Goodbye Forfeiture, Hello Waiver: The Effect of Giles v. California

Monica J. Smith

Abstract

In cases where a defendant’s actions caused a victim to be unavailable to testify, it had become common practice for courts to apply the doctrine of forfeiture by wrongdoing as an equitable principle. In 2008, the Supreme Court decided Giles v. California, and altered that exercise by adding a requirement that a defendant must actually intend to prevent a witness from testifying in order for forfeiture by wrongdoing to apply. The effect of the Supreme Court’s decision in Giles is a move from the doctrine of forfeiture by wrongdoing to a waiver of the confrontation right by misconduct, thereby aligning it with other criminal procedure rights under the Confrontation Clause. This alignment provides an extra measure of protection to defendants, but further silences victims.