Myrna S. Raeder

87 Texas L. Rev. See Also 105

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In this comment, Professor Raeder examines the major claims in Professor Lininger’s article, agreeing with some but not all of his suggestions.

First, she agrees that an originalist approach to the Confrontation Clause will not work in the domestic violence context because domestic violence was not even criminalized at the time of the founding, and explores this area further.  Next, she examines the per se rules that Professor Lininger proposed for inferring intent to silence the victim in domestic violence cases.  While she thinks these rules will help simplify forfeiture decisions and believes they should provide sufficient evidence of forfeiture, she would add that the rules should be rebuttable presumptions.  The defendant should be able to rebut whether in the individual case they actually prove the existence of the inferred or actual intent supporting forfeiture.  Also, she believes that it would be appropriate to allow the admission of other forms of evidence sufficient to prove forfeiture.  Specifically, she would expand Professor Lininger’s per se rules to include two other categories: proof that the defendant has an abusive personality, and proof that the decedent suffered from Post Traumatic Stress Disorder, explaining why this would be helpful.  Finally, she focuses on Professor Lininger’s efforts to redefine the forfeiture hearsay exception.  She believes that it would still be better to confine the exception to the witness tampering context because it lacks reliability, and can be more directly dealt with by other hearsay exceptions.