The Giles decision does not close the door on use of testimonial statements made by the victim in domestic violence cases. A majority of the court held that a history of "classic abuse" involving silencing the victim, preventing her from getting help or reporting the abuse, would suffice to establish the intent necessary for forfeiture of the right of confrontation. Justice Scalia, in an opinion joined by six justices, noted:

"Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant…." Op., p. 23.

A court considering admissibility of an unavailable victim's statements may therefore consider the history of abuse prior to the charged crime in determining whether the defendant has forfeited the right of confrontation by his own wrongdoing.

The Forfeiture Doctrine:  State of Missouri v. McLaughlin

Among the types of evidence that the Giles Court identified as probative in determining a defendant’s specific intent to prevent a victim from testifying at trial are evidence of “[e]arlier abuse, or threats of abuse, intended to dissuade the victim from reporting to outside help” and “evidence of ongoing criminal proceedings at which the victim would have been expected to testify.”  These would be “highly relevant” to “support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine.” Giles v. California, 554 U.S. ____, 128 S. Ct. 2678, 2693 (2008).

Using these criteria, the Missouri Supreme Court upheld application of the forfeiture doctrine to admit a murder victim’s prior statements concerning the defendant’s pattern of stalking and harassment of her. State v. McLaughlin, 265 S.W.3d 257 (Mo. Banc. 2008).   At the time of the murder, the defendant had been facing prosecution for burglary of the victim’s home, and her statements were included in her victim impact statement in that case. The Court took particular note of the Supreme Court’s discussion of the application of the forfeiture doctrine to domestic violence, particularly when the evidence supported a finding that the murder was intended to prevent the victim from cooperating with a criminal prosecution. The pendency of the burglary prosecution, additionally, constituted evidence of “ongoing criminal proceedings at which the victim would have been expected to testify,” the Giles standard. The victim impact statement was also successfully introduced against the defendant at his trial for the burglary that had preceded the murder.  State v. McLaughlin, No. ED90801 (Mo. Ct. App., E. Dist.) December 30, 2008.