Texas Law Review. In Defense of Giles A Response to Professor Lininger

Texas Law Review See Also In Defense of Giles A Response to Professor Lininger James F. Flanagan * I. Introduction Tom Lininger s article, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, 1 is a significant contribution to the debate about the revitalized Confrontation Clause under Crawford v. Washington, 2 and its major exception, forfeiture by wrongdoing defined in Giles v. California. 3 I have long admired Tom s prolific scholarship, as well as some of his innovative proposals. 4 We have presented our views at the same symposia and enjoy a friendship and interest in the trial process. The future of Giles is in its application, and Tom has focused on this important and evolving issue. I am honored to have this opportunity to comment on his important work. As a counsel for Dwayne Giles in the Supreme Court, and with an interest in forfeiture by wrongdoing predating Crawford, 5 I approach * Oliver Ellsworth Professor of Federal Practice, University of South Carolina School of Law. L.L.B., University of Pennsylvania 1967, A.B., University of Notre Dame 1964. The central ideas in this essay were first presented at the Lewis & Clark Law Review Symposium on the Confrontation Clause, held at Lewis and Clark Law School, Portland Oregon on January 30, 2009, and are the subject of a forthcoming and more detailed article in that publication. Professor Lininger also presented at that symposium. 1. 87 TEXAS L. REV. 857 (2009). 2. 541 U.S. 36 (2004). 3. 128 S. Ct. 2678 (2008). 4. See, e.g., Tom Lininger, Reconceptualing Confrontation After Davis, 85 TEXAS L. REV. 271 (2006); Tom Lininger, Bearing the Cross, 74 FORDHAM. L. REV. 1353 (2005); Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. REV. 747 (2005). 5. See, e.g., James F. Flanagan, 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 (2007); James F. Flanagan, Confrontation, Equity, and the Misnamed Exception for Forfeiture by Wrongdoing, 14 WM. & MARY BILL RTS. J. 1193 (2006); James F. Flanagan, Forfeiture by Wrongdoing and Those Who Acquiesce in Witness Intimidation: A Reach

68 Texas Law Review See Also [Vol. 87:67 forfeiture by wrongdoing from a different perspective than Tom. Not to put too fine a point on it, I respectfully, but fundamentally, disagree with many of his major positions on Giles, particularly the history of the forfeiture rule and its consequences. Because we both served as federal prosecutors in different districts, however, we tend to agree on the practical considerations of applying the forfeiture rule in the trial context. I certainly agree that batterers should be prosecuted for their crimes and that victim testimonial statements should be admitted when they satisfy Crawford and Giles, but I oppose bright-line tests to satisfy Giles. I also part company with Tom on his view that Crawford and Giles are unfortunate and wrongly decided cases that severely handicap the prosecution of domestic violence cases. The focus of many critics of Giles solely on domestic violence prosecutions leads to a strong desire to artificially limit Giles and make victim-less prosecutions possible, in lieu of live testimony. This approach has significant consequences for the future of confrontation, and if successful, it will reduce confrontation in all criminal cases. II. The Issues at Stake The Confrontation Clause and the other protections of the Sixth Amendment are fundamental safeguards imposed by the founders to insure the reliability of verdicts in criminal cases. They were specifically intended to impose burdens on prosecutions so that criminal convictions were not easily obtained. In particular, the Confrontation Clause requires the government to produce the witnesses at trial, not only for more reliable testimony tested by cross-examination, but also to prevent the government from creating evidence through its own witnesses. What was at stake in Giles was the question of when the prosecution can take this right from a defendant even though it would reduce the reliability of the judicial process. The State of California argued a truly breathtaking proposition: that a defendant s constitutional rights depended upon what the State charged. It argued, in effect, that whenever a defendant was charged with homicide, the defendant had no right of confrontation as to any relevant hearsay statement of the victim. Merely labeling a defendant as a murderer made him and anyone within that classification a person with fewer rights than any other criminal defendant. 6 The government s path to conviction was eased, and the risk of false, or misleading, or incomplete hearsay was transferred to the defendant. Giles was a homicide case, but the State of California did not limit it to homicides. Nor could it, because the Exceeding Its Grasp and Other Problems with Federal Rule of Evidence 804(b)(6), 51 DRAKE L. REV. 459 (2003) [hereinafter, Flanagan, Forfeiture by Wrongdoing]. 6. The state does have to prove, by a preponderance of the evidence, that the defendant did commit the homicide. As a practical matter, however, any prosecutor with evidence sufficient for probable cause to indict will satisfy that burden in all but the most egregious case of overcharging.

