Prosecuting Domestic Violence after Giles: Why a Categorical Approach to the Forfeiture Doctrine Threatens Female Autonomy

By Vargas, Michael | Duke Journal of Gender Law & Policy, Fall 2012 | Go to article overview

Prosecuting Domestic Violence after Giles: Why a Categorical Approach to the Forfeiture Doctrine Threatens Female Autonomy


Vargas, Michael, Duke Journal of Gender Law & Policy


INTRODUCTION

Prosecutors face a unique dilemma in domestic violence cases after Crawford v. Washington. (1) Post-Crawford, the Confrontation Clause requires any statement deemed "testimonial" to be subject to cross-examination in order to be admitted against the defendant, no matter how reliable or fundamental the evidence is to the prosecutor's case. (2) Application of the Confrontation Clause is especially salient in domestic violence cases because successful prosecution of alleged abusers often hinges on the admission of "testimonial" out-of-court statements and sworn affidavits made by a victim of abuse against her spouse. (3) Introduction of these accusations of domestic violence into evidence is further complicated by the fact that a victim of domestic abuse is often reluctant to cooperate with prosecutors by testifying against her spouse, therefore denying the defendant any meaningful opportunity for cross-examination. (4) As a result, the Confrontation Clause often precludes admittance of these probative victim statements. If prosecutors wish to somehow introduce this evidence at trial, they must seek an alternative means of doing so.

Absent an opportunity for cross-examination, "testimonial" evidence can only be admitted against the defendant in one of two ways: (1) if the statement in question was a dying declaration made by the victim when her death was imminent; or (2) if the defendant has forfeited his right to confrontation by his own wrongdoing. (5) Dying declarations do not play a significant role in domestic violence prosecutions even if the victim dies because the statements sought to be introduced are usually provided to law enforcement when the victim's death is not imminent. (6) The forfeiture-by-wrongdoing doctrine, therefore, has become the primary tool for prosecutors attempting to introduce "testimonial" evidence at trial when a domestic violence victim refuses to testify against her spouse.

Not surprisingly, domestic violence prosecutors have argued for a broad application of the forfeiture doctrine that extends even to cases in which the victim is still alive and has voluntarily decided not to testify against her spouse. (7) Their rationale for doing so is as follows: a broad application of the forfeiture doctrine is necessary, even if the victim voluntarily decides not to testify against her spouse about prior accusations of abuse, because victims of domestic violence are being pressured or coerced by the defendant into not testifying for fear of violent reprisal. (8)

It may be surprising, though, that this prosecutorial tactic could be backed by Supreme Court precedent. In Giles v. California, (9) the Supreme Court clarified that the defendant must have specifically intended to prevent a witness from testifying in order to forfeit his right of confrontation. (10) However, the Court also addressed in dictum the possible application of the forfeiture doctrine in cases of domestic violence where the crime results in the victim's death. (11) Justice Scalia, writing for the majority, noted that evidence of prior domestic abuse could be relevant to the intent inquiry of the forfeiture doctrine because acts of domestic violence are often intended to dissuade a victim from obtaining any outside assistance. (12) But Justice Souter, in his concurrence, went one step further. Souter noted that an abusive relationship is per se sufficient to presume the defendant's specific intent to prevent the victim from testifying because an abusive relationship is meant to isolate the victim from any cooperation with law enforcement. (13)

This Note argues that in domestic violence cases where the victim is still alive, the forfeiture doctrine should be concerned solely with the specific intent of the defendant, as emphasized by the Supreme Court majority in Giles, in lieu of any categorical alternative. Scalia's case-by-case approach is underinclusive; in some cases, the inference of the defendant's specific intent to prevent a victim from testifying, as ascertained by direct or circumstantial evidence, might be so strong as to require a (rebuttable) presumption of forfeiture.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Prosecuting Domestic Violence after Giles: Why a Categorical Approach to the Forfeiture Doctrine Threatens Female Autonomy
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.