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

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.