Volume 13 / Number 3 / Fall 2009



We Have a “Purpose” Requirement If We Can Keep It

James F. Flanagan

The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the “purpose” requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by long- standing precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is narrow, other victim hearsay often is available, and prosecutors have proven “purpose” for decades. Nevertheless, the purpose requirement of Giles, and ultimately Crawford’s protection of the Confrontation Clause, will be undermined unless the courts require strict “but for” proof of the reason for the witness’s absence, including proof that the witness did not have independent personal reasons for avoiding testifying. The government’s good faith obligation to produce witnesses must be strengthened to avoid making forfeiture so easy that there is a perverse incentive to rely on it, rather than diligently seeking and producing witnesses. The author concludes by identifying the problems in using expert testimony to infer causation only from a prior history of domestic discord.

Forfeiture and Cross Examination

Robert Kry

The forfeiture exception to the confrontation right allows the admission of a witness’s prior testimony where the defendant wrongfully procures the witness’s absence from trial. But did the common-law forfeiture exception justify admitting any statements previously made by the witness? Or did it justify admitting only the witness’s prior cross-examined testimony (thus denying the defendant only the opportunity to cross-examine the witness at trial)? Although not the principal issue decided by the Supreme Court in Giles v. California, this question spawned a lively debate, with the majority taking the former view and the dissent the latter. I argue that, although some evidence supports the majority’s position, other evidence supports the narrower view that forfeiture justified admitting only a witness’s prior cross-examined testimony. I nonetheless argue that the dissent drew the wrong conclusion from that history. Forfeiture’s arguable status as a narrow exception for prior cross- examined testimony was a further reason to reject the California Supreme Court’s extension of the doctrine in Giles.

Selective Originalism: Sorting Out Which Aspects of Giles’s
Forfeiture Exception to Confrontation Were or Were Not
“Established at the Time of the Founding”

Thomas Y. Davies

In Giles v. California (2008), as previously in Crawford v. Washington (2004), Justice Scalia’s majority opinion purported to follow the Framers’ design for the Confrontation Clause. Giles did comport with the framing-era right insofar as it limited the forfeiture exception to confrontation to instances in which a criminal defendant had engaged in deliberate witness-tampering (although the opinions in Giles endorsed a loose notion of deliberateness). However, a review of the history of the confrontation right and forfeiture reveals that Giles departed from the common-law right in fundamental ways.

In framing-era law, forfeiture applied only to the sworn testimony that a witness who was kept away from trial by the defendant had previously given under the Marian statutes. Moreover, only the sworn and confronted prior testimony of an unavailable witness was admissible under forfeiture during the nineteenth century and most of the twentieth century. Unsworn and unconfronted hearsay statements of the sort at issue in Giles were never admissible under forfeiture until the latter part of the twentieth century—and then were allowed under the reliability formulation of confrontation that Crawford rejected as a totally inadequate formulation of the right. Thus, a genuine originalist analysis would have undermined the constitutionality of current Federal Rule of Evidence 804(b)(6).

Additionally, all of the opinions in Giles persisted in endorsing Crawford’s completely fictional claim that the original confrontation right regulated only “testimonial” hearsay, but did not apply at all to “nontestimonial” hearsay—notwithstanding that Justice Scalia made several assertions in Giles that undercut that pretended distinction. For example, he acknowledged that the general ban against hearsay arose from the same roots as the confrontation right itself. Nevertheless, dicta in Giles indicates that the justices intend to narrowly confine “testimonial” hearsay, and thus the confrontation right itself, to only those hearsay statements made to government officers, but to exempt all other hearsay as “nontestimonial,” including even statements made to physicians or nurses involved in gathering evidence for domestic violence prosecutions. In sum, the purported originalism in Giles was so selective it did not amount to originalism at all.

Giles v. California: Avoiding Serious Damage
to Crawford’ s Limited Revolution

Robert P. Mosteller

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.

Making Constitutional the Permissive Inference in Giles v. California: Changing the Intent to Silence from “Purposely” to “Knowingly”

Douglas E. Beloof

It is suggested here that the element of “purposely” silencing a witness that is presently required by the Giles majority as a predicate to forfeiture by wrongdoing, be changed to “knowingly” silencing a witness. This solution resolves the equitable problem of “near circularity” identified by Justice Souter while resolving Justice Breyer’s concerns about inferring “purpose” to silence from a classic abusive relationship.

