December 2005 Vol. 104 No. 3 THE REVIEW

Expanding Forfeiture without Sacrificing Confrontation after Crawford

Joshua Deahl

The central holding of Crawford v. Washington is fairly straightforward: The Confrontation Clause bars the admission of out-of-court testimonial statements unless the defendant had a prior opportunity to cross-examine the witness. Crawford, however, has an often overlooked caveat. In renouncing numerous exceptions to the confrontation right, the Court rejected only those that purport to test the reliability of testimonial statements. It left equitable exceptions undisturbed. As the Court pointed out, “[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds.”

The parameters of the rule of forfeiture are a matter of some dispute. As opposed to a waiver, which requires a knowing and intelligent relinquishment of a right, forfeiture occurs when an individual commits an act inconsistent with maintaining a right. It has traditionally applied in witness-tampering cases, where a defendant intimidates, bribes or kills a witness just before she is scheduled to testify. In those situations, forfeiture should bar the defendant from successfully objecting to the admission of the witness’s prior unconfronted testimony.

   //  VIEW PDF
& Other Current Events

Cultivating Inclusion

Twenty-five years ago, law schools were in the developing stages of a pitched battle for the future of legal...

Aftermarketfailure: Windows XP's End of Support

"After 12 years, support for Windows XP will end on April 8, 2014." So proclaims a Microsoft website with...

Globally Speaking—Honoring the Victims' Stories: Matsuda's Human Rights Praxis

Globally speaking, international law and the vast majority of domestic legal systems strive to protect...

Toward A Multiple Consciousness of Language: A Tribute to Professor Mari Matsuda

I am thrilled to be part of this commemoration of the twenty-fifth anniversary of Professor Matsuda's...

House Swaps: A Strategic Bankruptcy Solution to the Foreclosure Crisis

Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans...
MAILING LIST
Sign Up to Join Our Mailing List