Davis v. State: Delaware Clarifies “Reasonable Means” Under D.R.E. 804(a)(5) and Re-Affirms Forfeiture-by-Wrongdoing

1. Introduction

In Davis v. State, No. 223, 2024 (Del. June 26, 2025), the Delaware Supreme Court addressed the admissibility of a domestic-violence victim’s out-of-court statements after the defendant’s sustained witness-tampering campaign rendered her absent from trial. The Court faced two interrelated questions:

What constitutes “reasonable means” to procure a witness’s presence under Delaware Rule of Evidence (“D.R.E.”) 804(a)(5)?
When does a defendant forfeit both hearsay objections and Confrontation Clause rights by wrongdoing under D.R.E. 804(b)(6)?

Arthur Davis, jailed pending trial, placed over twenty recorded calls pressuring Andrea Brown—protected by a no-contact order—to recant, not cooperate, or testify falsely. Despite subpoenas, phone calls, and an investigator’s visit, Brown failed to appear. The Superior Court admitted her body-camera and 911 statements, finding Brown “unavailable” and Davis responsible for that unavailability. A jury convicted Davis on multiple counts. On appeal, Davis argued that (i) the State’s failure to secure a material-witness warrant doomed the unavailability finding and (ii) his conduct did not rise to “wrongdoing” sufficient to trigger forfeiture.

2. Summary of the Judgment

The Supreme Court unanimously affirmed:

No material-witness warrant is required—the State’s subpoenas, phone outreach, and investigator visits were “good-faith, genuine, and bona fide” efforts satisfying D.R.E. 804(a)(5).
Davis forfeited hearsay and confrontation objections—his threats, manipulation, and violation of a no-contact order constituted wrongdoing intended to, and that did, procure Brown’s absence, meeting D.R.E. 804(b)(6).
Accordingly, Brown’s statements were properly admitted, and Davis’s Sixth-Amendment claims failed.

3. Analysis

3.1 Precedents Cited and Their Influence

Iverson v. State, 2024 WL 4039927 (Del. 2024) – Controlled; held that a material-witness warrant is not invariably required where the State employed reasonable means (subpoenas, calls, investigator) in a similar domestic-violence context. Davis relies heavily on Iverson to reinforce that principle.
Phillips v. State, 154 A.3d 1130 (Del. 2017) – Applied Rule 804(b)(6) when the defendant murdered the witness. The Court borrowed Phillips’s three-part test for forfeiture, but clarified that homicide is not the minimum threshold for “wrongdoing.”
Davis v. Washington, 547 U.S. 813 (2006) – U.S. Supreme Court case establishing that a defendant who procures the absence of a witness forfeits Confrontation Clause protections. Delaware again follows the federal view.
State v. Iseli, 458 P.3d 653 (Or. 2020) – Cited by appellant; Oregon required a material-witness warrant on its specific facts. Delaware declined to follow Iseli, emphasizing local precedent (Iverson).
Miscellaneous Delaware decisions (Moss, Charbonneau) reaffirm the “good-faith, genuine, bona fide” standard for procuring attendance.

3.2 The Court’s Legal Reasoning

Rule 804(a)(5) – Unavailability without a Warrant
The text asks whether the proponent used “process or other reasonable means.” • “Process” = formal legal compulsion (subpoenas). • “Other reasonable means” = calls, investigator visits, social-worker outreach. The Court read these as non-exhaustive alternatives—issuing a material-witness warrant is one tool, not a prerequisite. Echoing Iverson, the Court underscored domestic-violence dynamics where victims are frequently reluctant; insisting on a warrant in every case would chill prompt trials and over-criminalize hesitant victims.
Rule 804(b)(6) – Forfeiture-by-Wrongdoing
Applying the Phillips test: (a) Wrongdoing: threats, manipulation, no-contact violations, scripted affidavit, and implied violence (“I usually must beat you”). (b) Intent: Davis’s repeated instructions—“If there is no victim, there is no case”— showed a specific, strategic aim. (c) Causation: Brown’s increasing non-cooperation correlated directly with Davis’s calls; she hung up on the State, skipped meetings, and ignored subpoenas. Because the State met the preponderance threshold, the Court found forfeiture, extinguishing both hearsay objections and confrontation rights.
Confrontation Clause & Compulsory Process
Once forfeiture applies, constitutional objections evaporate. The Court also noted Davis never intended to call Brown himself, negating any compulsory-process complaint.

3.3 Potential Impact on Future Litigation

Domestic-Violence Prosecutions: Prosecutors can rely on subpoenas and diligent outreach to meet unavailability without automatic resort to material-witness warrants—important when warrants may retraumatize victims.
Witness-Tampering Deterrence: Defendants who pressure witnesses risk losing confrontation rights even if violence is only threatened, not executed.
Trial Practice: Trial courts now have clear authority to credit prosecutors’ representations (as officers of the court) and documentary evidence when assessing 804 issues without a separate evidentiary hearing, though prudence suggests sworn affidavits.
Hearsay Doctrine: Reinforces a trend where procedural bars yield to equitable considerations when a party’s misconduct obstructs justice.

4. Complex Concepts Simplified

D.R.E. 804(a)(5) – “Unavailable Witness”: A rule that lets certain hearsay statements into evidence if the witness cannot be brought to court despite genuine efforts to get them there.
Material-Witness Warrant: A court order allowing law enforcement to detain a witness who is likely to flee or ignore subpoenas. Davis confirms it is not always mandatory.
Forfeiture-by-Wrongdoing (804(b)(6)): If you scare or trick a witness into not showing up, you lose the right to complain about their statements being used against you.
Preponderance of Evidence: More likely than not—roughly 51% certainty, a lower burden than “beyond a reasonable doubt.”
Confrontation Clause: The Sixth Amendment right to face and cross-examine adverse witnesses; can be voluntarily or wrongfully forfeited.

5. Conclusion

Davis v. State crystallizes Delaware law in two ways:

It definitively interprets “other reasonable means” in D.R.E. 804(a)(5) to exclude a categorical material-witness-warrant requirement, aligning state practice with pragmatic realities of victim cooperation.
It expands the forfeiture-by-wrongdoing doctrine beyond extreme violence to encompass sustained psychological and coercive misconduct, reinforcing equitable principles that no one may benefit from intimidating a witness.

Going forward, Delaware trial courts possess a clear roadmap: assess diligence under 804(a)(5) flexibly, and where a defendant’s conduct corrupts the process, admit reliable hearsay and disregard confrontation claims. For practitioners, Davis underscores the importance of monitoring inmate communications, documenting outreach efforts, and anticipating forfeiture arguments early in domestic-violence and witness-tampering cases.