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June 26, 2008

Professor Tom Lininger’s Work Cited by Justice Breyer in Giles v. California Dissent

Dissenting in the case of Giles v. California, 554 U.S. ____ (2008), Justice Stephen Breyer has cited Professor Tom Lininger’s article, “Prosecuting Batterers after Crawford,” 91 Va. L. Rev. 747 (2005).  In Giles, the majority held that in a homicide prosecution, the accused can invoke the Confrontation Clause to exclude the victim’s hearsay even if the victim’s death resulted from the charged offense.  In his dissent, Justice Breyer concluded that in such a situation, the defendant, through his wrongdoing, forfeits his Confrontation Clause right.  Justice Breyer’s dissent can be found at http://docs.justia.com/cases/supreme/slip/554/07-6053/dissent.pdf.
 
In addition, the majority opinion cites an Oregon law allowing hearsay evidence in cases of domestic violence, elder abuse, and child abuse that Professor Lininger drafted and that Oregon Governor Ted Kulongoski signed into law in 2005.  The majority opinion can be found at http://docs.justia.com/cases/supreme/slip/554/07-6053/opinion.pdf.  

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