"A statement shall not be excluded by the rules of evidence applicable to hearsay if: (1) The declarant is unavailable as a witness; and (2) the statement is being 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."

This language is copied from Federal Rule of Evidence 804(b)(6), Forfeiture by Wrongdoing.

The Washington bill comes in response to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). In that case, the U.S. Supreme Court interpreted the constitution's Confrontation Clause to exclude from a criminal trial out-of-court statements by a person who does not testify at trial, unless the defendant had an adequate prior opportunity to cross-examine the person. The Court will permit the admission of those statements, though, when the defendant has forfeited his right to object through wrongdoing. 124 S.Ct. at 1370.

Since the Crawford decision, some prosecutors have encouraged child interviewers to ask child complaints whether the accused told the child not to report being molested. This strategy is designed to make the child's out-of-court statements admissible, even if the child does not testify at trial. See the article, Using the Crawford v. Washington “Forfeiture by Wrongdoing” Confrontation Clause Exception in Child Abuse Cases at the Web site of the American Prosecutors Research Institute.

The federal forfeiture-by-wrongdoing rule has been construed not to apply unless the defendant acted from a "motive . . . to prevent a witness from testifying." Francis v. Duncan, 2004 WL 1878796, at 17 (S.D.N.Y. Aug. 23, 2004).

In some states which have no court rule or statute defining forfeiture by wrongdoing, the courts have applied the notion more broadly. They have held that any wrongful act by the defendant (such as murder) which prevents the declarant's availability at trial forfeits the right to object to the out-of-court statements. No motive to prevent testimony need be shown. See People v. Moore, 2004 WL 1690247 (Colo.App. 2004) and State v. Meeks, 277 Kan. 609, 88 P.3d 789, 794-95 (2004).