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87 Tex. L. Rev. 857 (2008-2009)
The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims

handle is hein.journals/tlr87 and id is 869 raw text is: Texas Law Review Volume 87, Number 5, April 2009 Articles The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims Tom Lininger* Under what circumstances does the accused forfeit the right to confront the accuser? In a domestic-homicide case, can the victim testify from the grave by means of hearsay statements preceding her death? Can the accused invoke the Sixth Amendment to insist upon cross-examination of a declarant whom he killed? On June 25, 2008, the Supreme Court issued a ruling in Giles v. California that restricted the doctrine of forfeiture by wrongdoing. Prior to Giles, most lower courts had determined that the accused forfeits confrontation rights by killing the hearsay declarant-even if the motive for the homicide was not to si- lence the victim as a trial witness. In Giles, the majority held that the accused does not forfeit confrontation rights by murdering the declarant, unless the ac- cused specifically intended to thwart the declarant's testimony. Merely killing the victim is no longer sufficient to extinguish the defendant's right to cross- examine that victim. As a bewildered Chief Justice Roberts commented, the Giles ruling gives batterers a great benefitfor killing their victims instead of merely injuring them. This Article examines the landscape of confrontation rights after Giles. The Article considers the theoretical underpinnings of the forfeiture doctrine, and presents a framework within which courts can analyze claims of forfeiture by wrongdoing. The framework provides practical guidance for assessing a defendant's intent to cause the unavailability of the declarant at trial, as required to prove forfeiture under Giles. This Article also proposes to amend * B.A., Yale; J.D., Harvard; Associate Professor of Law, University of Oregon. This Article benefited from the insights of Sarah Buel at the University of Texas, Dan Capra at Fordham, Jeff Fisher at Stanford, Richard Friedman at the University of Michigan, Laird Kirkpatrick at George Washington, Nancy Lemon at U.C. Berkeley, Linda Mills at N.Y.U., Joan Meier at George Washington, Robert Mosteller at Duke, Dan Richman at Columbia, Chris Sanchirico at the University of Pennsylvania, Deborah Tuerkheimer at the University of Maine, and Merle Weiner at the University of Oregon.

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