The sound of silence: Holding batterers accountable for silencing their victims

Texas Law Review

Volumn 87, Issue 5, 2009, Pages 857-912

  Lininger, Tom ^a  

^a NONE

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EID: 66349129830     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (235)

1. Appellant's Opening Brief at 119-21, 136, People v. Streeter, No. S078027, 2008 WL 2805905 (Cal. June 30, 2008).
2. Id. at 120-21.
3. Id. at 121.
4. Id.
5. Killer Gets Death Penalty, FRESNO BEE, Apr. 2, 1999, at A15.
6. Appellant's Opening Brief, supra note 1, at 92.
7. Id. at 97.
8. Id. at 91.
9. Id. at 105-06. Among other statements, the application for the restraining order indicated that Streeter had threatened to beat the applicant, had attempted to rape her, and had pulled her hair out of her scalp. Id.
10. Id. at 106, 109.
11. Id. at 106.
12. Id. at 109.
13. People v. Banos, No. B194272, 2008 WL 223824, at *l-2 (Cal. Ct. App. Jan. 29, 2008), vacated, 129 S. Ct. 163 (2008).
14. Id. at *2.
15. See id. (noting that when Banos arrived at the victim's apartment "[h]e did not then know that she was with [another man] and he did not intend to kill her").
16. Id. at *1; Eugene Tong, Cop Recalls Bloody Crime Scene; Defense Admits Woman's Killing, Denies It Was Murder, L.A. DAILY NEWS, Aug. 10, 2006, at N3. The victim had obtained this restraining order ten months before her death. Id. The defendant was on probation for the prior domestic violence at the time of the presently charged offense. Id.
17. Banos, 2008 WL 332824, at *3.
18. Id. at *4.
19. Tom Kertscher, Jensen Gets Life, No Parole, MILWAUKEE J. SENTINEL, Feb. 28, 2008, at IB.
20. Tom Kertscher, Jensen Guilty of Homicide, MILWAUKEE J. SENTINEL, Feb. 22, 2008, at 1 A.
21. Carrie Antlfmger, Dead Victim's Letter is Key, WlS. ST. J., Jan. 2, 2008, at B1.
22. State v. Jensen, 727 N.W.2d 518, 521-22 (Wis. 2007); Antlfmger, supra note 21, at B1.
23. Jensen, 727 N.W.2d at 521-22.
24. Id. at 536.
25. People v. Younger, No. A110031, 2007 WL 1848976, at *1 (Cal. Ct. App. June 28, 2007), vacated, 128 S. Ct. 2994 (2008).
26. Id. at z.ast;2.
27. Id. In this statement, she indicated that Younger had raped her, choked her, and threatened to kill her. People v. Younger, 101 Cal. Rptr. 2d 624, 627 (Cal. Ct. App. 2000).
28. Younger, 2007 WL 1848976, at *2-3.
29. Id. at *5.
30. Emily Gumon, Man Loses Appeal in Wife's Murder, ST. PAUL PIONEER PRESS, May 30, 2008, at B5.
31. State v. Her, 750 N.W.2d 258, 263 (Minn. 2008), vacated, Her v. Minnesota, 129 S. Ct. 929 (2009); Gumon, supra note 30, at B5.
32. Stefano Esposito & Shamus Toomey, Diligent Escort Service Leads Cops to Murder Suspect, CHI. SUN-TIMES, July 26, 2004, at 24.
33. Her, 750 N.W.2d at 264-65.
34. Id. at 263.
35. Id. at 264-65.
36. Id. at 274.
37. The Supreme Court first articulated this doctrine in Reynolds v. United States, 98 U.S. 145, 158 (1878). There, the Court held, "[I]f a witness is absent by [a defendant's] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away." Id.
38. E.g., State v. Sanchez, 177 P.3d 444, 456 (Mont. 2008) (observing that the forfeiture doctrine "derives from the maxim that no person should benefit from the person's own wrongdoing").
39. Richard Friedman, Confrontation and the Definition ofChutzpa, 31 ISR. L. REV. 506, 506 (1997).
40. See Myrna S. Raeder, Domestic Violence Cases After Davis: Is the Glass Half Empty or Half Full?, 15 J.L. & POL'Y 759, 779 (2007) (generalizing courts' approval of "the use of forfeiture in murders implicating domestic violence without requiring any intent to prohibit [victims] from testifying at trial"). For more discussion of lower-court opinions on this subject preceding the Supreme Court's ruling in Giles, see infra subpart I(C).
41. See Sanchez, Ml P.3d at 456 ("The natural result of a deliberate killing is always that the victim is unavailable to testify.").
42. See infra subpart I(C).
43. People v. Costello, 53 Cal. Rptr. 3d 288, 302 (Cal. Ct. App. 2007).
44. Transcript of Oral Argument at 18, Giles, 128 S. Ct. 2678 (No. 07-6052).
45. 541 U.S. 36 (2004).
46. See infra subpart I(B).
47. See United States v. Gray, 405 F.3d 227, 242 (4th Cir. 2005); United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999); United States v. White, 116 F.3d 903, 911 (DC. Cir. 1997) (all recognizing that the forfeiture exception prevents defendants from benefiting from their wrongdoing by preventing a witness's testimony).
