Loss of Sixth Amendment Confrontation Rights: Forfeiture Triggered by Voluntary Wrongful Conduct

Abstract

The hotly contested debate about the nature of confrontation rights of the criminally accused under the Sixth Amendment continues. The latest issue before the United States Supreme Court is whether intent to prevent live in-court testimony is a necessary element of the constitutional forfeiture analysis. A number of state courts, including the Supreme Court of California in People v. Giles, 152 P.3d 433, 440 (2007), cert. granted, 128 S.Ct. 976 (2008), have rejected the element of intent. Other courts, including the Illinois Supreme Court in People v. Stechly, 870 N.E.2d 333 (2007), have mandated the inclusion of the element of intent. The matter is now before the United States Supreme Court.

In this article, we argue that the inclusion of the element of intent into the forfeiture analysis under the Sixth Amendment is not supported by the English and American common law and that it is not constitutionally mandated. Some courts mistakenly believe that forfeiture by wrongdoing necessarily requires intent because they improperly link the doctrine to jurisprudence that analyzes forfeiture under the Federal Rules of Evidence. The direct consequence of this improper connection to evidentiary rules is that these courts confuse the constitutional notion of forfeiture with that of waiver. We argue that a showing of intent to prevent the testimony of an out-of-court declarant is not constitutionally required in determining whether an accused has forfeited his or her Sixth Amendment rights to confrontation and disagree with Professor James Flanagan's waiver analysis.

Keywords: sixth amendment, forfeiture, confrontation

JEL Classification: K1, K14, K41