Clients: Please Stop Talking on Recorded Lines

Lawyers, advise your clients over and over again: Stop talking over recorded jail calls.

In the case of Rivera v. State, No. 04-22-00391-CR (Tex. App.—San Antonio July 24, 2024), the Fourth Court of Appeals touched on what would amount to forfeiture of wrongdoing. Forfeiture for wrongdoing means that if you are caught telling your girlfriend / complaining witness in a family violence case over a recorded jail line that “If you’re getting along good with my mom, and you’re getting along good with me . . . you don’t have to go nowhere, man.” Especially when the complaining witness tells you “I would be out on the streets . . . if it wasn’t for your family, for you not leaving me behind.” And “No face, no case.” Then you might be hearing a police officer reading out the statement the girlfriend / complaining witness gave to him when he showed up to investigate the case.

Forfeiture by wrongdoing is a common law exception to confrontation, and the state can introduce hearsay statements of the complaining witness when they show four elements by a preponderance of the evidence: (1) the complaining witness was unavailable to testify; (2) the defendant engaged in wrongful conduct; (3) the defendant’s wrongful conduct procured the complaining witness’s unavailability; and (4) the defendant intended to produce the complaining witness’s unavailability. The wrongful conduct does not need to be violent or threaten. It can also be wrongful conduct to intimidate, harass, offer a bribe, encourage or pressure a person not to testify, leverage financial dependence, threaten to report a witness to CPS, or instruct a witness on how to avoid service. See Moshin v. State, No. 03-22-000175-CR, at *7 (Tex. App.—Austin 2024, pet. ref’d).

See below some of the quotes the Fourth Court pointed to for that finding.