Forfeiture After Giles: The Relevance of “Domestic Violence Context”

Deborah Tuerkheimer

Giles v. California, the United States Supreme Court’s most recent pronouncement impacting the prosecution of domestic violence, has exposed deep judicial ambivalence about the newly transformed Confrontation Clause. This Article endeavors to guide lower courts in the task of implementation and to chart a course for the evolution of prosecutorial treatment of battering, concluding that Giles represents a significant opportunity for those concerned about the constraints Crawford v. Washington and Davis v. Washington had seemed to place on the prosecution of abuse. For the first time, the Court has identified “the domestic violence context” as a relevant construct, thereby compelling lower courts to grapple with the particularities of violence between intimates. This is a remarkable shift in relatively short order, and it allows us to glimpse the possibility of a jurisprudence informed by the realities of battering.

Giled v. California: A Personal Reflection

Richard D. Friedman

In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. But this view of forfeiture now appears to be foreclosed by the decision in Giles that the accused does not forfeit the right unless his conduct was designed to render the victim unavailable as a witness. One justification offered for the result in Giles is the near circularity of holding that the accused forfeited the confrontation right on the basis of the same misconduct with which he is charged. This coincidence of issues should not be regarded as a genuine problem—any more than when, in a conspiracy prosecution, the judge admits a statement on the ground that it was made by a conspirator of the accused. Another justification offered by the majority was equity—an unpersuasive ground when the reason the accused cannot examine the witness is that he murdered her, albeit for some reason other than preventing her testimony at trial. And finally, the majority contends that the imminence requirement of the dying declaration exception would have been without force if forfeiture doctrine had been broad enough to apply to cases of statements by victims who did not appear to be on the verge of death at the time. Professor Friedman contends that the imminence requirement can be understood as marking the boundary of cases in which the prosecution has a duty of mitigation—that is, a duty to try to preserve so much of the confrontation right as reasonably possible given the situation created by the accused’s misconduct. He also argues that over the long term the decision in Giles may turn out to weaken the Confrontation Clause—by encouraging manipulation of existing doctrine, by discouraging adoption of a doctrine of mitigation, and by complicating the structure of the confrontation right.



Removing the Dead Hand on the Future:
Recognizing Citizen Children’s Rights Against Parental Deportation

Alison M. Osterberg

Current immigration laws do not provide the opportunity for undocumented, noncitizen parents to lawfully remain in the United States even when the noncitizen is the parent of a minor citizen child. This sends a demoralizing message about the value of family and the meaning of citizenship. It also ignores the difficulties and burdens placed on citizen children who may be forced to return to their parents’ country of origin, should their parents be deported. To remedy this dilemma, advocates have urged the recognition of substantive due process rights of citizen children whose parents are subject to deportation. However, nearly every circuit has rejected the existence of such rights. Part I of this Comment addresses how the current debate over this issue evolved. Two main theories advocating for the rights of citizen children whose parents face deportation have been used. The first, a cost benefit analysis, effectively limits relief from removal on a case-by-case basis. On the other hand, the second main theory, substantive due process, would greatly reduce Congress’s ability to place such a burden on minor citizen children. Part II of the Comment advocates that the right of citizen children to be raised by their noncitizen parents is deserving of substantive due process protection. The Supreme Court has ruled that when rights of children conflict with government objectives, recognition must be given to the substantive rights of children. Part III discusses how the recognition of the rights of citizen children will not undermine current immigration laws.

Adoption of the Uniform Collaborative Law Act in Oregon:
The Right Time and the Right Reasons

Patrick Foran

Traditional litigation is increasingly viewed as a costly and embittering way of resolving domestic relations disputes. Collaborative law is an alternative to the adversarial system, which tends to escalate disputes and create negative outcomes for children. Parties engaging in a collaborative law process consult with lawyers and experts as a means to reach settlement, rather than prepare for litigation. Although collaborative law is currently practiced throughout the United States, Canada, Australia, and Europe, it is not governed by a uniform set of laws. The Uniform Collaborative Law Act, drafted by the National Conference of Commissioners on Uniform State Laws, is a reaction to the growth of collaborative law practice in the United States and attempts to provide uniformity. This Comment provides an overview of the practice of collaborative law and of Oregon domestic relations law, outlines the UCLA, and encourages Oregon to adopt the UCLA.

A Critical Look at the H-1B Visa Program and Its Effects
on U.S. and Foreign Workers—A Controversial Program
Unhinged from Its Original Intent

Christopher Fulmer

The H-1B visa program was designed to encourage the immigration of exceptionally talented people, and today the demand for H-1B visas is staggering. However, critics of the H-1B visa program argue that the loopholes in the current law allow employers to misuse the program by hiring foreign works at less than market wages for jobs that could easily be filled by American workers. This Article lays out a statutory framework of the H-1B program and its weaknesses, as well as an explanation of the strong political and human forces involved in this highly polarized debate. Last, this Article suggests amendments to the current H-1B program to curb abuse while still allowing American companies to recruit the “best and brightest” minds from around the world.