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Confrontation and the Murdered Witness

By Kent Scheidegger et al.

Although most of the attention today is on the Kennedy opinion, the case of Giles v. California will have a greater impact on the regular practice of criminal law. The case continues the reworking of the Confrontation Clause begun by Crawford v. Washington, 541 U.S. 36 (2004), looking more at what was admissible back in the common law days and less at what the Court thinks is fair today. The question is when a defendant can forfeit his right to confront the witness, thus allowing into evidence a prior unconfronted statement, by his own misconduct rendering the witness unavailable. In this case, the misconduct was to murder the witness. Specifically, the issue comes down to what mental state the defendant had for this wrongful act. The majority opinion by Justice Scalia goes for a narrow exception...continue to full post

Full post as published by Crime and Consequences on June 25, 2008 (boomark / email).