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

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