Cornell Law Review

How Giles v. California would affect domestic violence cases was hotly debated within the case itself and in the literature that followed. This article presents the first comprehensive review of the 114 domestic homicide cases since Giles in which there was an intimate relationship between the victim and the accused,^{11. The vast majority of the cases concerned couples, whether married or not, but a small minority involved matricide or other intra-family murders.} and the victim had made statements that were sought to be introduced against the defendant.^{22. For a thoughtful review of non-fatal domestic violence cases that struggled with the forfeiture issue post-Giles, see Aviva Orenstein, Forfeiture of Confrontation Rights and the Complicated Dynamics of Domestic Violence: Some Thoughts Inspired by Myrna Raeder, 44 SW. L. REV. 466, 473–74 (2015) (reviewing “post-Giles domestic violence prosecutions that raised the issue of forfeiture, but did not involve the death of the witness”).} In general, the courts were not overtly critical of Giles, although they also seemed entirely uninterested in its originalist underpinnings. Yet they managed to overturn very few convictions. Whether they were simply tuning out what they perceived to be Supreme Court posturing and getting on with business as usual, or merely following the facts and the law where these took them, the lower courts’ response to Giles makes for an interesting case study in what happens when the Supreme Court issues rules that the lower courts disagree with.

This Article proceeds in three parts. Part I reviews the reinvigorated Confrontation Clause jurisprudence launched by Crawford v. Washington and the new hurdles to proving forfeiture by wrongdoing.^{33. Note that while I refer to these hurdles as “new,” they are actually coterminous with the requirements of the Federal Rules of Evidence regarding forfeiture by wrongdoing. See FED. R. EVID. 804(b)(6) (defining a “Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability” as a “statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result”).} Part II analyzes how the state courts and lower federal courts have resolved forfeiture issues in 114 domestic homicide cases since Giles v. California. Part III critiques the three foundational policies that support Giles, namely fairness to the defendant, evenhandedness among victims, and deference to history, and explores how these fared in the trial courts. It concludes that domestic homicides present a situation where the ideological commitments of the higher Court do not map comfortably onto the real-life situations faced by the trial courts.

To read this Article, please click here: The State Courts Don’t Have Time for Your Crackpot Antiquarianism: A Decade of Domestic Homicides Since Giles V. California.