Abstract

http://ssrn.com/abstract=1268569
 
 

Footnotes (356)



 


 



Giles v. California: Sixth Amendment Confrontation Right, Forfeiture by Wrongdoing, and a Misguided Departure from the Common Law and the Constitution


Ralph Ruebner


The John Marshall Law School

Eugene Goryunov


Kirkland & Ellis LLP; The John Marshall Law School

September 15, 2008

University of Toledo Law Review, Forthcoming

Abstract:     
The debate about the nature of confrontation rights of the criminally accused under the Sixth Amendment has been lively in recent years. The United States Supreme Court addressed a key confrontation issue definitively during its most recent term when it issued a controversial opinion in Giles v. California, 128 S. Ct. 2678 (2008). The latest issue before the United States Supreme Court was whether intent to prevent live in-court testimony is a necessary element of the constitutional forfeiture analysis. State courts had been split on this point for a number of years. Many, including the Supreme Court of California in People v. Giles, 152 P.3d 433, 440 (2007), overruled in, 128 S. Ct. 976 (2008), rejected the element of intent. Conversely, some, including the Illinois Supreme Court in People v. Stechly, 870 N.E.2d 333 (2007), mandated the inclusion of the element of intent. The United States Supreme Court sided with the seeming minority view and held that unconfronted out-of-court statements are admissible only where the witness is unavailable as a direct result of the conduct that was intended by the accused to render the witness unavailable for live in-court testimony.

In this article, we contend that the common law does not support the inclusion of the element of intent in the forfeiture analysis under the Sixth Amendment. Justice Scalia's plurality opinion in Giles misreads the common law cases as requiring an intent to procure unavailability for application of the forfeiture by wrongdoing exception. Our analysis of the historical record will demonstrate that the English common law judges who fashioned the forfeiture doctrine and American courts that further explained the principle did not make intent to render unavailable an element of the confrontation exception.

Number of Pages in PDF File: 68

Keywords: sixth amendment, forfeiture, confrontation

JEL Classification: K1, K14, K41

Accepted Paper Series


Download This Paper

Date posted: September 16, 2008 ; Last revised: April 8, 2009

Suggested Citation

Ruebner, Ralph and Goryunov, Eugene, Giles v. California: Sixth Amendment Confrontation Right, Forfeiture by Wrongdoing, and a Misguided Departure from the Common Law and the Constitution (September 15, 2008). University of Toledo Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1268569

Contact Information

Ralph Ruebner (Contact Author)
The John Marshall Law School ( email )
315 South Plymouth Court
Chicago, IL 60604
United States
Eugene Goryunov
Kirkland & Ellis LLP ( email )
Aon Center
200 East Randolph Drive
Chicago, IL 60601-6636
United States
The John Marshall Law School ( email )
315 South Plymouth Court
Chicago, IL 60604
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,323
Downloads: 50
Footnotes:  356

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.281 seconds