Monday, March 05, 2007

A Flurry of Forfeiture Decisions

There have been three significant decisions on forfeiture within the last few weeks: U.S. v. Martinez, 2007 WL 489217 (D.C.Cir. Feb 16, 2007); State v. Jensen, 2007 WL 543053, 2007 WI 26, Wis., February 23, 2007 (No. 2004AP2481-CR.), and, just today, People v. Giles (Ca. Mar. 5, 2007). I hope to post comments on all three (and also on Whorton) within a few days.


Sean said...

The concepts surrounding the Confrontation Clause are relatively new to me, but I have some thoughts on the Crawford decision, the Giles decision, and its effect on the introduction of “testimonial” statements made by child victims. I support the Giles decision and I am hopeful that it will relieve children from the future harm of having to testify at trial if it is something they are not emotional capable of doing.

The parameters of the forfeiture exception in California now appear to be that the unavailability should be genuine and caused by the defendant’s intentional criminal act, a forfeiture finding must be based on corroborative evidence independent from the unavailable witness’s unconfronted testimony, defendant’s wrongdoings need not have been done with the specific intent of preventing the witness from testifying, and the rule applies even when the alleged wrongdoing is the same as the offense for which the defendant is on trial.

I’m guessing that the result of this decision will be to make it much, much easier for California prosecutors to enter in “testimonial” statements made by children (assuming a traditionally, recognized hearsay exception applies). The trickiest part will be to come up with corroborative evidence, but once this hurdle is overcome, I can’t imagine that it would be that difficult to convince a judge by a preponderance of the evidence that the defendant’s actions (sexual abuse, physical abuse, etc.) resulted in the child victim being emotionally and mentally incapable of re-hashing such abuses in the criminal trial format.

An extension of the forfeiture rule in this manner, I believe, will serve the duel purpose of disallowing child abusers from benefiting from their own bad acts and foster the compelling state interest in protecting child victims from further harm.

Do you agree with me that Giles makes the application of forfeiture much easier in the context of child abuse cases? If so, what if any roadblocks still exist, preventing a child’s “testimonial” statement getting in?

Anonymous said...

I largely support the Giles decision as well, but I wanted to address two points.

First, I believe the California Supreme Court made a mistake by requiring the wrongdoing to have been a criminal act. This interpretation is not only contrary to the equitable basis for the doctrine, it is also inconsitent with prior forfeiture jurisprudence. In Reynolds v. United States, for example, the the defendant's conduct was not a crime in the territory at that time, nor was there any discussion about whether his behavior was criminal.

With respect to children's testimony, I think it is necessary to excerise caution. While this ruling allows California courts to consider a defendant to have forfeited his confrontation right by the abuse for which he is on trial, it does not relax the inquiry into whether a witness is truly unavailable. As much as I think we would all love to spare children who have been traumatized from testifying, where a child can testify--even if special accommodations need to be made--live testimony should be required.