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44 Southwestern Law Review 466 (2015)


In this essay and memorial to my friend and colleague, Myrna Raeder, I examine forfeiting the right of confrontation in the context of domestic violence cases. In 2004, Crawford v. Washington the United States Supreme Court reinterpreted the Sixth Amendment, requiring that for “testimonial statements” to be offered against the accused, the speaker must appear in court, or, if unavailable, must have been subject to cross-examination previously. The practical effect of Crawford was to exclude many out-of-court statements that had previously been admissible. Nowhere was the effect of Crawford more striking than in domestic violence cases, where victims often make uncross-examined statements to police at the scene of the violence and then recant or refuse to testify later. The Supreme Court has denoted two exceptions to its new confrontation rule: one for dying declarations and another for forfeiture. According to Giles v. California (2008), forfeiture applies only where the accused intended to make the declarant unavailable as a witness (not merely because the accused rendered the declarant so). My study of post-Giles cases unearthed some interesting issues in applying the forfeiture exception. Although some cases of forfeiture are obvious (threats recorded on prison telephones by goonish boyfriends who promise more pain if the victim testifies), some are ambiguous and debatable. In this piece I discuss whether pleas for mercy, declarations of love, and marriage between the victim and the accused that leads to an assertion of spousal privilege count as actions that fit the forfeiture standard of intentionally making the witness unavailable. I focus primarily on this last example – a real case where the violent batterer married his victim and she refused to testify. The question (answered in the affirmative by the court) is whether the victim’s out-of-court statements to police could be admitted because the accused made her unavailable by marrying her. I discuss this forfeiture issue and analyze it against the background of the ongoing feminist debate about women’s agency in domestic violence case.