The Confrontation Clause of the Sixth Amendment normally precludes the state from offering a child's "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's 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's 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.
Clifford S. Fishman, The Child Declarant, the Confrontation Clause, and the Forfeiture Doctrine, 16 WIDENER L. REV. 279 (2010).