48. See infra subpart II(D).
49. See infra subpart HI(A).
50. In three of these cases (Banos, Her, and Streeter), the Government's evidence indicated that the defendants killed victims who had applied for restraining orders shortly before their deaths. People v. Banos, No. B194272, 2008 WL 223824, at *2-3 (Cal. Ct. App. Jan. 29, 2008); State v. Her, 750 N.W.2d 258, 262-63 (Minn. 2008); Appellant's Opening Brief, supra note 1, at 104-10. In the Younger case, the prosecution's evidence indicated that the victim had filed a complaint against the defendant and thereby initiated a prosecution six months before her death. People v. Younger, 101 Cal. Rptr. 2d 624, 627-32 (Cal. Ct. App. 2000). lbs Jensen case would provide the most difficult challenge for prosecutors using the framework proposed in this Article. Perhaps some evidence that the defendant had purposefully isolated the victim (e.g., by monitoring her phone calls) would be sufficient to extinguish his confrontation right. See State v. Jensen, 727 N.W.2d 518, 528-29 (Wis. 2007).
51. See infra subpart IV(B) and Appendix.
52. On January 6, 2009, Senator Diane Feinstein (D-CA) introduced Senate Bill 132, the Gang Abatement and Prevention Act of 2009, which included language in Title II, § 205, directing the Judicial Conference to "study the necessity and desirability of amending section 804(b) of the Federal Rules of Evidence to permit the introduction of statements against a party by a witness whohas been made unavailable where it is reasonably foreseeable by that party that wrongdoing would make the declarant unavailable." Gang Abatement and Prevention Act, S. 132, 11 lth Cong. § 205 (2009). The full text of the bill is also available at http://www.govtrack.us/congress/billtext.xpd7bill =sl 11-132.
53. Somewhat ironically, while Giles was pending before the U.S. Supreme Court, the Illinois Legislature considered a bill to establish a hearsay exception for forfeiture that would be more favorable to the prosecution than Federal Rule 804(b)(6). Even after the Giles ruling tightened the constitutional forfeiture doctrine to be more or less coextensive with Federal Rule 804(b)(6), the Illinois Legislature passed this bill, which became 725 ILL. COMP. STAT. 5/115-10.2a (2006). Erika Slife, Allies of Stacy Peterson Hail Bill: Plan to Ease Hearsay Limits is Heading to Blagojevich, CHI. TRIB., July 11, 2008, at 3. The California Legislature also considered a bill to codify the forfeiture doctrine. Assem. B. 268, 2007 Leg., Reg. Sess. (Cal. 2007), available at http://info.sen. ca.gov/pub/07-08/bill/asm/ab-0251-0300/ab- 268-bill-20070409-amended-asm-v98.html.
54. Giles v. California, 128 S. Ct. 2678, 2693 (2008).
55. See infra subpart I(A).
56. See infra subpart I(B).
57. See infra subpart I(C).
58. Sharon G. Portwood & Julia Finkel Heany, Responding to Violence Against Women: Social Science Contributions to Legal Solutions, 30 INT'L J.L. & PSYCHIATRY 237, 237 (2007).
59. Id. at 237-38.
60. Johnson, supra note 54, at A2.
61. See, e.g., NEIL WEBSDALE, UNDERSTANDING DOMESTIC HOMICIDE 2-3 (1999) (defining "domestic homicide," by reference to Florida law, as violence between "household members," but also including violence between boyfriends and girlfriends who neither live together nor have a child in common).
62. Johnson, supra note 54, at A2; Jeffrey L. Todahl et al., A Qualitative Study of Intimate Partner Violence Universal Screening by Family Therapy Interns: Implications for Practice, Research, Training, and Supervision, 34 J. MARITAL & FAM. THERAPY 28, 28 (2008).
63. MATTHEW R. DUROSE ET AL., BUREAU OF JUSTICE STATISTICS, FAMILY VIOLENCE STATISTICS: INCLUDING STATISTICS ON STRANGERS AND ACQUAINTANCES l, 17-19 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/fvs.pdf (noting that 81% of all persons killed by their spouses were wives and that 83% of spouse murderers were men).
64. JAMES ALAN FOX & MARIANNE W. ZAWITZ, BUREAU OF JUSTICE STATISTICS, HOMICIDE TRENDS IN THE UNITED STATES: INTIMATE HOMICIDES 55 (2007), http://www.ojp.usdoj.gov/bjs/ homicide/tables/intproptab.htm (showing that homicides committed against "intimates" made up 26.1% of all homicides involving female victims in 1995, compared with 33.3% in 2005).
65. Alafair S. Burke, Domestic Violence as a Crime of Pattern and Intent: An Alternative Reconceptualization, 75 GEO. WASH. L. REV. 552, 569, 568-72 (2007) (citing empirical evidence and noting widespread agreement among social scientists that "domestic violence is about gaining control over another person"); Deborah Tuerkheimer, Recognizing and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence, 94 J. CRIM. L. & CRIMINOLOGY 959, 963-64 (2004) (identifying a desire for control as the primary motive behind domestic abuse); Jennifer Gentile Long, Prosecuting Intimate Partner Sexual Assault, PROSECUTOR, Apr.-May-June 2008, at 20, 21 ("All violent relationships include some level of control or attempt on the batterer's part to control his partner.").
66. Richard B. Felson & Steven F. Messner, The Control Motive in Intimate Partner Violence, 63 SOC. PSYCHOL. Q. 86, 91 (2000).
67. Id.
68. Id. at 86.
69. Portwood & Heany, supra note 71, at 239.
70. Todahl et al., supra note 75, at 28.
71. Tuerkheimer, supra note 78, at 971 (arguing that criminal law misapprehends domestic violence due to its "narrow temporal lens" and "limited conception of harm"). Tuerkheimer has proposed a statutory scheme that would criminalize a "course of conduct" that the defendant "knows or reasonably should know" would likely "result in substantial power or control" over a family or household member. Id. at 1019-20.
