What Remains of the 'Forfeited' Right to Confrontation? Restoring Sixth Amendment Values to the Forfeiture-by-Wrongdoing Rule in Light of Giles v. California and Crawford v. Washington

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to “confront” their accusers in court. But what happens when literal confrontation is impossible? Should our system never allow evidence in support of a criminal conviction that cannot be communicated in open court by a live witness subject to contemporaneous cross-examination? The Supreme Court’s watershed decision in Crawford v. Washington proclaimed that such situations should be extremely rare. Crawford instructs that because confrontation, including cross-examination, is essential to determining truth and promoting real and apparent fairness in the process, testimonial statements by witnesses must be subjected to confrontation or else be entirely barred from the courtroom. Though at times this rule results in excluding admittedly relevant and probative evidence, it binds us to our higher Sixth Amendment principles demanding that the state satisfy particular safeguards before our society will consent to the deprivation of an individual’s freedom. Crawford advanced three main tenets about the right to confrontation: (1) It emphatically re-asserted the importance of confrontation in criminal trials, as the best assurance of reliable evidence and prevention of government abuse; (2) it warned of the risk of granting judges discretionary authority to waive that right; and (3) it clarified that the right to confrontation is defined by the confrontation right that existed at the time of founding. In its current form, the rule known as “forfeiture-by-wrongdoing” - by which a defendant loses confrontation rights if he intentionally causes the witness’s unavailability at trial - violates these key tenets of Crawford. While the theory of the rule is sensible and necessary to the functioning of the criminal justice system, I will argue that the current operation of the rule, which I will call “complete forfeiture” - where the full spectrum of confrontation rights is extinguished rather than a more limited subset of those rights - is inconsistent with post-Crawford Confrontation Clause jurisprudence. Under the dominant rule of “complete forfeiture,” implicitly endorsed by the Supreme Court in 2008 in Giles v. California and so far unquestioned by lower courts, the Sixth Amendment turns off entirely upon a finding of defendant wrongdoing, and any and all prior statements by the absent witness can be admitted to the jury. This paper argues for a more limited form of forfeiture. One type of “limited forfeiture” would limit the class of testimony admissible upon a finding of forfeiture to a specific, pre-determined subset of highly formalized evidence, analogous to the testimony admitted under framing-era forfeiture rules. The requisite formalities should include transcription, oath, administration by a judicial officer, and the defendant’s presence. If extended to modern-day equivalents, audio- and videotaping could be required. Such a rule would be more consistent with Crawford’s teachings about confrontation. First, it better aligns with the right at the time of founding. Second, it takes away the judge’s discretion as to what testimony is admissible. Third, the rule better promotes the Confrontation Clause’s purposes of utilizing confrontation to enhance evidentiary reliability and reduce the danger of government abuse or evidence-shaping. The requisite formalities, which guarantee a subset of confrontation elements despite surrendering live testimony and cross-examination at trial, assure that some minima of the Sixth Amendment’s prescriptions continue to operate for all evidence the state adduces in seeking a criminal conviction. Finally, such “limited forfeiture” better addresses the underlying theoretical rationales of forfeiture, which are estoppel authority combined with judicial integrity and deterrence concerns - not retribution or balancing of “equities.”