James F. Flanagan

87 Texas L. Rev. See Also 67

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In this comment, Professor Flanagan explains that he disagrees with Professor Lininger’s approach to the forfeiture issue, and in particular opposes the use of bright-line tests to satisfy Giles’ inferred intent standard.

Professor Flanagan argues that the Supreme Court correctly defined the limits of the forfeiture by wrongdoing doctrine in Giles, noting that history and precedent both support having the intent requirement, even if you are not an originalist.  Furthermore, Professor Flanagan believes that Giles will probably not have as detrimental an effect on domestic violence prosecutions as some believe, and that this claim is premature; there are still many victim statements that are capable of admission despite the renewed approach to the Confrontation Clause.  Furthermore, because there cannot be one law for domestic violence cases, and another for all other types of crimes, Professor Flanagan explains his worry that zeal for convicting domestic abusers will undermine this important Constitutional right.  Finally, he examines Professor Lininger’s proposals in detail, suggesting they are not necessary.