Putting Forfeiture to Work Sarah M. Buel* Intimate partner violence (“IPV”) victims are increasingly turning to the courts for help, too often with poor results. Successful witness tampering by offenders sabotages the court system by silencing victims through an array of unlawful conduct, including coercion and violence. The doctrine of forfeiture by wrongdoing should afford a viable solution, but several obstacles constrain its efficacy. Much confusion exists regarding witness tampering and forfeiture law as a result of the recent trilogy of the Crawford, Davis, and Giles Supreme Court decisions. Their cumulative effect is decreased doctrinal uniformity within a perplexing scheme that is difficult to implement. The resulting uncertainty contributes to massive ongoing underenforcement of witness tampering laws and conflicting interpretations of forfeiture doctrine. In response, this Article advances two main arguments: first, the forfeiture doctrine’s application in IPV cases has been woefully inadequate; and second, a more robust notion of forfeiture is needed to clarify and empower the intent-to-silence calculus. A pernicious backlash by legal stakeholders against IPV victims further taints the process, as does the frequent and system-wide minimization of victim harm. This Article locates the courts’ ambivalence in community norms that must evolve to ensure forfeiture can be the remedy its drafters intended. A more vigorous forfeiture doctrine will further the legislative intent of offender accountability coupled with victim protection and resuscitate the law’s crucial signaling aspect. IPV victims’ * B.A., Harvard Extension School; J.D., Harvard Law School; Clinical Professor, University of Texas School of Law; former domestic violence and juvenile prosecutor, and advocate since 1977. For comments, discussion, and advice I thank Jens Dammon, Mike Denton, Zanita Fenton, Jack Getman, Kelly Gier, Steve Goode, Eugene Hyman, Melissa Hamilton, Sherilynn Ifell, Paula Monopoli, and Jay Westbrook. I also thank faculty colloquium participants at the University of Maryland School of Law and the Arizona State University Sandra Day O’Connor School of Law; and U.T. School of Law drawing board readers for early suggestions; law students Deidre Ewing, Laura Smith, and Lisa Snead for their research assistance; and Angel Leffingwell for administrative assistance. 1295 1296 University of California, Davis [Vol. 43:1295 rights will not be internalized unless the legal paradigm on forfeiture is coherent and committed to both formal and substantive equality. TABLE OF CONTENTS INTRODUCTION ................................................................................. 1297 I. FORFEITURE AS INTENDED REMEDY ........................................ 1308 A. Doctrinal Premise of Forfeiture........................................ 1311 B. Historical Conceptions of Confrontation .......................... 1314 C. Due Diligence .................................................................. 1319 II. PREDICATE WITNESS TAMPERING ........................................... 1322 A. The Aftermath of Crawford, Davis, and Giles ................. 1325 1. Endangered and Discouraged Victims ..................... 1328 2. Race and Socioeconomic Status ............................... 1331 3. Community Backlash Against IPV Victims .............. 1335 4. Misuse of Chronic Nuisance Laws ........................... 1338 B. Abusive Control ............................................................... 1340 C. Coercive Threats Implying Violence ................................. 1345 1. Nonverbal Threats .................................................... 1346 2. Harming Victims’ Helpers ........................................ 1348 3. Third Party Accomplices .......................................... 1351 D. Nonviolent Coercion ........................................................ 1356 III. INTENT-TO-SILENCE CALCULUS .............................................. 1359 A. Murder ............................................................................ 1361 B. Pending Legal Proceedings ............................................... 1365 C. Present Protective Order .................................................. 1366 D. Classic Abusive Relationship ............................................ 1367 E. Recantation ..................................................................... 1369 F. Mixed Purpose ................................................................. 1370 G. Admissibility of Nontestimonial Hearsay ......................... 1371 H. Context ............................................................................ 1375 CONCLUSION..................................................................................... 