Abstract
One of the few common law exceptions to the rule that every criminal defendant enjoys the right to “be confronted with the witnesses against him” is if the defendant has deliberately caused a witness’s unavailability. That a defendant could forfeit his confrontation rights through his own wrongdoing developed from the equitable concept that “no man shall profit from his wrong.” When the Supreme Court narrowed the common law doctrine of forfeiture by wrongdoing in Giles v. California, it seemed like it had dealt a serious blow to the prosecution of domestic homicide cases. Rather than being able to introduce a murdered victim’s out-of-court statements if it could be shown that the defendant had intentionally caused her absence, the Court now required a showing that the defendant caused the victim’s unavailability as a witness with the specific intent of preventing her from testifying. In an earlier article, I argued that this ruling would only affect domestic violence cases. Forfeiture arguments come up in homicide trials when a murder victim has made previous testimonial statements about the defendant. This issue arises in only two circumstances: when the victim has witnessed another crime committed by the defendant, or when the victim is subject to domestic abuse at the hands of the defendant. In cases of witness intimidation or elimination, there is no difficulty in making the showing of intent to prevent them from testifying, because there’s rarely another reason for the murder.
Recommended Citation
Caren M. Morrison,
Forfeiture by Wrongdoing in Domestic Homicide Cases: Where Are We Now?,
57
U. Mich. J. L. Reform
885
(2024).
Available at:
https://repository.law.umich.edu/mjlr/vol57/iss4/11