72. DONALD G. DUTTON, THE DOMESTIC ASSAULT OF WOMEN: PSYCHOLOGICAL AND CRIMINAL JUSTICE PERSPECTIVES 112 (1995).
73. PATRICIA TJADEN & NANCY THOENNES, U.S. DEP'T OF JUSTICE, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 9-11 (2000), available at http://www.ncjrs.gov/pdffilesl/nij/181867.pdf (presenting findings based on a telephone survey involving thousands of respondents).
74. Data from fifteen large urban counties indicate that 26.4% of domestic violence arrestees have a current criminal justice status. ERICA SMITH ET AL., BUREAU OF JUSTICE STATISTICS, STATE COURT PROCESSING OF DOMESTIC VIOLENCE CASES 5 (2008), available at http://www.ojp. usdoj.gov/bjs/pub/pdf/scpdvc.pdf.
75. Randal B. Fritzler & Leonore M.J. Simon, Creating a Domestic Violence Court: Combat in the Trenches, CT. REV., Spring 2000, at 33.
76. See KELLY DEDEL, U.S. DEP'T OF JUSTICE, WITNESS INTIMIDATION 2,5 (2006), available at http://www.popcenter.org/problems/PDFs/witness- intimidation.pdf (indicating that witness intimidation is primarily associated with domestic violence and organized crime and discussing the increasing prevalence of such intimidation). Compare DUROSE, supra note 76, at 26 (reporting that nearly 10% of victims did not report domestic violence from 1998 to 2002 due to fear of retaliation), with LAURENCE A. GREENFIELD ET AL., BUREAU OF JUSTICE STATISTICS, VIOLENCE BY INTIMATES: ANALYSIS OF DATA ON CRIMES BY CURRENT OR FORMER SPOUSES, BOYFRIENDS, AND GIRLFRIENDS 19 (2008), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/vi.pdf (reporting that this number was 7% for the period 1992 to 1996).
77. DEDEL, supra note 89, at 8 ("Victims of domestic violence appear to be at an elevated risk for retaliation ⋯ ").
78. Tonya McCormick, Note, Convicting Domestic Violence Abusers when the Victim Remains Silent, 13 BYU J. PUB. L. 427, 433 (1999) ("Studies have shown that the time of greatest danger for an abused woman occurs when she leaves her husband or partner.").
79. Richard B. Felson et al., Reasons for Reporting and Not Reporting Domestic Violence to the Police, 40 CRIMINOLOGY 617, 640 (2002) (identifying fear of reprisals as an inhibitory factor, along with other concerns such as privacy and the desire to protect the offender); Richard B. Felson & Paul-Philippe Pare, The Reporting of Domestic Violence and Sexual Assault by Nonstrangers to the Police, 67 J. MARRIAGE & FAM. 597, 607 (2005) ("If the offender was a partner, victims were more likely to fear reprisal and to think that the police could not do anything to help.").
80. The California Supreme Court cited expert testimony that "[a]bout 80 to 85 percent of victims 'actually recant at some point'" in prosecutions of domestic violence. People v. Brown, 94 P.3d 574, 576 (Cal. 2004) (quoting Jeri Darr, program manager of the Antelope Valley Domestic Violence Council); accord Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims' Out of Court Statements as Substantive Evidence, 11 COLUM. J. GENDER & L. 1,3 (2002) (offering similar anecdotal evidence); Lisa Marie De Sancitis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 YALE J.L. & FEMINISM 359, 367 (1996) (discussing the high rate of noncooperation by victims).
81. Donald J. Rebovich, Prosecution Response to Domestic Violence: Results of a Survey of Large Jurisdictions, in DO ARRESTS AND RESTRAINING ORDERS WORK? 176, 190 (Eve S. Buzawa & Carl G. Buzawa eds., 1996).
82. See Robert C. Davis, Victim/Witness Noncooperation: A Second Look at a Persistent Phenomenon, 11 J. CRIM. JUST. 287, 288 (1983) (reporting that the nonparticipation of victims resulted in the dismissal of 60% of domestic violence prosecutions in New York City's criminal courts).
83. Johnson, supra note 54, at A2.
84. For examples of such statutes, see Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. REV. 747, 752 n.31 (2005).
85. Cheryl Hanna has analyzed and critiqued "no-drop" policies in her influential article in the Harvard Law Review. See Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849 (1996).
86. Andrew King-Ries, An Argument for Original Intent: Restoring Rule 801(d)(l)(A) to Protect Domestic Violence Victims in a /W-Crawford World, 27 PACE L. REV. 199, 200 (2007) (noting that Crawford v. Washington, 541 U.S. 36 (2004), "dramatically hobbled prosecution of domestic violence offenses").
87. 541 U.S. 36 (2004).
88. Id. at 53-54.
89. Id. at 50-52; Davis v. Washington, 547 U.S. 813, 822 (2006).
90. Matthew Mangino, Protecting Victims of Abuse: Confrontation Right May Jeopardize Safety of Children, Domestic Violence Victims, http://www. mattmangino.com/passing/view-blog.cfm?id=8 (expressing the opinion of the author, a district attorney, that evidence-based prosecutions could be "obsolete" after Crawford); Andrew King-Ries, Crawford v. Washington: The End ofVictimless Prosecution?, 28 SEATTLE U. L. REV. 301, 318 (2005). Empirical evidence verifies that prosecutors' use of testimonial hearsay in prosecutions of domestic violence decreased substantially after Crawford. Id. at 821.
