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

Fall Submission Season

MLR’s Articles Office will open its fall submission season on Monday, August 18!  The Articles...

The Ninth Circuit's Treatment of Sexual Orientation: Defining “Rational Basis Review with Bite”

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional...

Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education

The United States has exhibited a strong commitment to public education throughout its history. The local...

War Is Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying...

Tariffication of the Coastwise Trade Laws

The coastwise trade laws prohibit foreign vessels and mariners from transporting goods or passengers...
MAILING LIST
Sign Up to Join Our Mailing List