United States v. Mayhew

United States District Court for the Southern District of Ohio · 2005 · Evidence

380 F. Supp. 2d 961 (S.D. Ohio 2005)

Updated August 22, 2026

EvidenceConfrontation ClauseForfeiture by wrongdoingHearsayRule 403Sixth Amendmenttestimonial statementspreponderance of the evidence

Facts

After the alleged shootings and kidnapping, Kristina McKibben was shot by the defendant during a police stop and died shortly thereafter. While in an ambulance, she gave an audiotaped statement to Sergeant Cahill identifying the defendant as the killer and kidnapper and describing related events; the statement was coherent though made during emergency treatment. The defendant later gave a videotaped confession admitting that he shot Tamara McKibben, Frank Rigsby, Kristina McKibben, and himself. The government also sought to introduce four letters written by Kristina, including letters to her mother describing beatings by the defendant and a post-August 7 letter expressing grief and self-blame.

Issue

Whether Kristina McKibben's testimonial audiotaped statement to police was admissible despite the Confrontation Clause because the defendant forfeited his confrontation rights by wrongdoing. Whether her letters were admissible, including whether they were hearsay or barred by the Confrontation Clause, and whether Rule 403 required exclusion.

Rule

A defendant forfeits Confrontation Clause rights when the court determines by a preponderance of the evidence that the declarant is unavailable because the defendant intentionally murdered her, regardless of whether the defendant is being tried for that identical murder. Also, out-of-court statements offered to prove the declarant's state of mind rather than the truth of the matter asserted are not hearsay, and because the Confrontation Clause does not bar such nonhearsay uses, Crawford is not implicated; relevant evidence is still subject to Rule 403 balancing.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal kidnapping and murder prosecution in Cincinnati, a victim gave a recorded statement to detectives from her hospital bed identifying Noah Benton as the person who abducted her and shot her companion. The victim died hours later, and the prosecution offers Noah’s own post-arrest confession admitting that he intentionally shot the victim.

If Noah objects under the Confrontation Clause because he never had a chance to cross-examine the victim, how should the court rule?

Explanation. The statement is testimonial, but under the majority opinion’s rule, a defendant forfeits Confrontation Clause rights when the court finds by a preponderance of the evidence that the defendant intentionally murdered the declarant and thereby caused the declarant’s unavailability. That rule applies even when the defendant is being tried for that same murder. The standard is preponderance, not beyond a reasonable doubt.