91. Tom Lininger, Bearing the Cross, 74 FORDHAM L. REV. 1353, 1365 (2005).
92. Id. at 1366.
93. Id.
94. Lininger, supra note 97, at 749-50.
95. See King-Ries, supra note 99, at 230 (observing that Crawford has heightened the need for testimony of accusers while simultaneously diminishing the state's ability "to counter the defendant's intimidation and coercion of the victim"); Jeanine Percival, Note, The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington, 79 S. CAL. L. REV. 213, 242 (2005) (contending that Crawford endangered the safety of victims in domestic violence prosecutions by making the victims' testimony crucial); Michael Rips & Amy Lester, When Words Bear Witness, N.Y. TIMES, Mar. 20, 2006, at A23 (indicating that, in many jurisdictions, Crawford made victims less safe).
96. Lininger, supra note 97, at 821.
97. Lininger, supra note 104, at 1365 n.70 (discussing the example of a prosecutor jailing accusers before trial); Rips & Lester, supra note 108, at A23 (criticizing the practice of jailing accusers pending trial in domestic violence prosecutions).
98. See Lininger, supra note 97, at 806-12 (2005) (urging prosecutors to invoke the forfeiture doctrine in domestic violence cases); Deborah Tuerkheimer, Crawford's Triangle: Domestic Violence and the Right of Confrontation, 85 N.C. L. REV. 1, 34-35 (2006) (stressing the importance of the forfeiture doctrine to the prosecution of domestic violence cases); Long, supra note 78, at 21 ("All violent relationships include some level of control or attempt on the batterer's part to control his partner."). But see James E. Flannagan, Foreshadowing the Future of Forfeiture/Estoppel by Wrongdoing: Davis v. Washington and the Necessity of the Defendant's Intent to Intimidate the Witness, 15 J.L. & POL'Y 863, 885-903 (2007) (cautioning against an expansive interpretation of the forfeiture doctrine).
99. Brief of Richard D. Friedman as Amicus Curiae in Support of Petition for Certiorari at 11, Giles v. California, 128 S. Ct. 2678 (2007) (No. 07-6053), 2007 WL 4231058
100. See JohnR. Kroger, The Confrontation Waiver Rule, 76 B.U. L. REV. 835, 856 (1996) (reporting, based on a survey of federal decisions shortly before the enactment of Federal Rule 804(b)(6) in the mid-1990s, that the specific intent requirement "appearfed] to be the minority rule"); Raeder, supra note 40, at 778 (observing that "after Crawford most courts have applied the [forfeiture] doctrine to admit statements of murdered domestic violence victims, where witness tampering is not involved").
101. People v. Giles, 152 P.3d 433, 438-4 (Cal. 2007), vacated, 128 S. Ct. 2678 (2008).
102. State v. Meeks, 88 P.3d 789, 793-94 (Kan. 2004), overruled in part by State v. Davis, 158 P.3d 317, 322 (Kan. 2006).
103. State v. Her, 750 N.W.2d 258, 270-74 (Minn. 2008), vacated, 129 S. Ct. 929 (2009).
104. State v. Sanchez, 177 P.3d 444, 454 (Mont. 2008).
105. State v. Mason, 162 P.3d 396,403-05 (Wash. 2007).
106. State v. Jensen, 727 N.W.2d 518, 536 (Wis. 2007).
107. E.g., People v. Moore, 117 P.3d 1, 5 (Colo. App. 2004); Boyd v. State, 866 N.E.2d 855, 856-57 (Ind. Ct. App. 2007); People v. Bauder, 712 N.W.2d 506, 506, 514-15 (Mich. Ct. App. 2005); cf. Gonzalez v. State, 195 S.W.3d 114, 125-26 (Tex. Crim. App. 2006).
108. People v. Moreno, 160 P.3d 242, 245-6 (Colo. 2007); People v. Stechly, 870 N.E.2d 333, 353 (111. 2007).
109. See Moreno, 160 P.3d at 246-47; Stechly, 870 N.E.2d at 352-53 (both noting a possible "murder exception" to the intent-to-silence requirement).
110. State v. Romero, 156 P.3d 694, 703 (N.M. 2007); cf. Commonwealth v. Laich, 777 A.2d 1057, 1062 n.4 (Perm. 2001) (noting that Pennsylvania's hearsay exception for forfeiture by misconduct, like Federal Rule 804(b)(6), includes an intent-to-silence requirement but not holding that constitutional forfeiture doctrine included such a requirement).
111. Giles v. California, 128 S. Ct. 2678, 2681 (2008). For excellent analysis of the Giles opinion, see the essays written by participants in the symposium organized by the Lewis and Clark Law Review on January 30, 2009. Symposium, The Confrontation Clause, 13 LEWIS & CLARK L. REV. (forthcoming 2009); see also Clifford S. Fishman, Giles, the Confrontation Clause, and Domestic Violence Prosecutions: An Interim User's Guide, 58 CATH. U. L. REV. (forthcoming 2009).
112. Giles, 128 S. Ct. at 2682.
113. Id.
114. Id.
115. Id.
116. People v. Giles, 19 Cal. Rptr. 3d 843, 847 (Cal. Ct. App. 2004) (depublished).
117. People v. Giles, 152 P.3d433,435 (Cal. 2007), vacated, 128 S. Ct. 2678 (2008).
118. 547 U.S. 813 (2006).
119. JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 317 (2007).
120. Giles, 128 S. Ct. at 2682.
121. Mat2687-88.
122. Id. at 2683-88.
123. Id. at 2693.
124. Id.
125. Id.
126. Id. at 2695 (Souter, J., concurring in part); id. at 2697-98, 2708 (Breyer, J., dissenting).
127. Mat2708.
128. Id. at 2693 (majority opinion).
129. Id. at 2694 (Souter, J., concurring in part).
130. Id. at 2695 (Breyer, J., dissenting).
131. Id. at 2682 (majority opinion).
132. Id. (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)) (internal quotation marks omitted).
133. Id.
134. Professor John Langbein of Yale, one of the nation's foremost scholars on the history of evidence law, has lamented that the "continuing confusion about the very nature of the law of evidence at the end of the eighteenth century underscores how primitive and undertheorized the subject then was." JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 248 (2003).
135. Giles, 128 S. Ct. at 2691 (acknowledging that "the case law is sparse"); id. at 2694, 2694-95 (Souter, J., concurring) (expressing wariness of Scalia's originalist argument because "the early cases on the [forfeiture] exception were not calibrated finely enough to answer the narrow question here"); id. at 2704 (Breyer, J., dissenting) ("I also recognize the possibility that there are too few old records available for us to draw firm conclusions."). For an excellent discussion of the problems with Scalia's originalist confrontation jurisprudence, see Thomas Y. Davies, Revisiting the Fictional Originalism in Crawford's "Cross-Examination Rule": A Reply to Mr. Kry, 72 BROOK. L. REV. 557 (2007).
136. Giles, 128 S. Ct. at 2682-93.
137. Id. at 2686; id. at 2695-97 (Souter, J., concurring in part); id. at 2702 (Breyer, J., dissenting).
138. Id. at 2707.
139. U.S. CONST, art. IV, § 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." (emphasis added)).
140. E.g., State v. Rhodes, 61 N.C. (Phil.) 445, 450 (1868) (per curiam) ("We will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence."); see also Giles, 128 S. Ct. at 2703-04 (Breyer, J., dissenting) (noting that "200 years ago, it might have been seen as futile for women to hale their abusers before a Marian magistrate").
141. See supra subpart I(A).
142. As Justice Souter correctly observed: The historical record ⋯ simply does not focus on what should be required for forfeiture when the crime charged occurred in an abusive relationship or was its culminating act; today's understanding of domestic abuse had no apparent significance at the time of the Framing, and there is no early example of the forfeiture rule operating in that circumstance. Giles, 128 S. Ct. at 2694-95 (Souter, J., concurring).
143. Id. at 2683-93 (majority opinion).
144. Id. at 2688.
145. Id. at 2683.
146. Id. at 2697 (Breyer, J., dissenting).
147. The dying-declaration exception was preferable, where applicable, for at least two reasons. First, it had greater appeal to contemporary sensibilities because of its religious basis: the declarant did not want to meet his maker with a lie on his lips. Second, the dying-declaration exception sufficed to overcome both constitutional confrontation objections and hearsay objections, while the forfeiture exception could only overcome the former. Id. at 2686. Scalia dismissed this second point quickly by quoting Dutton v. Evans, 400 U.S. 74 (1970), in which the plurality noted that '"the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots.'" Giles, 128 S. Ct. at 2686. Scalia omitted the next sentence in Dutton, however: "But this Court has never equated the two, and we decline to do so now." Dutton, 400 U.S. at 86.
148. Giles, 128 S. Ct. at 2687-88.
149. See supra notes 112-19 and accompanying text.
150. See generally David Savage, Original Intent' Matter of Opinions, L.A. T,MEs, July 13, 2008, at A14 (quoting law professor Mark Tushnet of Harvard, who indicated that Supreme Court Justices "share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor," and this tendency skews the originalist interpretation of the framers' intent).
151. Giles, 128 5. Ct. at 2683 (citing Lord Morley's Case, (1666) 6 How. St. Tr. 769 (H.L.)).
152. Lord Morley's Case, 6 How. St. Tr. at 770-71.
153. Giles, 128 S. Ct. at 2683.
154. Id. at 2683 ("[T]he term 'means' could sweep in all cases in which a defendant caused a witness to fail to appear⋯."); Id. at 2701-02 (Breyer, 3., dissenting) (suggesting that the term "means" could refer to causing the absence of the declarant without specifically intending to cause this absence).
155. Id. at 2683-84 (majority opinion).
156. Id. at 2684 n.l.
157. Id. at 2684.
158. Antonin Scalia, Originalism: The Lesser Evil, 57 U. ClN. L. REV. 849, 864 (1989); see also Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism, 75 U. ClN. L. REV. 7, 12-13 (2006) (expressing disappointment that Scalia does not adhere more rigidly to an originalist approach).
159. 98 U.S. 145(1878).
160. Id. at 158-59 (examining authorities approximately contemporaneous with the Founding, including Lord Morley's Case, and omitting any mention of an intent-to-silence requirement).
161. See, e.g., Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1749-50 (2007) (arguing that the Constitution is not necessarily consonant with modern values).
162. For example, in the oral argument of the Giles case, Breyer wondered aloud if originalist constitutional interpretation would require modern courts to follow the colonists' practice of drowning suspected witches and inferring guilt from the suspects' survival. Transcript of Oral Argument, supra note 57, at 8. But see Scalia, supra note 171, at 864 (declaring that he would shrink from originalist interpretation if it yielded absurd results and that he could not imagine himself, "any more than any other federal judge, upholding a statute that imposes the punishment of flogging").
163. See, e.g., Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204, 204 (1980) (discussing the difficulty of ascertaining and aggregating the framers' intentions).
