Forfeiture in the Domestic Violence Realm
Texas Law Review, Vol. 85, p. 49, 2007
7 Pages Posted: 18 Jan 2008
The doctrine of forfeiture as applied to domestic violence cases is just beginning to evolve in the wake of the reinterpreted Confrontation Clause. With the U.S. Supreme Court's recent grant of certiorari in California v. Giles, the question of how to import forfeiture principles to the domestic violence context has taken on new urgency.
In this essay, I argue that forfeiture decisions should reflect the ways in which battering is different from paradigmatic crime. In order for the equitable underpinnings of the rule to be realized, accurate conceptions of domestic violence must inform judicial reasoning. To illustrate how this premise may be operationalized, I examine each component of the prosecutor's burden of proof at a forfeiture hearing: (i) wrongdoing on the part of the defendant; and (ii) causing the declarant's unavailability as a witness. With respect to each inquiry, the dynamics of battering warrant an expanded conception of what is relevant to the court's determination. No separate rule of domestic violence forfeiture is needed; an adequate doctrine simply rejects the notion that a template applicable to violence between strangers can effectively respond to the particularities of violence between intimates. A reconceived framework represents a commitment to an informed jurisprudence of forfeiture, and an insistence that our law be compatible with the remediation of all types of crime.
Keywords: forfeiture, domestic violence, confrontation, Giles
JEL Classification: K!4, K19, K42, K49
Suggested Citation: Suggested Citation