Losing the Right to Confront: Defining Waiver to Better Address a Defendant’s Actions and Their Effects on a Witness
Part I of this Note examines the current legal landscape regarding a defendant’s waiver of the right to confrontation. This Part explores the justifications courts have provided for finding a waiver of the confrontation right, both through the use of the traditional “intentional relinquishment of a known right” standard and the less precise formulations of waiver found in cases of defendant misconduct. Part II offers a critique of the reasoning courts employ to find waiver of the right to confrontation. In the process, the analysis explores general theories of waiver which have been advanced by other commentators. In so doing, this Note seeks to arrive at a theory of waiver of the confrontation right through a defendant’s misconduct which is both descriptive, in that it more accurately characterizes what courts are either doing or attempting to do, and normative, in that it offers an understanding of waiver which, if employed, can better protect the rights of witnesses and defendants. Part III then applies this theory of waiver to the context of child abuse.