Shuman-Powell on Giles v. California

Robert Shuman-Powell has posted Giles v. California: A Move Toward Equilibrium in Confrontation Clause Jurisprudence on SSRN. Here is the abstract:

In Giles v. California, the Supreme Court of the United States considered whether California’s interpretation of the doctrine of forfeiture by wrongdoing, obviating purposeful intent, was an established exception to the Confrontation Clause at the time of the founding. The Court held that it was not; a defendant who purposely intends and succeeds in preventing a witness from testifying forfeits his right to confront him.

This note discusses the case, the origins of the Confrontation Clause, and its exceptions in English common law. It argues that the Court appropriately resolved historical ambiguity in the common law in favor of a rule that constrains judicial discretion and reverses the erosion of constitutional protections guaranteed to criminal defendants. It further asserts that the Court is willing to find purposeful intent when the forfeiture doctrine is invoked in a domestic violence context.

Through Giles, the Court moved toward resolving an imbalance between two countervailing forces: a constitutional protection afforded criminal defendants and the maxim upon which the forfeiture doctrine rests. On the one hand, the Court ensured that all citizens would enjoy the right of confrontation by refusing to lower the constitutional bar to admitting testimony from an absent witness. On the other, the Court offered flexibility in order to minimize any possible windfall granted to criminal defendants in domestic abuse situations. Only time, and a test case, will tell if the Court fulfills the promise it made in Giles.