164. Academics including history professor Jack Rakove of Stanford University, constitutional law professor Sanford Levinson of the University of Texas, and constitutional law professor Mark Tushnet of Harvard have derided the Supreme Court Justices' capacity for accurate historical research. Savage, supra note 163, at A14.
165. 128 S. Ct. 2783 (2008); Linda Greenhouse, Defining Opinions, N.Y. TIMES, July 13, 2008, at WK4 (noting the 5-4 split in Heller and that the two "sides came to opposite conclusions but proceeded on the premise that original understanding of [the Second Amendment's] framers was the proper basis for decision").
166. See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1179-80 (1989) (arguing that open-ended tests such as the "totality of the circumstances" test are inferior to those with a heightened amount of predictability).
167. 502 U.S. 346(1992).
168. Id. at 365 (Thomas, I, concurring in part and concurring in the judgment).
169. Id.
170. Id. at 364.
171. Crawford v. Washington, 541 U.S. 36, 51-52 (2004).
172. Id. at 51 (quoting Brief for Petitioner at 23, Crawford v. Washington, 541 U.S. 36 (2004) (No. 02-9410), 2003 WL 21939940, at *23).
173. Id. at 52, 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in the judgment)).
174. Id. at 52 (quoting Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae in Support of Petitioner at 3, Crawford v. Washington, 541 U.S. 36 (2004) (No. 02-9410), 2003 WL 21754961, at *3).
175. 448 U.S. 56 (1980).
176. Crawford, 541 U.S. at 63; see also id. ("The [Roberts] framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations.").
177. See Davis v. Washington, 547 U.S. 813, 827 (2006) (listing four reasons why statements made to police during an ongoing emergency are meaningfully and materially different from statements made to police about past events).
178. Id. at 822 (emphasis added).
179. Id. at 830 n.5 (quoting Davis, 547 U.S. at 842 (Thomas, J., concurring in the judgment in part and dissenting in part)).
180. See Giles v. California, 128 S. Ct. 2678, 2697-98 (2OO8)(Breyer, J., dissenting) ("[U]nder the circumstances presented by this case, there is no difficulty demonstrating the defendant's intent.. . because the defendant here knew that murdering his ex-girlfriend would keep her from testifying; and that knowledge is sufficient to show the intent that law ordinarily demands.").
181. Id. at 2698 ("A 'man who performs an act which it is known will produce a particular result is from our common experience presumed to have anticipated that result and to have intended it.'" (quoting Allen v. United States, 164 U.S. 492, 496 (1896))); see also Allen, 164 U.S. at 496 ("[E]very man is presumed to intend the natural and probable consequences of his own act.").
182. See Giles, 128 S. Ct. at 2687-88 ("[T]he requirement of intent 'means that the [forfeiture by wrongdoing] exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.'" (citation omitted)).
183. See id. at 2693 (rejecting the dissent's claim that, as applied in the domestic violence context, the majority's holding amounts to "nothing more than 'knowledge-based intent'" (quoting id. at 2708 (Breyer, J., dissenting))).
184. See United States v. Aguilar, 515 U.S. 593, 613 (1995) (Scalia, J., dissenting) ("[T]he jury is entitled to presume that a person intends the natural and probable consequences of his acts.").
185. See Atkins v. Virginia, 536 U.S. 304, 341 (2002) (Scalia, J., dissenting) (insisting on the use of an objective rather than a subjective test in determining whether society considers the death penalty for a particular class of defendants to be cruel and unusual).
186. Illinois Amicus Brief, supra note 43, at 1 ("[I]n many cases ⋯ the prosecution will be unable to demonstrate that the defendant acted with the specific aim of preventing future testimony.").
187. See id. at 28 ("[Although witness unavailability may be a reasonably foreseeable result of the defendant's misconduct, he may not have acted with an intent to prevent testimony, or, if such intent existed, it may be impossible to prove.").
188. See Giles v. California, 128 S. Ct. 2678, 2687 (2008) ("In 1997, this Court approved a Federal Rule of Evidence, entitled 'Forfeiture by wrongdoing'⋯. We have described this as a rule 'which codifies the forfeiture doctrine.'" (quoting Davis v. Washington, 547 U.S. 813, 833 (2006))).
189. White v. Illinois, 502 U.S. 346, 366 (1992) (Thomas, J., concurring in part and concurring in the judgment).
190. Crawford v. Washington, 541 U.S. 36, 61 (2004).
191. 400 U.S. 74(1970).
192. Id. at 86.
193. 399 U.S. 149(1970).
194. Id. at 155.
195. The Supreme Court has reversed convictions when the Government's evidence fell within an applicable hearsay exception but nonetheless offended the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 829-32 (2004) (vacating one petitioner's conviction because the statement at issue, while properly admitted under the hearsay rules as an excited utterance, was testimonial under the Confrontation Clause and therefore could not be admissible without cross-examination); Crawford, 541 U.S. at 68-69 (reversing the admission of a statement because it was testimonial, even though no party disputed that the statement fell within the ambit of the statement-against-interest hearsay exception); see also Lilly v. Virginia, 527 U.S. 116, 139-40 (1999) (plurality opinion) (holding that the admission of a statement against interest was unconstitutional under the Confrontation Clause where the defendant lacked an opportunity for cross-examination).
196. Giles v. California, 128 S. Ct. 2678, 2700 (2008) (Breyer, J., dissenting) (observing that the absence of confrontation concerns does not guarantee admission of hearsay evidence because the rule against hearsay still presents a separate hurdle for the proponent to surmount); Fishmah, supra note 124.
