Forfeiture of the Confrontation Right in Giles: Justice Scalia’s Faint-Hearted Fidelity to the Common Law

54 Pages Posted: 4 Jul 2010 Last revised: 26 Oct 2011

Date Written: May 10, 2010


In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued a third Confrontation Clause opinion in its Crawford line of cases. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” The Court’s decision purports to hold that a defendant does not forfeit his Sixth Amendment confrontation right when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial, unless the judge finds that the defendant’s wrongful act was done with an intent to make the witness unavailable to testify. Justice Scalia’s majority opinion interprets intent to require purpose, only recognizing the forfeiture by wrongdoing exception to Sixth Amendment’s confrontation requirement when the defendant “engaged in conduct designed to prevent the witness from testifying."

In this Article, I demonstrate that the historical sources do not point unequivocally to the conclusion Justice Scalia reaches in his majority opinion. Further, given the fragmented opinions of the justices in the case, I argue that the reasoning of the case should be construed on the narrowest grounds of commonality among the Justices. In so doing, courts should examine intent in a more expansive way in light of the common law, rather than in the rigid way described in Justice Scalia’s opinion. Especially in domestic violence, gang-related, and other cases involving complex relationship dynamics between the defendant and the witness, a defendant’s conduct that knowingly leads to the witness’s unavailability can and should still trigger forfeiture, even if there is no overt purposive intent.

Keywords: Evidence, Constitutional Law, Criminal Procedure, Confrontation Clause, Hearsay, Sixth Amendment

Suggested Citation

Yee, Ellen L., Forfeiture of the Confrontation Right in Giles: Justice Scalia’s Faint-Hearted Fidelity to the Common Law (May 10, 2010). Journal of Criminal Law and Criminology, Vol. 100, No. 4, 2010, Drake University Law School Research Paper No. 11-11, Available at SSRN:

Ellen L. Yee (Contact Author)

Drake University Law School ( email )

2507 University Avenue
Des Moines, IA 50311
United States
515-271-1914 (Phone)


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