2009] Comment 69 argument applied whenever a witness was absent, regardless of the crime charged. Thus, forfeiture by act could apply in any case where there was a plausible argument that the witness s absence could be traced in any way to the defendant, regardless of any other reason for the witness s absence. The Supreme Court rightly rejected California s view. Both the opinion for the Court and the concurring opinions of Justices Souter and Ginsburg specifically dismissed the proposition that pretrial determinations of status could automatically deprive defendants of their rights. The boundaries of the doctrine [of forfeiture by wrongdoing] seems to us intelligently fixed so as to avoid a principle repugnant to our constitutional system of trial by jury: that those murder defendants whom the judge considers guilty (after less than a full trial, mind you, and of course before the jury has pronounced guilty) should be deprived of fair-trial rights, lest they benefit from their judgedetermined wrong. 7 Justice Souter s concerns about the near circularity arising from a pretrial finding of the defendant s guilt as a predicate to admit evidence of that guilt reflects the same concern. 8 I do not think that it is coincidental that during the same term, the Court was also wrestling with the Executive Department s similar labeling of enemy combatants as a way to avoid judicial review and to substitute less than adequate procedures to justify continued detention. The Court specifically noted that the defective procedures for the Guantanamo detainees in Boumediene v. Bush 9 were primarily related to a lack of confrontation. 10 Giles also rejected the view that some defendants can be prosecuted with fewer constitutional rights solely because of the charge. The Court went on to establish that forfeiture by wrongdoing could limit the right of confrontation in a particular case. A defendant who acted with the purpose or goal of keeping a witness away from trial, and who accomplished that purpose, could lose the right to object to testimonial hearsay on constitutional grounds. The purpose requirement is correct in terms of precedent, logic, and the rationale of the rule. As Justice Souter said, As the Court demonstrates, the confrontation right as understood at the Framing and the ratification of the Sixth Amendment was subject to exception on equitable grounds for an absent witness s prior relevant, testimonial statement, when the defendant brought about the absence with intent to prevent testimony. It was, and is, reasonable to place the risk of untruth in an unconfronted, out-of-court statement on a defendant who meant to preclude the testing that confrontation provides. 11 7. Giles, 128 S. Ct. at 2691 (footnote omitted). 8. Id. at 2694 (Souter, J., concurring). 9. 128 S. Ct. 2229 (2008). 10. Id. at 2269. The court stated that the right of confrontation is more theoretical than real because of the free admission of hearsay. Id. 11. Giles, 128 S. Ct. at 2694 (Souter, J., concurring).