197. Crawford, 541 U.S. at 59.
198. E.g., CAL. EVID. CODE § 1350 (West 1995); DEL. R. EviD. 804(b)(6); GA. R. EVID. 804(b)(7); 725 ILL. COMP. STAT. 5/115-10.2a (2006); MD. CODE ANN., CTS. & JUD. PROC. § 10-901 (LexisNexis 2006); MICH. R. EviD. 804(b)(6); N.D. R. EviD. 804(b)(6); OHIO R. EVID. 804(b)(6); OR. REV. STAT. § 40.465(3)(fHg) (2007); PA. R. EVID. 804(b)(6); S.D. R. EVID. 804(b)(6); TENN. R. EVID. 804(b)(6); VT. R. EVID. 804(b)(6).
199. Davis, 547 U.S. at 833.
200. James F. Flanagan, Confrontation, Equity, and the Misnamed Exception for "Forfeiture" by Wrongdoing, 14 WM. & MARY BILL RTS. J. 1193, 1197 n.19 (2006) (indicating that 804(b)(6) was developed in organized-crime and drug cases).
201. Morales v. Campbell, No. C06-06645, 2008 WL 413746, at *13 (N.D. Cal. Feb. 13, 2008) ("Petitioner's forfeiture argument, although superficially logical, is untenable because petitioner errs by conflating the common law rule of equitable forfeiture of the right of confrontation with the more recently developed and distinct FRE 804(b)(6)."); see also United States v. Johnson, 495 F.3d 951, 971 (8th Cir. 2007) ("We observe first that the scope of the forfeiture by wrongdoing doctrine under common law may differ from the version of the doctrine established by Rule 804(b)(6)."); United States v. Natson, 469 F. Supp. 2d 1243, 1251-52 (M.D. Ga. 2006) ("It is correct that for Confrontation Clause purposes a defendant who eliminates a witness forfeits any constitutional right to confront that witness later regardless of the defendant's motive. However, Federal Rule of Evidence 804(b)(6) is narrower than this Confrontation Clause exception.").
202. Giles v. California, 128 S. Ct. 2678, 2687-88 (2008).
203. Crawford v. Washington, 541 U.S. 36, 67-69 (2004).
204. Scalia wrote for the majority in the three most important cases interpreting the Confrontation Clause since 1980: Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006); and Giles v. California, 128 S. Ct. 2678 (2008).
205. See Erwin Chemerinsky, When It Matters Most, It Is Still the Kennedy Court, CAL. BAR J., August 2008, http://calbar.ca.gov/calbar/2cbj/ cbjndx.htm (click the August 2008 link; then click the link to the article title) (noting that Scalia, generally a conservative on the Court, is leading the charge to vindicate the confrontation rights of the accused).
206. In Giles, the four Justices who supported the majority opinion in its entirety were Alito, Roberts, Scalia, and Thomas-the four most conservative judges on the Court. The two Justices who joined the majority opinion only in part were the liberal Ginsburg and the liberal-to-moderate Souter. The dissenting Justices included the liberal Breyer, the liberal-to-moderate Stevens, and the moderate Kennedy. Thus the willingness of the Justices to support strict enforcement of procedural rights for the accused in Giles varied inversely with the Justices' general tendency to support leftist causes. See generally Maxwell L. Stearns, Standing at the Crossroads: The Roberts Court in Historical Perspective, 83 NOTRE DAME L. REV. 875, 879 (2008) (categorizing Alito, Roberts, Scalia, and Thomas as conservatives; Breyer, Ginsberg, Souter, and Stevens as liberals; and Kennedy as the moderate-conservative); Chemerinsky, supra note 218 (pointing out that "ideology does not predict outcomes" in the Court's recent confrontation jurisprudence).
207. See infra notes 221-34 and accompanying text.
208. Transcript of Oral Argument, Davis v. Washington, 547 U.S. 813 (2004) (No. 05-5224), 2006 WL 766735.
209. Davis, 547 U.S. at 832-33.
210. Giles v. California, 128 S. Ct. 2678, 2693 (2008).
211. Crawford v. Washington, 541 U.S. 36, 62 (2004).
212. Davis, 547 U.S. at 832.
213. Giles, 128 S. Ct. at 2692-93 (hinting in dicta that prosecutors could sidestep the definition of "testimonial" by relying more heavily on victims' statements to friends, neighbors, and medical personnel). This suggestion engendered a lengthy discussion on the evidence professors' e-mail listserv in the summer of 2008. A number of professors believed that Scalia's comment had significantly narrowed the scope of the term "testimonial. " Copies of this e-mail correspondence are on file with the author.
214. Id. at 2693.
215. Id.
216. Id. at 2683-92.
217. Susan Nielsen, The Other Gun Ruling: Court Favors Abusers by Living in the Past, PORTLAND OREGONIAN, July 6, 2008, at El (discussing the Court's "[m]ultiple opinions about how to enforce suspects' rights in the context of domestic abuse"); Savage, supra note 44, at 19 (quoting Professor Joan Meier, who commented that the Giles opinions were "puzzling" on the topic of forfeiture in domestic violence prosecutions).
218. Giles, 128 S. Ct. at 2703 (Breyer, I, dissenting).
219. Id. at 2693. Four Justices-Alito, Roberts, Scalia, and Thomas-supported the majority opinion in its entirety. Ginsburg and Souter concurred in most of the majority opinion, including the quoted language. Id. at 2694 (Souter, J., concurring in part).
220. Id. at 2695 (Souter, J., concurring in part). Souter authored this concurring opinion, and Ginsburg joined in the opinion. The three dissenters-Breyer, Kennedy, and Stevens-expressly supported the language quoted here. Id. at 2708 (Breyer, J., dissenting). Souter wrote that his "inferred-intent" standard was consistent with Scalia's majority opinion, and Scalia did not refute this representation. Id. at 2695 (Souter, J., concurring).
