The Child Declarant, the Confrontation Clause, and the Forfeiture Doctrine

The Confrontation Clause of the Sixth Amendment normally precludes the state from offering a child\u27s testimonial hearsay statements into evidence if the child does not testify. An exception to that rule arises, however, if the defendant has engaged in misconduct that results in the forfeiture of the right to confront the child in court. In Giles v California, the United States Supreme Court attempted to clarify what a prosecutor must show in order to invoke the forfeiture doctrine. This Article examines the effect of Giles on the testimonial statement of a child declarant who does not testify at the defendant\u27s trial. To explore this narrow issue, it is necessary to explain the underlying legal principles. This Article will do so briefly; otherwise that portion of the discussion would be many, many, times the length of the actual topic of this Article. Part I will briefly outline the Supreme Court\u27s recent decisions relating to the Confrontation Clause and testimonial statements. Part II will outline what we currently know about the meaning of testimonial. Part III explains the forfeiture doctrine, and then attempts to set out the rule that emerges from the Giles decision---no easy task. Finally, Part IV will discuss how Giles and the forfeiture doctrine are likely to apply to a child witness who is unable to testify at trial

Police Trespass and the Fourth Amendment: A Wall in Need of Mending

Part I of this article provides an overview of basic Fourth Amendment principles. Part II analyzes the Oliver and Ciraolo cases which define and distinguish residential curtilage, protected by the Fourth Amendment, and open fields, which the Fourth Amendment does not protect. Part III reviews the Dow decision\u27s discussion of whether an industrial facility, like a residence, might have constitutionally protected curtilage. Part IV focuses on the Dunn decision, which dramatizes the curtilage-open field dichotomy while at the same time blurring the line between the two. Finally, part V shows how these decisions may have invalidated the commercial curtilage concept without squarely discussing it, and may even permit police officers to conduct surreptitious surveillance of a home from its front lawn or back yard

Old Testament Justice

The Mirror of Justice award is given each year by the Pope John Paul II Guild of Catholic Lawyers. This Mirror of Justice Lecture was given March 26,2001

Confrontation, Forfeiture, and Giles v. California: an Interim User’s Guide

This Article examines the implications of Giles v. California. It begins in Part II by examining the Confrontation Clause before Giles, and explains how Crawford v. Washington upended the Clause\u27s prior interpretation in Ohio v. Roberts, by excluding all testimonial statements, however trustworthy a court might consider them to be. It then provides a brief explanation of the forfeiture doctrine and its endorsement in Crawford. Part III consists of a detailed examination and critique of the Court\u27s resolution of the central issue in Giles: that the forfeiture doctrine applies only when the prosecution can show that the defendant killed the victim-declarant with the intent of preventing her from testifying. It scrutinizes the majority, two concurrences, and dissent, and posits that because of the content of the opinions, the view garnered only a conditional majority at best. Part IV explores how the forfeiture issue should be litigated, and in particular, how a prosecutor should attempt to satisfy the Giles intent to silence requirement in a variety of contexts: domestic homicides, domestic assaults, and crimes unrelated to domestic relationships. It also provides an overview of the hearsay exceptions that will often overcome a defendant\u27s hearsay exception. Part V shows how four of the Giles opinions can be read to evince a willingness to either reconsider or narrow the definition of testimonial. Part VI provides a brief conclusion

Electronic Tracking Devices and the Fourth Amendment: Knotts, Karo, and the Questions Still Unanswered

This article will examine the Knotts and Karo decisions, analyze the unanswered questions relating to the use of electronic tracking devices, and outline legislation that might best resolve those questions and strike a proper balance between the often conflicting values of individual privacy and effective law enforcement