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.

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