Giles V. California: Avoiding Serious Damage to Crawford's Limited Revolution

22 Pages Posted: 5 Feb 2009 Last revised: 5 Nov 2009

See all articles by Robert P. Mosteller

Robert P. Mosteller

University of North Carolina School of Law


This Article endorses the result in Giles v. California, which limited the reach of the forfeiture through wrongdoing exception to those instances where “the defendant engaged in conduct designed to prevent the witness from testifying.” Largely for practical and policy reasons, I find this result important and proper. Given the apparently limited coverage of out-of-court statements by the confrontation doctrine under the testimonial statement approach, expansive application of the forfeiture doctrine could have gutted much of its already restricted protection.

I also briefly sketch where I believe the new confrontation doctrine that Crawford v. Washington produced stands in protecting the rights of defendants against problematic hearsay statements. My judgment is that these developments have been important and largely positive but limited in impact. Moreover, the mini-revolution that Crawford spawned appears to have largely run its course, and the more recent decision of the Court in Melendez-Diaz v. Massachusetts, which concluded that forensic certificates are testimonial, does not change that assessment.

Finally, Giles adds further evidence of the limited power of originalism to determine specific applications for the Confrontation Clause doctrine in a modern world that differs, both in legal structure and values, from the Framing era. Fortunately, the splintered decisions and analysis suggest that this misguided approach is losing its hold on the Court’s confrontation analysis and that pragmatic and policy concerns may play a stronger role on future developments in this area.

Keywords: Confrontation Clause, hearsay

Suggested Citation

Mosteller, Robert P., Giles V. California: Avoiding Serious Damage to Crawford's Limited Revolution. Lewis & Clark Law Review, Vol. 13, p. 675, 2009, UNC Legal Studies Research Paper No. 1337724, Available at SSRN:

Robert P. Mosteller (Contact Author)

University of North Carolina School of Law ( email )

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