An Act to Codify Forfeiture by Wrongdoing as an Exception to the Rule Against Hearsay
Maine Legislature, Session 131, LD 0836
Committee: Judiciary
Sponsors: STOVER, CRAVEN, GRAHAM, GRAMLICH, MEYER, MILLETT, O'NEIL, RIELLY, TERRY
Amends: 16 MRSA §62

Legislative Document
No. 836
H.P. 525
House of Representatives, February 21, 2023
An Act to Codify Forfeiture by Wrongdoing as an Exception to the 
Rule Against Hearsay
Reference to the Committee on Judiciary suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative STOVER of Boothbay.
Cosponsored by Representatives: CRAVEN of Lewiston, GRAHAM of North Yarmouth, 
GRAMLICH of Old Orchard Beach, MEYER of Eliot, MILLETT of Cape Elizabeth, O'NEIL 
of Saco, RIELLY of Westbrook, TERRY of Gorham.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  16 MRSA §62 is enacted to read:
§62.  Exception to rule against hearsay; forfeiture by wrongdoing
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
A.  "Declarant" means the person who made the statement.
B.  "Hearsay" means a statement that:
(1)  The declarant does not make while testifying at the trial or hearing; and
(2)  A party offers in evidence to prove the truth of the matter asserted in the 
statement.
C.  "Statement" means a person's oral assertion, written assertion or nonverbal conduct 
if the person intended the nonverbal conduct as an assertion.
D.  "Unavailable" means the declarant is considered to be unavailable as a witness 
because the declarant:
(1)  Is exempted from testifying about the subject matter of the declarant's 
statement because the court rules that a privilege applies;
(2)  Refuses to testify about the subject matter despite a court order to do so;
(3)  Testifies to not remembering the subject matter;
(4)  Cannot be present or testify at the trial or hearing because of death or a 
then-existing infirmity, physical illness or mental illness; or
(5)  Is absent from the trial or hearing and the statement's proponent has not been 
able, by process or other reasonable means, to procure the declarant's attendance.
2.  Statement offered against party that wrongfully caused declarant's 
unavailability.  A statement offered against a party that wrongfully caused or acquiesced 
in wrongfully causing the declarant to be unavailable as a witness, when the party causing 
the declarant to be unavailable intended that result, is admissible as evidence in a criminal 
proceeding as an exception to the rule against hearsay. A party seeking to have the 
statement admitted under this exception must prove by a preponderance of the evidence 
that the opposing party wrongfully caused or acquiesced in wrongfully causing the 
declarant to be unavailable.
SUMMARY
This bill codifies the forfeiture by wrongdoing exception to the rule against hearsay, 
making an out-of-court statement made by an unavailable witness admissible when that 
statement is offered against a party that wrongfully caused or acquiesced in wrongfully 
causing the declarant's unavailability. The party seeking to have this type of statement 
admitted under this exception must show by a preponderance of the evidence that the 
opposing party wrongfully caused or acquiesced in wrongfully causing the declarant's 
unavailability.