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
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
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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