1381 APPENDIX: STATE AND TERRITORY LAWS CONCERNING RETALIATION AGAINST OR INTIMIDATION OF WITNESSES ............................. 1383 2010] Putting Forfeiture to Work 1297 INTRODUCTION Intimate partner violence (“IPV”)1 offenders commit astonishing levels of witness tampering2 with such apparent impunity as to suggest that they act with community and state approval.3 All fifty states, the District of Columbia, and the Commonwealth of Puerto Rico have codified prohibitions against witness tampering,4 including a broad range of defendant conduct that deters or attempts to deter a witness from taking part in legal proceedings. Because witness tampering sabotages the legal system by impeding an IPV victim’s5 ability to access remedies needed to achieve safety, and because it enables guilty 1 The terms “intimate partner violence” and “domestic violence” will be used interchangeably; generally, all refer to one intimate partner using a pattern of physical violence, sexual assault, threats, stalking, harassment, or emotional or financial abuse to control, coerce, or intimidate the other partner. See Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 HOFSTRA L. REV. 1191, 1204 (1993). 2 See, e.g., ME. REV. STAT. ANN. tit. 17-A, § 454(1) (2008) (discussing use of “force, violence or intimidation”); N.Y. PENAL LAW § 215.10-13 (McKinney 2008) (same); see also TEX. PENAL CODE ANN. § 36.05 (Vernon 2007) (same); State v. St. Clair, No. C3-97-1247, 1998 Minn. App. LEXIS 678, at *1-3 (Minn. Ct. App. June 16, 1998) (finding defendant guilty of first-degree witness tampering for forcefully preventing his girlfriend from going to court after he beat her because she refused his order to leave area to avoid testifying against him on prior domestic violence charge). 3 See LORETTA FREDERICK & KRISTINE C. LIZDAS, BATTERED WOMEN’S JUSTICE PROJECT, THE ROLE OF RESTORATIVE JUSTICE IN THE BATTERED WOMEN’S MOVEMENT 34 (2003) (noting that criminal justice system is not overt in its condemnation of domestic violence, and is even less so when batterer engages in noncriminal but otherwise controlling or intimidating behavior); see, e.g., EVAN STARK, COERCIVE CONTROL: THE ENTRAPMENT OF WOMEN IN PERSONAL LIFE 2 (2007) (describing long- term, ongoing, severe abuse that preceded Phil Traficonda’s murdering his wife and judge’s chastisement of wife for remaining with defendant too long); see also G. Kristian Miccio, Exiled from the Province of Care: Domestic Violence, Duty and Conceptions of State Accountability, 37 RUTGERS L.J. 111, 152-53 (2005) (describing state’s role in codifying permission for IPV, e.g., marital rape exemption laws). 4 See John F. Decker, The Varying Parameters of Obstruction of Justice in American Criminal Law, 65 LA. L. REV. 49, 90-92 (2004) (listing state witness tampering statutes). See Appendix for an author-created spreadsheet of every state’s witness tampering, witness intimidation, and obstruction statutes as of Feb. 28, 2009. 5 Law’s taxonomy confers recognition and mandates specific interpretation, as with my deliberate use of the terms “victim,” “survivor,” and “battered woman.” Some have argued that the word “victim” places an abuse survivor in a subordinate position, penalized, yet again, for her partner’s harm. This dispute foreshadows the importance of accurate naming without unnecessarily burdening a term with negative connotation. Black’s Law Dictionary defines victim as “[a] person harmed by a crime, tort, or other wrong,” which certainly captures a rudimentary description of a battered person. BLACK’S LAW DICTIONARY 1598 (8th ed. 2004). 1298 University of California, Davis [Vol. 43:1295 batterers to go free,6 a more robust forfeiture doctrine is necessary to fulfill its legislative intent.7 As early as 1666, the forfeiture concept was cited in American case law for the proposition that if a defendant caused a witness’s unavailability, prior victim statements were permitted to prevent the defendant from benefitting from his own wrongdoing.8 Many of the reasons that animated the Founders to sanction forfeiture have only grown more numerous with recognition of IPV as a crime and the state’s concomitant benefits from its prevention. Situating IPV within the criminal realm was intended to clarify the state’s responsibility for public safety — including that of victims — while bringing to the court’s attention the full range of batterers’ harmful and illegal conduct. Witness tampering includes an array of deleterious coercion, ranging from bribery,9 threats,10 and stalking,11 to 6 See Andrew King-Ries, Forfeiture by Wrongdoing: A Panacea for Victimless Domestic Violence Prosecutions, 39 CREIGHTON L. REV. 441, 442-43 (2006) [hereinafter King-Ries, Forfeiture] (“Through