8 Forfeiture and dying declarations (FRE 804(b)(2), (6))
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The confrontation right and hearsay objections are subject to forfeiture by certain types of misconduct and also to an exception for dying declarations; in some jurisdictions, these doctrines are not necessary because of a broad hearsay exception for statements by unavailable declarants. Forfeiture is based on the idea that a person who wrongfully prevents a witness from testifying should not be allowed to complain about his consequent inability to examine that witness. The dying-declaration exception has traditionally been based on the perceived trustworthiness of statements made when the declarant believes death is imminent. This chapter argues that dying-declaration doctrine should instead be brought within the forfeiture rubric; statements traditionally deemed dying declarations generally fall outside what should be deemed a state duty to mitigate the effects of forfeiture. But such a result appears to be foreclosed for now in the United States by Giles v. California (2008), which significantly limited the scope of forfeiture doctrine for purposes of the Confrontation Clause by holding that forfeiture applies only if the party opponent “engaged in conduct designed to prevent the witness from testifying.” Giles was based on historical and equitable arguments and on the “near circularity” of a judicial determination that the accused caused a death supporting admission of evidence leading to a verdict of guilt for causing that death. This chapter challenges all these arguments, and contends that Giles has led to an unduly narrow view of what statements are deemed testimonial.

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