The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the "purpose" requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by longstanding precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is narrow, other victim hearsay often is available, and prosecutors have proven "purpose" for decades. Nevertheless, the purpose requirement of Giles, and ultimately Crawford's protection of the Confrontation Clause, will be undermined unless the courts require strict "but for" proof of the reason for the witness's absence, including proof that the witness did not have independent personal reasons for avoiding testifying. The government's good faith obligation to produce witnesses must be strengthened to avoid making forfeiture so easy that there is a perverse incentive to rely on it, rather than diligently seeking and producing witnesses. The author concludes by identifying the problems in using expert testimony to infer causation only from a prior history of domestic discord.
James F. Flanagan, We Have a "Purpose" Requirement If We Can Keep It, 13 Lewis & Clark L. Rev. 553 (2009).