Giles Confrontation Clause ruling on scope of the forfeiture by wrongdoing exception
Yesterday, the U.S. Supreme Court issued its latest Confrontation Clause decision, in a 6 to 3 ruling, following its landmark opinion in Crawford v. Washington, 541 U. S. 36 (2004). After Crawford, the norm is that before "testimonial" statements may be admitted, the government must show (a) the witness is unavailable and (b) the defense had a prior opportunity to cross-examine. Only two exceptions apply to this rule, either the dying declaration exception or the forfeiture by wrongdoing exception. Both exceptions were recognized at the time the Confrontation Clause was adopted.
In Giles v. California, the Court clarified that the forfeiture by wrongdoing exception requires "a showing that the defendant intended to prevent a witness from testifying." Without this showing, the statements of the unavailable witness are inadmissible under this Confrontation Clause exception. The Court vacated the first degree murder state court judgment because the state court had applied a broader exception which did not require a showing of intent. As the Court noted, "The state courts in this case did not consider the intent of the defendant because they found that irrelevant to application of the forfeiture doctrine. This view of the law was error, but the court is free to consider evidence of the defendant’s intent on remand." Interestingly, the Court did not consider whether the error harmless beyond a reasonable doubt. Justice Alito and Justice Ginsburg had posed this issued during oral argument. Giles v. California, Transcript at 16-17, 49 (April 22, 2008). The Giles case and argument was recently considered on this blog last Saturday in "Giles Confrontation Clause Decision Expected Soon."
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