Myrna Raeder (Southwestern University School of Law) has posted Being Heard after Giles: Comments on the Sound of Silence (Texas Law Review, Vol. 87, p. 105, 2009) on SSRN. Here is the abstract:
This is a comment on Tom Lininger’s article The Sound of Silence: Holding Batterers Accountable for Silencing their Victims, 87 Texas L. Rev. 857 (2009), which analyzes the Giles case. The essay questions the application of originalism in the context of domestic violence; and suggests that statements describing past crimes should not be considered testimonial when they are offered as circumstantial evidence of different crimes that are committed subsequent to the time of their uttering, and are not an element of the current crime. It argues that Professor Lininger’s per se rules for forfeiture should be viewed as rebuttal presumptions, and that the existence of a protective order should suffice to prove forfeiture without requiring evidence that the order was violated. In analyzing Giles’ inferred intent approach to forfeiture, the essay takes a broad view of foreseeability, and also argues that character evidence of a defendant’s abusive personality should suffice to prove inferred intent forfeiture since it is being offered as evidence of a Rule 104(a) preliminary fact, not as evidence at trial. In conclusion, the essay rejects the need for a broad forfeiture exception that would be applicable to nontestimonial hearsay, contending that other exceptions are better suited to provide admissibility, and that expanding forfeiture would have unforeseen consequences in contexts beyond domestic violence.