United States v. Antoine Johnson

The world of evidence was shaken about ten years ago when the Supreme Court ruled that out-of-court “testimonial” statements of unavailable witnesses can be admitted only if they have been subject to cross-examination, regardless of the indicia of reliability. Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). This criminal appeal presents an issue of first impression for our circuit, post-Crawford.

The issue concerns the so-called “forfeiture exception” to the Confrontation Clause of the Sixth Amendment. That exception applies when the defendant is responsible for the witness being unavailable. We must decide whether proof of the defendant’s responsibility for the wit ness’s absence must be shown by a preponderance of the evidence, as provided by Rule 804(b)(6) of the Federal Rules of Evidence, or, in light of Crawford and its progeny, by clear and convincing evidence.

The appellants are Antoine Johnson and Michael Williams, who appeal their convictions for armed robbery and murder. They each raise a number of issues from their joint trial for the robbery of an armored truck and murder of a guard, for which each received a life sentence. We…