid. 104(a).
41 If the prosecution understands that the victim is prepared to make a statement, then the prosecution ought not delay the taking of the statement until a time when a deposition would be impossible; such delay should be charged against the prosecution, and probably should result in refusal to apply the forfeiture principle.
42 Under the statutes 1 & 2 Ph. & M. c. 13, § 4 (1554), and 2 & 3 Ph. & M. c. 10 (1555), justices of the peace were directed to take the examinations of a felony suspect and of the accusing witnesses. By custom, the examinations of the witnesses were taken in the presence of the prisoner and under oath, and if the witness was later unavailable to testify at trial this earlier examination could be admitted. These examinations were sometimes used in the case of murder victims who lingered after the fatal blow. See, e.g., R. v. Radbourne, 1 Leach 457, 516 (1787) (noting that the whole of the deposition was taken in the presence of the prisoner, and signed by the victim). In R. v. Woodcock, 1 Leach 500, 168 Eng. Rep. 352 (K.B. 1789), in which the available time was only a matter of hours, the defendant was not present at the examination, but the examination was taken under oath and in writing; she affixed her mark to a written rendition of the statement. It appears that the authorities, aware that the victim might not be able to testify at trial, were careful to preserve at least part of the protections that the accused would have if she did testify.
By the early nineteenth century, a greater adversarial spirit in litigation yielded even greater judicial care. In R. v. Forbes, Holt 599, 171 E.R. 354 (1814), the defendant was not present at the commencement of the deposition of his victim, though the whole of the deposition was read over to him, apparently still in the presence of the victim. The judge refused to admit the portion of the deposition taken before the prisoner was present; he said that presence of the defendant “whilst the witness actually delivers his testimony” was crucial “so that he may know the precise words he uses, and observe throughout the manner and demeanour with which he gives his testimony”. R. v. Smith, Holt 614,171 E.R. 357 (1817), involved similar facts, though there the murder victim was resworn in the defendant's presence, and “re-asserted what he had before said, by assenting to the deposition when slowly read over to him”. On these facts, a consultation of the judges apparently concluded that the entire deposition was admissible. But the trial judge, Richards, C.B., took care to note that, “the decisions establish the point, that the prisoner ought to be present, that he might cross-examine”.
43 See above p. 514.
44 Queen v. Osman, 15 Cox Crim. Cas. 1, 3 (Eng. N. Wales Cir. 1881) (Lush, L.J.). Remarkably, this rationale was endorsed recently by the Supreme Court in Idaho v. Wright, 497 U.S. 805, 820 (1990).
45 518 F.2d 316 (9th Cir. 1975), cert. denied, 423 U.S. 895 (1975).
46 Napier did not actually discuss the Confrontation Clause, but under White v. Illinois, 502 U.S. 346 (1992), the holding that the statement satisfied the excited utterance exception would also be sufficient to satisfy the Confrontation Clause.
47 484 U.S. 554 (1988).
48 Ibid., at 559-60.
49 Ibid., at 566.
50 There is some ambiguity in Mrs. Caruso's case, because she might well have lacked the capacity to appreciate the law enforcement consequences of her statement. But the statement did accuse Napier of committing a crime, and it clearly was hostile. See supra n. 20 and accompanying text.
51 A predicate for applicability of this rule is that the declarant must “testif[y] at the trial … and [be] subject to cross-examination concerning the statement”. Under analysis similar in some respects to that used in the Confrontation Clause context, the Court held that Foster was subject to cross-examination notwithstanding his assertion of memory loss.
52 This procedure would implement a proposal I offered, for the context in which confrontation rights are not at stake, in “Improving the Procedure for Resolving Hearsay Issues”, (1991) 13 Cardozo L. R. 883, at 892–97Google Scholar. I suggested there that ordinarily, if the court is inclined to admit a hearsay declaration but the opponent of the evidence timely produces the declarant, the proponent of the evidence ought to be required either to present the live testimony of the declarant as part of his case or forgo use of the declaration. One impetus behind this suggestion is that, for various reasons, the opponent's ability to subject the declarant to an effective adverse examination is far better if the declarant is already on the stand as part of the proponent's case than if the opponent must later call her to the stand as part of his own case. Given that this procedure offers the opponent a good opportunity to examine the declarant — assuming the opponent could produce her and he finds it worthwhile to do so — it makes admission of the hearsay a more palatable alternative. It also avoids waste. Under current practice, the opponent often objects to the hearsay evidence not because he really wishes to examine the declarant but in hopes that the proponent will be forced to forgo her evidence altogether; often, though, the proponent's response is to undertake the cost of producing the declarant as a live witness. Under this proposal, by contrast, the declarant is produced only if the opponent genuinely believes that the opportunity to examine her is worth the cost of doing so.