70 Texas Law Review See Also [Vol. 87:67 III. The Court Correctly Defined Forfeiture by Wrongdoing. A. History and Precedent Support the Intent Requirement Much ink has been spilt on the historical analysis in Giles, and I will spill no more than necessary for one major point. The State of California failed because there was no evidence that its intentless version of forfeiture by wrongdoing was an exception to the Confrontation Clause. This was the Court s ultimate verdict: We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter. 12 The critics of Giles never fully recognize the profound consequences of the lack of support in the common law, the Confrontation Clause, the precedent of the Court, or indeed, any significant precedent, before Crawford, that holds that a constitutional right granted to a defendant can be forfeited without a deliberate and intentional decision to abuse the right. The simple fact is that every case involving the forfeiture rule, starting with Lord Morley s Case 13 in 1666, was decided in the context of deliberate witness tampering until Crawford. 14 Reynolds v. United States, 15 the Court s key precedent, was also a deliberate witness tampering case. Justice Waite noted that Reynolds had been given every chance to reveal the location of the witness, but chose not to do so. Having the means of making the necessary explanation, and having every inducement to do so if he would, the presumption is that he considered it better to rely upon the weakness of the case made against him than to attempt to develop the strength of his own. 16 Had the idea of forfeiture by act alone been a known and an accepted legal proposition, it surely would have been argued and perhaps adopted somewhere in the preceding 340 years. The first case to suggest this view was a federal Court of Appeals opinion in 1985 that was inconsistent with every other forfeiture by wrongdoing case that uniformly required proof of intent prior to Crawford. 17 The reality is that the forfeiture by act argument was created to avoid Crawford. The California Supreme Court conceded as 12. Id. at 2693. 13. 6 How. St. Tr. 769 (H.L. 1666). 14. Lord Morely s Case was a pretrial ruling in an English murder case, holding that the sworn statement of a witness taken at a coroner s inquest could be admitted if the defendant had been kept away by the means or procurement of the defendant. The prosecution failed to establish Lord Morely s responsibility at trial. Id. at 776 77. The modern cases on forfeiture by wrongdoing all involved witness tampering. See Flanagan, Forfeiture by Wrongdoing, supra note 5, at 484 87 (describing witnesses and intimidation in the modern cases). 15. 98 U.S. 145 (1878). 16. Id. at 160. 17. See United States v. Rouco, 765 F.2d 983 (11th Cir. 1985). The court spent most of the opinion reviewing the facts to show the reliability of the statement and its consistency with other evidence, rather than an analysis leading to a new rule. The modern cases all required intent. Flanagan, Forfeiture by Wrongdoing, supra note 5, at 482 84.

2009] Comment 71 much in Giles. After Crawford, the response of many courts (including the Court of Appeal in this case) was to focus on the equitable forfeiture rationale which could eliminate the need for evidence of witness tampering and broaden the scope of the rule to all homicide cases. 18 The critics response to the absence of any precedent is to argue that it is possible to piece together an alternative reading of the cases and authorities that fits the theory of forfeiture by act. One can possibly read kept away by the means or procurement of the defendant to be broad enough to include forfeiture by act. 19 One can read general statements in the precedents that no one should benefit from his wrongdoing to suggest that one should not benefit from a homicide by being able to invoke a constitutional right. 20 One can ignore the almost universal view of recent precedent that the forfeiture rule required intent by arguing that this was only an evidence rule. 21 Finally, one can argue that all these cases were decided before the recent emphasis on prosecuting domestic violence, without explaining why, if such a rule existed, the courts had not applied it in the serious crime of murder. The ability to piece together an alternate view, however, is not proof that the doctrine existed. That alternate view of history also requires the advocate to adopt the more complex and broader explanation for the absence of clear precedent at all points in their chain of logic. 22 The critics of Giles ultimately fail the test of Occam s razor: the simplest explanation is the most likely. The reason for the absence of any precedent for 340 years is that it was not argued or accepted. In the absence of precedent, the advocates of forfeiture by act failed to satisfy their burden of establishing that this is an exception to the Confrontation Clause. 18. People v. Giles, 152 P.3d. 433, 440 (Cal. 2007). Similarly, the Wisconsin Supreme Court stated: In essence, we believe that in a post-crawford world, the broad view of forfeiture by wrongdoing... utilized by various jurisdictions since Crawford s release is essential. State v. Jensen, 727 N.W.2d 518, 535 (Wisc. 2007). 