Document Type

Response or Comment

Publication Date

2009

First Page

85

Volume

87

Source Publication Abbreviation

Tex. L. Rev. See Also

Abstract

In his article, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, Tom Lininger attempts to "facilitate the effective prosecution of domestic violence cases, particularly domestic homicide, while complying with the new requirements announced [for forfeiture by wrongdoing] by the Supreme Court in Giles [v. California]."' In doing so, Lininger tackles a wide array of topics, including analyzing the "theoretical underpinnings" of forfeiture by wrongdoing; explicating the Giles decision, criticizing Justice Scalia's originalist approach for its "selective historical research . . . conflation of evidentiary and constitutional forfeiture theories, and . . . vacillation between objective and subjective standards for assessing intent"; 3 developing a "new jurisprudential framework" for forfeiture analysis;4 and proposing amendments to Federal Rule of Evidence 804(b)(6)-the federal forfeiture by wrongdoing rule. While many of these topics are interesting and worthy of scholarly response, I intend to limit my comments to Lininger's proposed solution to the conundrum created by the Giles v. Calfornia' decision. The Court in Giles held that forfeiture by wrongdoing is limited to when the prosecution can prove the defendant intended to prevent the victim from testifying against him.6 Prior to Giles, many courts had held that the defendant's intent for forfeiture by wrongdoing could be inferred when the defendant killed his victim. The Giles Court disagreed, finding it was inappropriate to infer the defendant's intent. Many contend that this decision creates a perverse incentive for domestic violence defendants to kill their intimate partners in order to best capitalize on their confrontation rights.8 As one who has viewed forfeiture by wrongdoing as a potential solution to the battering dynamics in domestic violence cases, I find myself intrigued by Lininger's efforts to create "bright-line" rules, even after Giles, for when it is appropriate to infer the defendant intended to prevent the victim from testifying. While I ultimately find Lininger's proposed "bright-line" rules incomplete, I wholeheartedly agree with his effort to create situations in which inferring intent is constitutionally appropriate. In this way, courts can address the reality of domestic violence and prevent the defendant benefitting from additional violence.

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