I do not believe that this procedure should generally be implemented when confrontation rights are at issue. In general, I believe the prosecution, rather than the defense, ought to go to the trouble and expense of producing a declarant whose statement it wishes to use; moreover, if there is a chance that the declarant could not be produced, the prosecution, rather than the defense, ought to bear that risk. In the Napier situation, however, several factors cut the other way. First, the judicial system ought to be reluctant to press the declarant to testify. Second, it seems highly likely that the defendant's objection is indeed a bluff: He does not want a chance to cross-examine the declarant, but is rather hoping that the prosecution loses the evidence. Third, it appears clear that the declarant could be brought to the witness stand, if that is really desired. In these circumstances, it seems reasonable to say to the defendant, in effect, “The secondary evidence of the declaration will be admitted, unless you produce the declarant”, rather than to say to the prosecution, “The secondary evidence will be excluded, unless you produce the declarant”.
53 See, e.g., White v. Illinois, 502 U.S. 346 (1992) (excited utterances and statements for medical treatment).
54 E.g., Rev. C. Wash. Ann. § 9A.44.120.
55 There is a possibility that, in some cases, the confrontation right ought not to apply because the child lacked so much maturity and understanding at the time of her statement that the statement ought not be considered accusatory. (The child's lack of maturity and understanding might also diminish the probative value to be attached to the statement, but not necessarily below the point sufficient to warrant admissibility.) If a dog's bark has sufficient probative value, we do not exclude it because the accused has not had a chance to cross-examine the dog. It may be that the cry for help of a young child, even if verbalized, bears a closer material resemblance to the dog's bark than to an adult's accusatory declaration.
56 See Goodman, Gail S. et al. , Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims (1992) 114–15Google ScholarPubMed (summarizing conclusions from a large study: “On average, the short-term effects [of testifying] on the children's behavioral adjustment, as reported by their caretakers, were more harmful than helpful. In contrast, by the time the cases were resolved, the behavioral adjustment of most, but not all, children who testified was similar to that of children who did not take the stand. The general course for these children, as for the control children, was gradual improvement”.).
57 But see Maryland v. Craig, 497 U.S. 836 (1990) (considering a procedure allowing a child to testify in a child abuse case out of the presence of the accused by one-way closed circuit television, and holding the procedure permissible if the trial court determines that the procedure “is necessary to protect the welfare of the particular child witness who seeks to testify”, ibid., at 855).
58 But see Aleinikoff, T. Alexander, “Constitutional Law in the Age of Balancing”, (1987) 96 Yale L.J. 943 CrossRefGoogle Scholar.
59 See State v. Sheppard, 197 N.J. Super. 411, 435-42, 484 A.2d 1330, 1345-48 (Burlington Co. 1984) (confrontation right held inapplicable because defendant threatened to kill child victim of sexual abuse if she revealed his activities); but see State v. Jarzbek, 204 Conn. 683, 699, 529 A.2d 1245, 1253 (1987), cert. denied, 484 U.S. 1061 (1988) (“Here,… although the threats made by the defendant against the minor victim were … designed to conceal his wrongdoing, they were made during the commission of the very crimes with which he is charged … The constitutional right of confrontation would have little force … if we were to find an implied waiver of that right in every instance where the accused, in order to silence his victim, uttered threats during the commission of the crime for which he is on trial”.).
60 The child's silence may also be attributable to her caretaker's desire to protect her from trauma. The caretaker may refuse to make the child available to testify, or instruct her not to testify. In such a case, the child should probably not be deemed unavailable by virtue of the defendant's wrongdoing unless the prosecution uses against the caretaker the coercive measures that it would use if the caretaker were the declarant. If such measures fail to yield the testimony, and if the court is persuaded that the caretaker's refusal to allow the testimony is attributable to the defendant's wrongdoing, then probably the case should be treated as if the caretaker were the declarant and was intimidated by the defendant. Arguably, to reach this point the prosecution should have to show only that coercive measures would have been futile. Such a rule would require great care in operation, however, for under it admission of the prior statement could be secured if the caretaker merely stood up to what might be an idle threat by a friendly prosecutor; the door would be wide open to collusion and strategic game-playing.