19. See Giles v. California, 128 S. Ct. 2678, 2696 97 (Breyer, J., dissenting) (arguing that the language is sufficiently broad to reach murder). 20. See id. at 2697 (noting that the maxim appeared in Reynolds). 21. See, e.g., Lininger, supra note 1, at 882 84. This objection misses Justice Scalia s point that the codification of the forfeiture by wrongdoing with an intent requirement established the lack of modern support for California s view of the rule, even as a matter of evidence law. Moreover, prior to the promulgation of Rule 804(b)(6) in 1997, the hearsay was generally admitted under the residuary exception now found in Rule 807, and the courts often considered the Sixth Amendment in their decisions, so that the rule did reflect the opinions of courts on its constitutionality. Flanagan, Forfeiture by Wrongdoing, supra note 5, at 467 70. 22. Justice Breyer s argument that kept away or procure the absence is sufficiently broad to include his principle avoids their more common meaning denoting an intentional act. Giles, 128 S. Ct. at 2696 97, 2701 (Breyer, J., dissenting). He argues that the forfeiture rule applied at common law only when the statement was validly taken under the Marian statutes. Id. at 2702. Thus, the rule existed but it never could be applied. Yet, if the statement was taken outside of the Marian statutes it could be admitted if it satisfied the dying-declaration rule, a much more restrictive rule than forfeiture. He argued that Reynolds relied on the maxim that a person should not benefit from his wrong, when the facts showed a deliberate refusal to reveal the location of the witness, which was the wrong in that case. Id. at 2696.

72 Texas Law Review See Also [Vol. 87:67 B. Giles Does Not Depend on an Originalist View of History The debate over the relevance of the history of the Confrontation Clause, however, does not undercut the purpose requirement established in Giles. There is an independent basis for the decision and the purpose requirement. Witness tampering is but one example of an improper attempt to manipulate the judicial process that, the Court has repeatedly held, may result in the defendant s forfeiture of a constitutional right. Reynolds v. United States, 23 the original forfeiture by wrongdoing case, was the classic case illustrating the principle. Reynolds held that the defendant could not conceal the witness and insist on his right to confront that witness. 24 The Court has repeatedly responded to attempts at manipulation of the Confrontation Clause in a similar way. The defendant may not voluntarily absent himself from the trial and maintain that his conviction was unconstitutional because of his voluntary absence. 25 The defendant must comply with a rule or statute and give notice of an intended defense 26 or of prospective witnesses. 27 Moreover, the defendant who testifies must submit to cross-examination 28 and cannot consult with counsel in the middle of the examination. 29 While the prosecution cannot use illegally obtained evidence in its case-in-chief, it may impeach the defendant when his testimony is inconsistent with this evidence. 30 And, of course, the defendant must comport himself appropriately or face exclusion from the courtroom. 31 The Court in Davis linked the forfeiture rule to the manipulation of the judicial process: [W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have 23. 98 U.S. 145 (1878). 24. The opinion in Reynolds clearly tied the forfeiture to the defendant s concealment of the witness s location to a deliberate tactical choice about his defense. Having the means of making the necessary explanation [of the witness s location], and having every inducement to do so if he would, the presumption is that he considered it better to rely on the weakness of the case made against him than to attempt to develop the strength of his own. Id at 160. 25. Motes v. United States, 178 U.S. 458, 472 (1912). 26. Michigan v. Lucas, 500 U.S. 145, 151 52 (1991) (holding that the defendant does not have a right to ignore a notice-of-defense rule). 27. Taylor v. Illinois, 484 U.S. 400, 415 16 (1988) (finding compulsory process clause does not create absolute bar to the exclusion of witness for failure to comply with state s rule requiring witnesses to be identified). 28. Fitzpatrick v. United States, 178 U.S. 304, 315 16 (1900) (holding a defendant electing to testify must submit to cross-examination). 29. Perry v. Leeke, 488 U.S. 272, 281 82 (1989) (holding the right to the assistance of counsel does not include consultation with counsel between direct and cross-examination). 30. Harris v. New York, 401 U.S. 222, 225 26 (1971) (holding that Miranda cannot be a shield to allow the defendant to testify inconsistently with prior voluntary but suppressed statements); Walder v. United States, 347 U.S. 62, 65 (1954) (holding that defendant may be impeached with illegally seized and suppressed evidence). 31. Illinois v. Allen, 397 U.S. 337, 342 43 (1970).

