Document Type

Article

Publication Date

2009

Abstract

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 ifforfeiture 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.

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