Witness Intimidation and the 'Double Feature' of Hearsay and the Confrontation Clause, as Manifested in the Constitutional Forfeiture Doctrine and the Related Federal and State Hearsay Exceptions

Posted: 13 Jul 2010 Last revised: 29 Aug 2010

See all articles by Lynn McLain

Lynn McLain

University of Baltimore - School of Law

Date Written: April 7, 2008

Abstract

This paper was prepared as a handout for a presentation at the University of Baltimore School of Law.

Witness intimidation - up to and including murder - "strikes at the heart of the justice system itself." United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982). Without witnesses, without evidence, there can be no trials. Without the possibility of trials, the "law of the street" will supersede the law of the land.

Though retaliation as personal payback is as old as time, modem headlines seem to scream more frequently than before of murder and gang violence. Entire neighborhoods are cowed by the constant threat of retaliation against anyone who "snitches" - or against their loved ones. Families urge their concerned, law-abiding relatives who have witnessed a murder or other crime to "stay out of it": "Don't put yourself at risk - you can't bring [the victim] back."

If any of these folks have initially made statements to the police or prosecution, they often recant their statements at trial! or refuse to testify altogether. When they do not testify at trial, can their prior statements be admitted against a criminal accused? The answer: only if the statements first pass muster under the rules of evidence, and, if they do, if they also do not run afoul of the defendants' constitutional right to confront the witnesses against them. Even then, any conviction obtained must pass the final filter of the due process clause, under which verdicts based on unreliable evidence must be overturned.

Keywords: Witness Intimidation, rules of evidence, constitutional law, hearsay, civil law, criminal law, hearsay exception, impeachment of witnesses, forfeiture principle, confrontation right, Crawford v. Washington, Maryland law, Supreme Court, forfeiture of right to object, Giles v. California

JEL Classification: K19, K29, K39, K49

Suggested Citation

McLain, Lynn, Witness Intimidation and the 'Double Feature' of Hearsay and the Confrontation Clause, as Manifested in the Constitutional Forfeiture Doctrine and the Related Federal and State Hearsay Exceptions (April 7, 2008). Available at SSRN: https://ssrn.com/abstract=1639009 or http://dx.doi.org/10.2139/ssrn.1639009

Lynn McLain (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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