New L&C Law Scholarship: Forfeiture and Cross-Examination
October 8th, 2009Robert Kry, Forfeiture and Cross-Examination, 13 Lewis & Clark Law Review 577 (2009)
The forfeiture exception to the confrontation right allows the admission of a witness’s prior testimony where the defendant wrongfully procures the witness’s absence from trial. But did the common-law forfeiture exception justify admitting any statements previously made by the witness? Or did it justify admitting only the witness’s prior cross-examined testimony (thus denying the defendant only the opportunity to cross-examine the witness at trial )? Although not the principal issue decided by the Supreme Court in Giles v. California, this question spawned a lively debate, with the majority taking the former view and the dissent the latter. I argue that, although some evidence supports the majority’s position, other evidence supports the narrower view that forfeiture justified admitting only a witness’s prior cross-examined testimony. I nonetheless argue that the dissent drew the wrong conclusion from that history. Forfeiture’s arguable status as a narrow exception for prior crossexamined testimony was a further reason to reject the California Supreme Court’s extension of the doctrine in Giles.
(abstract from Lewis & Clark Law Review)
