In 2008, the Supreme Court in Giles v. California189 addressed the question of forfeiture of confrontation; the Court had first applied the forfeiture doctrine more than a century earlier190 and forfeiture was discussed in both Crawford and Davis.191 The prosecutor in Giles had introduced statements during the defendant's murder trial that had been made by the victim (defendant's former girlfriend) to the police. The victim's statements included defendant's threat to kill her if she cheated on him, made three weeks before her alleged murder.192 On appeal, the defendant argued that admission of these statements violated his right to confrontation under Crawford.193 The California Court of Appeals and the California Supreme Court disagreed, holding that the defendant had forfeited his right to confrontation under the state evidence rules by procuring the victim's unavailability at trial.194
When Giles reached the Supreme Court, Justice Scalia, once again writing for the majority, found that a defendant does not forfeit his right to confrontation by his own wrongdoing, unless the prosecution can establish that the defendant intended through his actions to prevent the witness from testifying.195 After Giles, it is not enough for the declarant to anticipate that his wrongdoing will procure the witness's absence from trial—that must be his intent. Giles has no impact, however, on the admissibility of nontestimonial statements.
Giles presumably limits forfeiture of confrontation to cases where courts make a specific finding of the defendant's purpose/intent.196 Post-Giles, the lower courts have elaborated on this conclusion. For example, in Commonwealth v. Szerlong197 the Supreme Judicial Court of Massachusetts held that forfeiture need not be based on a criminal act if three criteria are satisfied: "(1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness's unavailability."198 Thus, the court in Szerlong found that a defendant who married the alleged victim of his domestic assault (with the purpose of enabling her to claim her spousal privilege and avoid testifying at trial) forfeited his right to confrontation.199 The Supreme Court of Illinois recently addressed a different open question clarifying that evidence admitted following a defendant's forfeiture of the right to...