2009] Comment 73 the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. 32 These cases announce a broad principle against the manipulation of the judicial process where forfeiture is a direct consequence of the manipulation. It applies not just to confrontation but to all the constitutional trial rights. The Court has even applied the principle to the government when it sought to retry an acquitted defendant on the theory that its defective indictment voided a claim of double jeopardy. 33 The forfeiture by manipulation precedents are an independent foundation for the forfeiture by wrongdoing rule of Giles. This body of law is aimed at protecting the judicial process and does not depend upon a determination of what the common law was in 1789 and all the uncertainties that may entail. It also embodies the proper role of constitutional rights. All defendants have constitutional rights, regardless of the crime charged and even though they impose obligations and limitations on the prosecutor s ability to obtain a conviction. However, a particular defendant can lose a constitutional right when he manipulates the trial process. Under these cases, forfeiture is triggered not by the crime charge but by an intentional attack on the judicial process to gain an unfair advantage from a constitutional right. The intentional manipulation of the constitutional right in the trial process is the only basis to forfeit a constitutional right and ease the state s constitutional obligations. Otherwise, constitutional rights would vary on the needs or whims of the government and not the consequences of the defendant s own acts against the trial process. Intent arises as an inherent requirement of the forfeiture of constitutional rights under these precedents, and not as some argue, as an artifact of the peculiar history of the common law. Case law, as well as history, mutually and independently supports the intent requirement. IV. Crawford and Giles Are Limited Precedents That Do Not Unduly Restrict Prosecutions The claim that Giles will have a devastating effect on domestic violence prosecutions is premature, at best. These claims are made in the same vein as Judge Warburton s comment to Sir Walter Raleigh about his insistence on the right of confrontation. I marvel, Sir Walter, that you being of such experience and wit should stand on this point; for so many horse stealers may escape, if they may not be condemned without witnesses. 34 A close look suggests that both horse stealers and domestic batterers can be convicted 32. Davis v. Washington, 547 U.S. 813, 833 (2006). 33. See Ball v. United States, 163 U.S. 662, 667 68 (1896) (holding that the prosecution cannot take advantage of its defective indictment to avoid a claim of double jeopardy when defendant was acquitted at first trial). 34. 1 Criminal Trials 421 (Jardine, ed. 1850). That justification has been rejected plainly by this Court. Crawford v. Washington, 541 U.S. 36, 43 44 (2004).

74 Texas Law Review See Also [Vol. 87:67 while fully complying with Crawford and Giles. Tom described five convictions for grisly murders that were reversed for reconsideration in light of Giles because they were not final at the time of the decision. The reversal for this limited purpose is far from allowing the defendants to escape just punishment. Rather, they are examples of the limited effect of Giles. Howard Streeter conceded that he had killed the victim in a particularly gruesome manner, but challenged his death sentence, objecting to the introduction of a prior, unsworn statement of the victim and on many other grounds. 35 Manuel Banos admitted striking the victim with a hammer, and the prosecution used a statement to a friend also admitting the crime, 36 but he objected to victim statements of prior assaults. Likewise, there were comparable victim hearsay statements to third parties to take the place of the suppressed letter to the police in State v. Jensen. 37 The California Appellate Court, affirming Darrell Younger s conviction, found the evidence of guilt overwhelming. 