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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.
In this comment, Professor King-Ries explores Professor Lininger’s proposed solution to the conundrum created by the Supreme Court’s decision in Giles v. California, regarding forfeiture by wrongdoing in the domestic violence context.
Professor Lininger advocates the creation of bright-line rules for determining when it is appropriate to infer a defendant’s intent to prevent his victim from testifying. Profesor King-Ries agrees this is the right approach but finds the rules incomplete. Instead, Professor King-Ries believes that whenever the prosecution can establish that a battering relationship exists between the defendant and the victim, it is appropriate to infer the defendant’s intent to prevent the victim from testifying for the purposes of the forfeiture by wrongdoing doctrine. However, Professor King-Ries explains that a battering relationship can involve more than just violent conduct—such as control over financial resources, or emotional isolation—and that because Professor Lininger’s bright-line rules focus only on the violence aspect, they may be inadequate. For example, a defendant’s confiscation of the victim’s credit cards after the victim’s reporting of a violent incident might be far more effective at preventing testimony than a punch, but it would fall outside Professor Lininger’s per se rule regarding acts of violence during the pendency of the prosecution.
In this comment, Professor Hanna explains why she believes Professor Lininger’s article is so important: it develops a test for getting around the problem created by the Supreme Court for the prosecution of domestic violence murders.
The problem created in Giles is that prosecutors are required to prove that the defendant had the specific intent to silence his victim when he killed her, before allowing forfeiture of confrontation rights. However, Professor Lininger’s article grabs onto language in the majority and concurring opinions suggesting that lower courts are permitted to infer that intent, and develops three per se rules for when it is appropriate. She believes that since this test focuses on the broader context of domestic violence abuse, as opposed to focusing on just the moment the murder occurred, it should help prosecutions of domestic abusers.
She also focuses on the question of whether advocates for the victims of domestic abuse should emphasize the gender bias in these crimes, showing how the law treats women unfairly in this context, or whether they should de-emphasize it in order to win over the likes of Justice Scalia. After discussing the issue, she concludes that trying to win over Justice Scalia is pointless because he is too committed to originalism in the Confrontation Clause context to be affected either way by the disparate impact this has on women.
In this Comment to Professor Lininger’s article, Professor Miccio focuses on two important moral dilemmas highlighted by the Court’s decision in Giles v. California: “(1) whether a search for truth should be sacrificed to our notions of Due Process; and (2) whether Giles’s protection of the accused is premised on beliefs tainted by sexism.”
She argues that the Court’s opinions in Giles, Davis v. Washington, and Town of Castle Rock, Colo. v. Gonzalez, which were all written by Justice Scalia, reflect Scalia’s contempt for battered women. In Miccio’s opinion, Scalia’s formalistic legal reasoning in this area of the law has been inconsistent, while his misogynistic view of women has been undeniably constant.
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.
In this comment, Professor Lerner addresses several points about Professor Minzner’s article.
First, he suggests that courts may already consider officer success rates, at least qualitatively, in the form of “officer experience.” He argues that courts are more likely to believe more experienced officers, and likewise more experienced officers are more likely to be successful in searches. Professor Lerner also takes issue with Professor Minzner’s claim that incorporating officer success rates will make the probable cause determination more accurate because the article does not fully develop the meaning of probable cause. The comment explores some possibilities and problems associated with various conceptions of the term. Also, Professor Lerner addresses Professor Minzner’s claim that his proposal will mitigate the problem of “testilying,” suggesting it is unclear if this claim would hold true in the suppression hearing context. Finally, the comment suggests that the record-keeping burden placed on police officers by this proposal may be too onerous, which could deter some officers from applying for warrants in the first place.
In this comment, Professor Rosenthal agrees that success rates of officers should be taken into account in making probable cause determinations, but points out one area that Professor Minzner may have overlooked: the problem of overdeterrence.
If the success rate of every officer is scrutinized, and officers are indeed sensitive to the exclusion of evidence or the potential for civil liability, it is likely they will simply refrain from conducting searches except when the likelihood of success is extraordinarily high. Professor Rosenthal suggests that this should be a cause for great concern because a decrease in the number of searches in high-crime areas could lead to a substantially higher crime rate, especially violent crime. He concludes, however, that this should not point towards disregarding Professor Minzner’s proposal, but discusses two solutions to the problem.
In this comment, Professor Outterson challenges Professor Roin's argument that pharmaceutical innovation and public health are harmed by the patent doctrines of non-obviousness and novelty.
He argues that obscure or accidental publications are not actually pushing too many inventions into the public domain and thus substantially limiting the patent eligibility of subsequent pharmaceutical inventions. Outterson particularly disputes Roin's use of the pain medication Ultracet as an example of such harm. After reviewing the factual circumstances surrounding the drug's design, the patent application process, and subsequent litigation challenges, he concludes that: the disclosure of the prior art that limited Ultracet's patentability was not inadvertent; that Ultracet was successfully patented and commercialized notwithstanding the public domain (and did not unduly suffer from free riding); and that ultimately Ultracet was not a particularly valuable drug. The Ultracet case explored in this comment raises very interesting counterpoints to Roin's claims concerning the real-world harms caused by the non-obviousness and novelty doctrines.
