Federal Evidence Review

Supreme Court revisits forfeiture by wrongdoing exception: In People v. Giles, the Court probes whether a defendant who murders a witness forfeits the Sixth Amendment right to confront that witness even if he acted not intending to rendering the witness unavailable at trial.

Once again, the Supreme Court is considering the boundaries of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 62 (2004). On April 22, 2008, oral argument was heard in Giles v. California (No. 07-6053).

In Giles, the question presented is:

"In Crawford v. Washington, 541 U.S. 36, 62 (2004), this Court recognized that the forfeiture by wrongdoing rule ‘extinguishes confrontation claims on essentially equitable grounds.’ The question presented by this case is: Does a criminal defendant ‘forfeit’ his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant's actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?" Petitioner’s Brief on the Merits, at i.

In People v. Giles, after the defendant shot his ex-girlfriend six times, he claimed self-defense. At trial, the defendant took the stand and described his "tumultuous relationship" with his former girlfriend that he was trying to end. He was also aware that his ex-girlfriend had previously shot a man and had vandalized his home and car. He claimed she knew his new girlfriend was at the house and told him she was coming over to kill her.

The government then introduced a statement of the ex-girlfriend made to police investigating a domestic violence dispute a few weeks before the shooting. On that occasion, the victim told police that the defendant threatened her, "opened a folding knife, held it about three feet away from her, and said, 'If I catch you fucking around I’ll kill you. ' "

The jury convicted the defendant of first degree murder. The California Supreme Court upheld the admission of the victim’s statement under the forfeiture by wrongdoing exception. The defendant forfeited his confrontation right to the prior statement by causing the murder of the victim.

The transcript of the Supreme Court Oral Argument in Giles sheds some light on the Confrontation Clause and poses some interesting issues. The following initial observations are raised:

• As the Crawford Court made reference to the rule of forfeiture, what should be the scope of the rule? In Crawford, the Court noted: "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability. See Reynolds v. United States, 98 U. S. 145, 158–159 (1879). " Crawford, 541 U.S. at 62. Chief Justice Roberts asked whether recognizing the forfeiture doctrine as requested by the State of California (where the defendant causes the murder of the unavailable witness) would "drive a pretty big hole through Crawford?" Giles v. California, Transcript, at 31 (April 22, 2008).
• What intent is required, if any, to apply the forfeiture rule? If the defendant does not intend to preclude the victim’s testimony, should the forfeiture rule apply? Testing the boundaries of this issue, Justice Kennedy asked whether the rule should apply if the "Defendant negligently runs over the victim." Giles v. California, Transcript, at 39 (April 22, 2008).
• How would a forfeiture by wrongdoing exception compare with the dying declaration exception? In Crawford, the Court suggested that dying declarations that are testimonial may be admissible as an exception: "We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis." Crawford, 541 U.S. at 56 n.6. During the Giles oral argument, a number of Justices contrasted the dying declaration hearsay exception, which the CrawfordCourt noted is admissible under the Confrontation Clause, which normally requires a showing that the declarant is aware of impending death.
• To what extent should it matter if the statement is "testimonial" or "non-testimonial"? Justice Ginsburg noted 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, Transcript, at 31 (April 22, 2008). This question goes to the core of the Crawford holding.
• If there is a Confrontation Clause violation, would the conviction be affirmed under the harmless beyond a reasonable doubt standard? Justice Alito wondered whether any error would be harmless beyond a reasonable doubt since "the California Supreme Court and the Court of Appeals said it is inconceivable that any rational trier of fact would have concluded that the shooting was excusable or justifiable." Giles v. California, Transcript, at 16-17 Giles (April 22, 2008). Justice Ginsburg also noted if there was a violation, harmless error analysis would apply. Giles v. California, Transcript at 49 (April 22, 2008).
• Justice Ginsburg noted that the challenged statement was introduced after the defendant testified and gave his version of the events culminating in the murder. Justice Ginsburg queried whether the victim’s statement could be introduced in rebuttal or on cross-examination. Justice Scalia noted there was no “rebuttal exception to the hearsay rule." Giles v. California, Transcript, at 6-7 (April 22, 2008).