38 Likewise, in State v. Her, 39 there is no real question of the defendant s responsibility for the victim s death. Evidence placed him at the scene, and he was subsequently found in Illinois in possession of the victim s car, a check from the victim, her driver s license, and her credit cards. 40 Crawford has a limited effect because it applies only to testimonial statements made to government agents after an emergency response and during an investigation. Statements made to the police while responding to an emergency or to any civilian fall outside Crawford and are admissible provided that they satisfy a hearsay exception in the relevant jurisdiction. 41 Tom correctly argues for the promulgation of appropriate rules of evidence. Although some victim testimonial statements are excluded, in fact, those made to nongovernmental agents are admissible. Giles is a clear direction from the Court to prosecutors that they may introduce comparable victim statements or, alternatively, develop evidence that is sufficient to support the defendant s intent to prevent the witness from testifying and satisfy the forfeiture rule. Now that prosecutors understand the requirements of Crawford and Giles, they can easily satisfy them. 35. Appellant s Opening Brief at 86, 104 111, People v. Streeter, No. S078027 (Cal. June 30, 2008), 2008 WL 2805905. 36. People v. Banos, No. B194272, 2008 WL 223824, at *2 (Cal. Ct. App. Jan. 29, 2008), vacated, 129 S. Ct. 163 (2008). 37. 727 N.W.2d 518, 536 (Wisc. 2007) (noting statements made to neighbor and son s teacher non-testimonial and statements to officer, and letter to neighbor were testimonial). 38. People v. Younger, No. A110031, 2007 WL 1848976, at *10 (Cal. Ct. App. June 28, 2007), vacated, 128 S. Ct. 2994 (2008). 39. 750 N.W.2d 258 (Minn. 2008), vacated, Her v. Minnesota, 129 S. Ct. 929 (2009). 40. Id. at 263. 41. Giles v. California, 128 S. Ct. 2678, 2692 93 (2008); Davis v. Washington, 547 U.S. 813, 822 (2006).

2009] Comment 75 V. Forfeiture and Its Effect on Confrontation Here, I start from the proposition that the decisions interpreting Giles in domestic violence prosecutions will be applied to all cases of forfeiture by wrongdoing regardless of the crime. There cannot be one Confrontation Clause for domestic violence and another for all other crimes. 42 Thus, the future of confrontation depends on how broadly, or narrowly, this exception is drawn in those cases. Tom properly draws attention to the many instances where defendants intimidate their domestic partners, which keeps them from testifying. I certainly agree that forfeiture is appropriate in those cases, but I am concerned that the zeal for convictions will undermine an important trial right because its emphasis is on broadening and applying forfeiture without consideration of whether the witness can be produced and how that can be accomplished. The fact is that many complaining witnesses in domestic violence cases choose not to testify for independent reasons that are not chargeable to the defendant. 43 The test proposed for causation, reasonable foreseeability, overlooks this possibility. The breadth of the test can be seen from the argument that the subsequent suicide of the victim of an assault was foreseeable for purposes of the forfeiture rule. 44 The basic rule is that correlation is not causation. Just because two events are related in time does not mean that there is any connection established between them. The question is what evidence is there of the connection, and is the conclusion supported by the facts? 45 On theoretical grounds, a tort-based causation element is inappropriate. The goal of tort law is compensation for the injured, which justifies a broad standard for causation. The Court has said, however, that the protection of constitutional rights requires every reasonable presumption against their loss. 46 Therefore, a strict standard and proof of that 42. Giles, 128 S. Ct. at 2693. 43. See Tom Lininger, Yes, Virginia, There is a Confrontation Clause, 71 BROOK. L. REV. 401, 407 (2005) (arguing that assault does not necessarily carry with it the threat of physical reprisal if the victim cooperates with the police); Myrna Raeder, Remember the Ladies and the Children Too: Crawford s Impact on Domestic Violence and Child Abuse Cases, 71 BROOK. L. REV. 311, 361 62 (2005) (suggesting that there should always be specific evidence in each case linking the reason for a witness failing to appear to the defendant). 