221. Brooks Holland, a law professor at Gonzaga University, noted that Scalia's majority opinion "did not leave prosecutors helpless" in domestic violence cases. Indeed, Scalia left open the possibility that "wrongful intent may be established inferentially." Brooks Holland, Confrontation Forfeiture, NAT'L L.J., Aug. 6, 2008, at 11. Similarly, Professor Joan Meier of George Washington University, who had authored an amicus brief supporting the respondent in Giles, opined after the Court's ruling that "there is good reason to hope that on remand, this [defendant] will remain convicted⋯ and that many future batterers and abusers will still be capable of being convicted." Savage, supra note 44, at 19 (alteration in original).
222. This Article will use the term inferred-intent standard to refer to a test whereby a judge infers the defendant's intent to silence a potential witness based on the defendant's past conduct visa-vis that victim, even if the conduct did not involve an explicit threat of reprisals for testimony or cooperation with law enforcement. As used herein, the term inferred-intent standard refers not only to the language in Souter's concurrence, but also the similar language in Scalia's opinion. See supra notes 220-33 and accompanying text. After all, Souter said that his formulation of the test was consistent with Scalia's opinion, and Scalia did not contradict this representation by Souter. See supra note 232.
223. See Giles, 128 S. Ct. at 2692 (stating that it is not the role of the courts to extrapolate the values behind the words of the Sixth Amendment).
224. Id. at 2694 (Souter, J., concurring) (agreeing, in a concurrence joined by Justice Ginsburg, with the majority's analysis on all but section II(D)(2) of the majority's opinion).
225. Id. at 2695 (Breyer, J., dissenting) (asserting, in a dissent joined by Justices Stevens and Kennedy, that the defendant had forfeited his Confrontation Clause right through his own wrongdoing).
226. E.g., FED. R. EVID. 102 (listing general considerations that influence interpretation).
227. According to Professor Lawrence Tribe, who formerly taught Barack Obama at Harvard Law School: [I]f Obama were to be elected, he would appoint justices who share his view that the Constitution is a living document⋯. They would not be justices who fool themselves into thinking they know what the Constitution's original meaning was, and they can apply it as if nothing has happened in the last 200 years. Shira Schoenberg, Law Expert: Obama Will Preserve Constitution, CONCORD MONITOR, NOV. 14, 2007, http://www.cmonitor. com/apps/pbcs.dll/article?AID=/20071114/NEWS01/711140429/1217/ NEWS98 (quoting comments that Tribe made while campaigning for Obama in New Hampshire). History may remember the 2007 term of the U.S. Supreme Court as a high-water mark for originalism. See Savage, supra note 163, at A14 ("This year the Supreme Court relied more than ever on history and the original meaning of the Constitution in deciding its major cases.").
228. Crawford v. Washington, 541 U.S. 36, 62-65 (2004) (chiding the Roberts Court for basing its decision on (and ridiculing the decision because it rested on) consequentialist conceptions of the confrontation right rather than fealty to the framers' intent).
229. Confrontation advances utilitarian objectives because it aids in the discovery of the truth. 5 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 1367, at 32 (J. Chadbourn ed., rev. 1974) (characterizing cross-examination as "the greatest legal engine ever invented for the discovery of truth"); 3 WILLIAM BLACKSTONE, COMMENTARIES *373 (indicating that the "open examination of [witnesses]⋯ is much more conducive to the clearing up of truth"); MATTHEW HALE, HISTORY AND ANALYSIS OF THE COMMON LAW OF ENGLAND 258 (Lawbook Exchange 2000) (1713) (noting that adversarial testing "beats and bolts out the Truth much better"); cf. Crawford, 541 U.S. at 61-62 (discussing the utility of cross-examination, but emphasizing that cross-examination is crucial for its own sake, not for its apparent utility in each particular case). There is also an equitable rationale for confrontation: the accuser must be accountable in court for his accusation, and face-to-face confrontation assures accountability. According to David Feige, "[I]f you are going to make an allegation, the person you are accusing has a right to look you in the face and challenge what [you] are saying." Savage, supra note 44, at 16. Finally, the originalist rationale for confrontation has been documented thoroughly by the majority opinion in Crawford. 541 U.S. at 43-62.
230. For a cogent counterpoint, see the scholarship of Professor James Flanagan, who is the nation's foremost advocate for narrowing the forfeiture rule. E.g., James F. Flanagan, Forfeiture by Wrongdoing and Those who Acquiesce in Witness Intimidation: A Reach Exceeding Its Grasp and Other Problems with Federal Rule of Evidence 804(B)(6), 51 DRAKE L. REV. 459 (2005).
231. 5 JEREMY BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 302-04, 309-11 (Garland Publ'g 1978) (1827).
232. Id. at 303 ("The conviction and punishment of the defendant, he being guilty, is by the supposition an act the tendency of which, upon the whole, is beneficial to society.").
233. Giles v. California, 128 S. Ct. 2678, 2691 (2008) (observing that the "common-law forfeiture rule was aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them" in order to thwart prosecution); Davis v. Washington, 547 U.S. 813, 834 (2006) (noting that the forfeiture rule is necessary to protect the functioning of courts).
234. Crawford, 541 U.S. at 62 (indicating that "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds").
235. Reynolds v. United States, 98 U.S. 145, 158 (1879) ("[I]f a witness is absent by [defendant's] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away").