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

51 Pages Posted: 13 Mar 2008  

Ralph Ruebner

The John Marshall Law School

Eugene Goryunov

Kirkland & Ellis LLP; The John Marshall Law School

Date Written: March 10, 2008

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

Suggested Citation

Ruebner, Ralph and Goryunov, Eugene, Loss of Sixth Amendment Confrontation Rights: Forfeiture Triggered by Voluntary Wrongful Conduct (March 10, 2008). Available at SSRN: https://ssrn.com/abstract=1104720 or http://dx.doi.org/10.2139/ssrn.1104720

Ralph Ruebner (Contact Author)

The John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

Eugene Goryunov

The John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

Kirkland & Ellis LLP ( email )

Aon Center
200 East Randolph Drive
Chicago, IL 60601-6636
United States

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