Preliminarily Guilty? Reflexive Confrontation Forfeiture
Loading...
Authors
Donaldson, Tim
Issue Date
2016-12
Volume
50
Issue
1
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|A criminal defendant forfeits the constitutional right to confront a witness if the defendant purposefully prevents the witness from testifying at trial. The rule "is applicable to a missing witness's statements even in a trial for murdering that witness ..." The application of the rule in these types of cases has been referred to as reflexive forfeiture. In such cases, the alleged misconduct causing confrontation forfeiture is the same underlying act for which a defendant is criminally charged. This creates a potential conundrum because the doctrine applies only if the trial judge makes "a preliminary finding of fact that the defendant's wrongful conduct prevented the witness's testimony." In other words, a trial judge inescapably must make a preliminary determination regarding a defendant's ultimate guilt whenever reflexive confrontation forfeiture is at issue....
Description
Citation
Publisher
Creighton University School of Law