44. Lininger, supra note 1, at 896 97 (citing People v. Herring, No A104624, 2005 WL 958220 (Cal. Ct. App. Apr. 27, 2005)). 45. The decedent was found in her bathtub with intravenous drug paraphernalia and prescription pain killers, with a syringe in her hand and a tourniquet and needle puncture wounds on the thigh. She died of drowning and acute Fentanyl toxicity. A final farewell note was found in a storage box on her patio. People v. Herring, No A104624, 2005 WL 958220, at *7 (Cal. Ct. App. Apr. 27, 2005). There is no information on when the farewell note was written, but its location suggests preparation at an earlier time. Earlier that day the decedent had obtained a restraining order against the defendant and attempted to purchase a sixty-day supply of the painkiller, but was limited to thirty days because of an earlier purchase. Id. at n.4. The evidence suggests either long-term drug abuse, and perhaps an accidental overdose, or earlier thoughts of suicide. 46. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

76 Texas Law Review See Also [Vol. 87:67 standard are required for causation in forfeiture. The proposed foreseeability test looks remarkably similar to the inferred intent advocated by Justice Breyer s Giles dissent and rejected by the majority. That is, a defendant charged with homicide has the requisite intent because it can be inferred that he knew that if he killed the victim, the witness would not testify. 47 The Supreme Court rejected this automatic assumption of inferred intent in favor of specific proof that the particular defendant intended to keep the witness from the stand. Tom notes the government s obligation to produce witnesses, and that, without such a requirement, the prosecution would be inclined to use testimonial hearsay. 48 The prosecution often gains by using hearsay because the statement cannot be modified, or retracted, and is provided by an authority figure who may be substantially more credible than the witness. A broad rule of forfeiture, as articulated in this article, creates a perverse incentive for the prosecution to rely on hearsay, rather than to actually produce the witness. He argues that a witness who has fled the jurisdiction because of the defendant is unavailable and testimonial statements are admissible. 49 Certainly, something more than hand-wringing is required of the prosecution to claim unavailability. At least, there must be attempts to locate the witness, and once located, attempts to bring her back to the jurisdiction for trial. This lack of action would seem to fail even the minimal good faith efforts articulated in Barber v. Page. 50 I advocate a much stronger standard for establishing unavailability. The government must show due diligence in seeking and producing the witness. 51 This test focuses on the actual steps taken, rather than the good-faith intentions of the government. The simple fact is that testifying is an inherently stressful event. 52 Witnesses often do not want to testify, and in fact, seasoned trial attorneys are skeptical of those witnesses who want to take the stand. Identifying and producing witnesses is often difficult. There are many situations where complaining witnesses have a preexisting relationship with the defendant similar to those in domestic violence cases. Organized crime, many business conspiracies, and many crimes among neighbors share this relationship. If, in all of these cases, the Confrontation Clause can be avoided by a broad claim of forfeiture, the prosecution will seek forfeiture, rather than actually producing the witness. The result will be to gut the government s obligation 47. Giles, 128 S. Ct. at 2697 98 (Breyer, J., dissenting). 48. Lininger, supra note 1, at 893 94. 49. Id. at 892. 50. 390 U.S. 719, 724 25 (1968). 51. James F. Flanagan, An Intent Requirement, If We Can Keep It, 13 LEWIS & CLARK L. REV. (forthcoming 2009). 52. See Maryland v. Craig, 497 U.S. 836, 856 (1990) (finding that protections for child witnesses are not available solely because of the normal anxiety of testifying).

