To combat the ever-expanding problem of witness intimidation, courts have employed familiar concepts of conspiracy liability to justify the extension of the forfeiture by wrongdoing doctrine in the context of group criminality. Under what is known as the Cherry doctrine, one co-conspirator’s misconduct in making a witness unavailable can generally be imputed to another co-conspirator defendant to forfeit the latter’s Confrontation Clause rights. In 2008, in Giles v. California, the U.S. Supreme Court added a wrinkle to this forfeiture analysis that seemingly put the Cherry doctrine in jeopardy. By inserting a new element of intent, the Giles decision potentially limited forfeiture to situations in which a defendant personally possessed the intent to make a witness unavailable. Despite what some commenters have suggested, however, the Cherry doctrine survives the Giles Court’s shift in emphasis. Even though Giles now requires the intent to make a witness unavailable, the scope of the forfeiture by wrongdoing doctrine remains unchanged in the co-conspirator context. So long as one co-conspirator possesses the intent to make a witness unavailable, this intent can be imputed to the defendant, thus allowing the Cherry doctrine to live on.

Boston College Law Review

Cherry Still on Top: How Pinkerton Concepts Continue to Govern Co-Conspirator Forfeiture of Confrontation Rights Post-Giles

On November 22, 2011, in Hill v. Humphrey, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that a petitioner’s federal habeas petition challenging his death sentence must be denied in light of the degree of deference owed to the state habeas court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In so doing, the court rejected the petitioner’s argument that Georgia’s beyond a reasonable doubt standard for proving a defendant’s intellectual disability is unconstitutionally stringent and thus eviscerates the right of the intellectually disabled to be exempt from capital punishment, a right clearly constitutionalized by the U.S. Supreme Court in Atkins v. Virginia. This Comment argues that the majority’s overly strict approach in Hill has produced an unduly deferential standard for federal review of state court decisions. Consequently, under this approach, important constitutional protections—like that exempting the intellectually disabled from execution—are denied without recourse.

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Cherry Still on Top: How Pinkerton Concepts Continue to Govern Co-Conspirator Forfeiture of Confrontation Rights Post-Giles

Insurmountable Hill: How Undue AEDPA Deference Has Undermined the Atkins Ban on Executing the Intellectually Disabled