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Confrontation – Forfeiture, pre-Giles (2008)

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Giles v. California, 554 U.S. 353 (2008) fundamentally altered the confrontation-forfeiture doctrine: There, the Court held in effect that the forfeiture doctrine “applie(s) only when the defendant engaged in conduct designed to prevent the witness from testifying,” although the Court also allowed that “(e)arlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” Thus, viability of pre-Giles authority, such as State v. Mark D. Jensen, 2007 WI 26, ¶57 (“we adopt a broad forfeiture by wrongdoing doctrine, and conclude that if the State can prove by a preponderance of the evidence that the accused caused the absence of the witness, the forfeiture by wrongdoing doctrine will apply to the confrontation rights of the defendant”), is doubtful.

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