Does Giles v. California eliminate the need for the current congressional attention to FRE 804(b)(6) (Forfeiture By Wrongdoing)?
Before Giles was decided on June 25, 2008, the Senate adopted a measure which directed the U.S. Judicial Conference to review the forfeiture by wrongdoing rule. The provision provided:
Sec. 205. Study Of Hearsay Exception For Forfeiture By Wrongdoing.
The Judicial Conference of the United States shall study the necessity and desirability of amending section 804(b) of the Federal Rules of Evidence to permit the introduction of statements against a party by a witness who has been made unavailable where it is reasonably foreseeable by that party that wrongdoing would make the declarant unavailable.
The legislation, S. 456 (Gang Abatement and Prevention Act of 2007), was introduced by Senator Dianne Feinstein (D-CA) on January 31, 2007. On June 14, 2007, the Senate Judiciary Committee approved the measure with amendments but without any report. The Senate passed the bill on September 21, 2007. The legislation is pending in the House before the Committees on the Judiciary, Energy and Commerce, and Education and Labor.
The question raised after Giles is whether the rationale for this legislative provision remains and whether further study or possible amendment of FRE 804(b)(6) (Forfeiture By Wrongdoing) is necessary? After Giles, any "testimonial" statements considered under the forfeiture by wrongdoing rule would have to comport with the Giles standard. During the oral argument on Giles, Justice Ginsburg drew this distinction when she observed that if the victim’s statement had been made to a friend, it would not be "testimonial," under Crawford, but since she gave the statement to police it was "testimonial." Giles v. California, Giles v. California, Transcript at 31 (April 22, 2008).
FRE 804(b)(6) was adopted in 1997. Prior to this rule, the forfeiture by wrongdoing doctrine found support in the case law. See, e.g., United States v. Johnson, 495 F.3d 951, 970 (8th Cir. 2007) (2007) (rejecting challenge that 1997 codification of Rule 804(b)(6) was four years after the murders because the common law recognized the forfeiture by wrongdoing doctrine before 1997), petition for cert. filed, Feb. 19, 2008 (No. 07-9456).
The Giles case has previously been the subject of blog posts on June 26, 2008 (Giles, the Confrontation Clause and Forfeiture by Wrongdoing), and June 21, 2008 (Giles Confrontation Clause Decision Expected Soon).
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