Tuesday, April 22, 2008
I've written several previous entries (here, here, and here) about Giles v. California, the case in which the United States Supreme Court will decide the contours of the forfeiture by wrongdoing doctrine (I've also addressed the forfeiture by wrongdoing doctrine in a series of posts: here, here, here, here, here, here, and here). Well, today is the day that the Supreme Court will hear oral arguments in the case, with a decision expected by late June. One of the main issues that the Court is expected to resolve is whether the party seeking to invoke the forfeiture by wrongdoing doctrine must establish that the opposing party specifically intended to prevent a prospective witness from testifying or merely that the opposing party caused a prospective witness to be unable to testify, irrespective of intent.
Put another way, "[i]n Crawford v. Washington, 541 U.S. 36, 62 (2004), this Court recognized that the forfeiture by wrongdoing rule “extinguishes confrontation claims on essentially equitable grounds.” The question presented by this case is: Does a criminal defendant “forfeit” his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?"
Personally, I agree with the position of my colleague Ralph Ruebner, who, along with law student Eugene Goryunov, argues that intent is not required in a forthcoming article. It also bears repeating that an amicus brief has been filed calling for special treatment for statements made by children. I will be following what transpires in the case and reporting, but the best coverage you're going to find is on Professor Richard Friedman's Confrontation Blog.