2009] Comment 77 to produce witnesses and substantially less confrontation in all cases. VI. Thoughts on Professor Lininger s Proposals A. Per Se Rules of Inference The Supreme Court forbids the use of mandatory inferences in criminal cases. 53 The same arguments apply to mandatory presumptions that lead to the admissibility of evidence on which a conviction is based. At best, these inferences would be permissive. That is, the court could, but is not required to, draw the inference suggested. If so, I am not sure that they advance the trial process because each case demands proof to justify the inference in each case. The real danger is that these presumptions, or bright-line rules, obscure significant gaps in the chain of logic or proof. One of the bright-line rules is that a violation of a restraining order issued for the accuser, either in the present case or an unrelated case, manifests the required intent for forfeiture under Giles. 54 This statement is unqualified in scope or application and makes any violation of a restraining order, no matter how trivial, a triggering event for forfeiture. He continues: In other words, if the accused violated a restraining order prior to his trial for the instant offense, and if the violation resulted proximately and foreseeably in the absence of the accuser at trial, then hearsay statements by the accuser particularly statements in conjunction with the application for the restraining order would be subject to the forfeiture doctrine. 55 This version recognizes that there is a significant causation issue. However, it ignores the purpose or goal of preventing the witness from appearing found in Giles. The argument is that the violation of the court order shows knowledge of potential testimony, as well as an attempt to interfere with the protection of the court. While that is true in some cases, what is the inference when the witness violates the court order and contacts the defendant? It can be argued that the defendant should have refused the contact, but mere contact does not support an intent to prevent the witness from testifying. Significantly, both cases cited in support of the proposition had independent proof that the conversations involved attempts of the defendant to keep the witness from testifying. 56 Obviously, there was sufficient evidence of the purpose of preventing testimony, and in fact, it was presented. A per se rule, however, absolves the prosecution of introducing available evidence to establish intent. 53. Ulster County Court v. Allen, 442 U.S. 140, 158 59 (1979). 54. Lininger, supra note 1, at 898. 55. Id. 56. See Montague v. United States, 421 F.3d 1099, 1104 (10th Cir. 2005) (witness related conversations with defendant in violation of restraining order urging her not to testify against him); State v. Turner, No. A04-1799, 2005 WL 2850315, at *3 (Minn. Ct. App. Nov. 1, 2005) (recounting telephone conversations of defendant to witness urging witness not to testify).

78 Texas Law Review See Also [Vol. 87:67 Tom also proposes to draw the requisite inference of an intent to prevent testimony from a history or pattern of domestic violence. Both the opinion for the Court and the concurring opinions of Justices Souter and Ginsburg suggest the inference may be appropriate in some cases. Both emphasize that abuse is relevant only when it is intended to isolate the victim from the authorities. Justice Scalia says that the evidence may support the inference. 57 Justice Souter limits it to the classic case, without defining what constitutes a classic case, but with the clear implication that it is not a routine inference to be drawn in every case. 58 Tom also recognizes it is not a bright-line inference. This inference requires predicate proof of the abuse and, perhaps, expert testimony of social-science experts. 59 A test with that many qualifications is not a bright-line test. It emphasizes that there must be individualized proof of the necessary elements. B. Amendment of Rule 804(b)(6) I agree with Tom that states should adopt a hearsay exception for forfeiture by wrongdoing, and I further agree that the language applying the rule to those that acquiesce in the wrongdoing should be deleted as overbroad. Likewise, the recommendation for a reliability requirement for the evidence rule is warranted. 60 However, it is questionable whether the causation language in the proposed rule satisfies Giles. Forfeiture applies if a criminal defendant engaged in wrongdoing that foreseeably could cause, and did in fact proximately cause, the unavailability of the declarant as a witness. 61 If foreseeably includes any logical consequence of the wrongdoing, then it would apply in the type of homicide that the Court found unconstitutional in Giles. VII. Conclusion Crawford recognized the importance of the right of confrontation and the need for protection against testimonial hearsay. Giles further recognized that confrontation was sufficiently important so that only a deliberate intent to manipulate the judicial process by keeping the witness away justified the forfeiture of that right. Both Crawford and Giles will survive as effective procedural protections only if the elements of the forfeiture doctrine are fully articulated and enforced. 57. Giles v. California, 128 S. Ct. 2678, 2693 (2008). 58. Id. at 2695 (Souter, J., concurring). 59. Lininger, supra note 1, at 901 02. 60. Flanagan, Forfeiture by Wrongdoing, supra note 5, at 498 508, 519 25 (detailing concerns about meaning of acquiesce and reliability of statements). 61. Lininger, supra note 1, at 912 app.