Only testimonial statements are excluded by the Confrontation Clause.
Giles was convicted of first-degree murder after the victim's prior out-of-court statements were admitted under Cal. Evid. Code § 1370 (2008). The California Supreme Court affirmed the conviction on the ground that Giles had forfeited his right to confront the victim because he had committed the murder for which he was on trial and because his intentional criminal act made the victim unavailable to testify. Certiorari was granted.
Did Giles forfeit his right to confront the victim because he had committed the murder for which he was on trial for and because his intentional criminal act made the victim unavailable to testify?
The theory of forfeiture by wrongdoing accepted by the State Court was not a founding-era exception to the confrontation right because the manner in which the common law forfeiture rule was applied made plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. There was no basis for the State's argument that a defendant who committed some act of wrongdoing that rendered a witness unavailable forfeited his right to object to the witness's testimony on confrontation grounds, but not on hearsay grounds. Moreover, the State's proposed exception was not supported by case law subsequent to founding as the wrongful procurement rule did not depend on confrontation.