Original Sin

Abstract:     
"Original Sin" discusses the Supreme Court's attempt to discern the original meaning of the Constitution as the basis of two recent decisions: the Second Amendment case, Heller v. Dist. of Columbia, and the much less well known Sixth Amendment case of Giles v. California. It focuses primarily on Giles, where the question was whether the defendant in a murder trial had forfeited his Sixth Amendment right to confront witnesses against him by killing the victim. The California courts had held that this was "forfeiture by wrongdoing" and consequently the victim's prior hearsay statements against the defendant could be used. The Supreme Court, after much futile discussion of history, concluded that only if the defendant's wrongdoing was for the purpose of preventing a witness from testifying would he forfeit his Sixth Amendment right.

Keywords: Criminal Procedure, Sixth Amendment, Confrontation Clause, Forfeiture by Wrongdoing

JEL Classifications: K14

Accepted Paper Series