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More Commentary on Giles: In an article posted on FindLaw's Writ, Sherry F. Colb discusses Giles v. California, a case argued before the Supreme Court in April. Giles addresses whether the "forfeiture by wrongdoing" clause allows testimonial statements to be admitted against the defendant, when the defendant has killed the witness. Colb gives an in depth analysis of the case, and the Sixth Amendment's Confrontation Clause. She also dissects the merits of both the defendant's and prosecutions arguments in Giles. Particularly interesting is Colb's point that "there is something peculiar about adhering to the forfeiture-by-wrongdoing exception" of the Confrontation Clause simply because it was part of the common law when the Sixth Amendment was drafted. Colb notes:

"For one thing, the Sixth Amendment (and the Bill of Rights more generally) did not originally apply to the states at all but only to the federal government. It was therefore the framers of the Fourteenth Amendment (through which the Sixth Amendment was incorporated against the states), rather than of the Sixth Amendment itself, whose intent should be examined, if in fact “framers’ intent” is the correct way to approach the contours of exceptions to the Sixth Amendment Confrontation Clause at a state trial. "

Chief Justice Roberts and the Marks Rule: Orin Kerr at Volokh Conspiracy has this post on the few 5-4 U.S. Supreme Court decisions issued this term. Kerr hypothesizes the number of 5-4 decisions could be part of the Chief Justice's strategy of "aiming towards the middle" of the Court in its decisions. Kerr hypothesizes the Chief Justice may be more willing than his predecessor, Chief Justice Rehnquist, to allow plurality opinions than to force majority opinions out of a closely divided court. Kerr writes: "By taking a center-right position, he has a chance of picking up a vote from one of the liberal-leaning Justices who feel they can gain more by joining a center-right opinion than by dissenting. End result: fewer 5-4 decisions."

Ohio AG: Doug Berman at SL&P has this post on Gov. Strickland's appointment of OSU Law Dean Nancy Hardin Rogers as AG. She does not intend to run for the office in November and will return to academia after the election.


I have to admit I am a little rusty on selective incorporation, but doesn't Colb's view lead inescapably to the idea that the Sixth Amendment, as applied to the states is to be different from the Sixth Amendment as applied to the federal government?

Could be. See Duncan v. Louisiana, 391 U.S. 145, 181-183 (1968) (Harlan, J., dissenting).

Of course, divining what Colb is getting at (other than her obvious unease with this type of evidence and her concession that the purpose/non-purpose distinction is pretty weak) is a chore given her prose, e.g., "If the inequity that sparked the Sixth Amendment logically includes the case of forfeiture by wrongdoing, then so much the worse for the forfeiture-by-wrongdoing exception, however narrowly construed."

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