Putting Forfeiture to Work
University of California-Davis Law Review, Vol. 43, p. 1295, 2010
165 Pages Posted: 23 Jul 2010
Date Written: 2010
Intimate partner violence (“IPV”) victims are increasingly turning to the courts for help, too often with poor results. Successful witness tampering by offenders sabotages the court system by silencing victims through an array of unlawful conduct, including coercion and violence. The doctrine of forfeiture by wrongdoing should afford a viable solution, but several obstacles constrain its efficacy. Much confusion exists regarding witness tampering and forfeiture law as a result of the recent trilogy of the Crawford, Davis, and Giles Supreme Court decisions. Their cumulative effect is decreased doctrinal uniformity within a perplexing scheme that is difficult to implement. The resulting uncertainty contributes to massive ongoing underenforcement of witness tampering laws and conflicting interpretations of forfeiture doctrine. In response, this Article advances two main arguments: first, the forfeiture doctrine’s application in IPV cases has been woefully inadequate; and second, a more robust notion of forfeiture is needed to clarify and empower the intent-to-silence calculus. A pernicious backlash by legal stakeholders against IPV victims further taints the process, as does the frequent and system-wide minimization of victim harm. This Article locates the courts’ ambivalence in community norms that must evolve to ensure forfeiture can be the remedy its drafters intended. A more vigorous forfeiture doctrine will further the legislative intent of offender accountability coupled with victim protection and resuscitate the law’s crucial signaling aspect. IPV victims’ rights will not be internalized unless the legal paradigm on forfeiture is coherent and committed to both formal and substantive equality.
Keywords: Intimate partner violence, forfeiture, witness tampering
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