Supreme Court Limits Doctrine of 'Forfeiture By Wrongdoing'

The other Supreme Court decision of interest today to criminal law junkies is Giles v. California (pdf). The issue is whether a defendant forfeits his right under the Confrontation Clause "to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial." Hearsay statements made to a police officer that incriminate a defendant typically cannot be used at the defendant's trial unless the person making the statements is available to be cross-examined. A murder victim is obviously unavailable, and the issue was whether an exception to the confrontation rule exists when the defendant has caused the unavailability of the witness.

Giles shot his ex-girlfriend. At trial he claimed he acted in self-defense. A police officer testified that the ex-girlfriend had reported three weeks earlier that Giles had accused her of having an affair and had threatened to kill her.

In a 6-3 decision authored by Justice Scalia, the Court held that a defendant does not forfeit his Confrontation Clause right to bar testimonial statements made outside the courtroom (in this case, the ex-girlfriend's statement to the officer) when the person making those statements has not been cross-examined, even if she's unavailable for cross-examination only because the defendant killed her. The Court rejected the popular notion of "forfeiture by wrongdoing" unless the wrongdoing was designed to prevent the testimony from being given.

It will be up to the lower court to decide whether Giles killed his ex-girlfriend so that she wouldn't testify against him. However that issue is decided, the case against Giles seems strong, and he'll likely be convicted in a new trial even without the hearsay.

The decision suggests that "dying declarations" may be an exception to the Confrontation Clause, but Giles's girlfriend wasn't dying when she talked to the officer.

Some will think the result unfair, but Justice Scalia makes a convincing argument to the contrary:

The common-law forfeiture rule was aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them—in other words, it is grounded in “the ability of courts to protect the integrity of their proceedings.” Davis, 547 U. S., at 834. The boundaries of the doctrine seem to us intelligently fixed so as to avoid a principle repugnant to our constitutional system of trial by jury: that those murder defendants whom the judge considers guilty (after less than a full trial, mind you, and of course before the jury has pronounced guilt) should be deprived of fair-trial rights, lest they benefit from their judge-determined wrong....

[T]he guarantee of confrontation is no guarantee at all if it is subject to whatever exceptions courts from time to time consider “fair.” It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values.

Justice Scalia also examined the dissent's view that the majority decision rewards perpetrators of domestic abuse:

Is the suggestion that we should have one Confrontation Clause (the one the Framers adopted and Crawford described) for all other crimes, but a special, improvised, Confrontation Clause for those crimes that are frequently directed against women?

Both the majority opinion and Justice Souter's concurring opinion leave open the possibility that an abusive relationship may provide evidence that the defendant intended to kill in order to prevent the decedent from testifying against him. As Justice Souter puts it:

[T]he element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.

Whether that suggestion makes sense will depend on the facts of the case. In any event, the decision is another victory for the Confrontation Clause, a right that was becoming increasingly meaningless until the Court revived it in Crawford.

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    Second decision. . . (none / 0) (#1)
    by LarryInNYC on Wed Jun 25, 2008 at 11:18:35 AM EST
    on the front page right now in which "intent" is decisive.  Not being a lawyer that seems to me to be a difficult issue on which to base a legal decision.

    Intent (none / 0) (#3)
    by txpublicdefender on Wed Jun 25, 2008 at 11:22:44 AM EST
    Criminal courts--especially juries--make decisions on intent every day.

    Scalia's not always bad (none / 0) (#2)
    by txpublicdefender on Wed Jun 25, 2008 at 11:21:40 AM EST
    Cases like this remind me of why I don't reflexively hate Scalia as a justice.  He is very strong on enforcing the original intent of some of the Confrontation Clause and the right to jury trial, even when they--GASP!--benefit criminal defendants.  If only we could get enough of the justices to give the same strong enforcement to the 4th Amendment.

    Scalia! (none / 0) (#4)
    by Valhalla on Wed Jun 25, 2008 at 11:58:22 AM EST
    Except he does always have to throw in legal snark.  I was following right along with his reasoning until he accused the concurrence of carving out a special exception for women.  That's not what Kennedy was trying to do.  He was making a general argument and using this particular case as an example.

    Which is why, even when I agree with Scalia, I have little respect for him.


    True! (none / 0) (#5)
    by txpublicdefender on Wed Jun 25, 2008 at 12:01:37 PM EST
    He does love to take his digs.  He usually saves his really biting rhetoric for his dissents, which is why they are way more fun to read--unfortunately, he's not in the dissent nearly as much as he used to be.  

    Scalia has been amazing on (none / 0) (#7)
    by befuddledvoter on Wed Jun 25, 2008 at 12:11:19 PM EST
    Confrontation Clause issues!!!!  WOW!!!

    I can generally buy this decision (none / 0) (#6)
    by Carolyn in Baltimore on Wed Jun 25, 2008 at 12:07:33 PM EST
    My question comes up if the only determinator of intent would be the witnesses prior conversations with police/friends/family.
    One would say that there would be evidence of an abusive relationship.
    However I can attest that I was once in a verbally abusive relationship where the abuser took care not to act in public. If no one I spoke to about how I was treated could testify as to the relationship since it would all be hearsay, what then?

    I can see limiting hearsay evidence but at some point a witness who is dead/unable should be heard.

    fair tradeoff? (none / 0) (#8)
    by DandyTIger on Wed Jun 25, 2008 at 12:20:01 PM EST
    INAL, but the issue you have could fall into the Jefferson adage that 1000 guilty people go free to keep 1 innocent person out of jail. It seems like we can't make a system that will get every single wrongdoer without making things too easy to imprison the innocent. It's not a fun tradeoff, but I think it will always be there. And dealing with hearsay seems like a perfect example of where to tread very carefully.

    I agree (none / 0) (#20)
    by Carolyn in Baltimore on Thu Jun 26, 2008 at 10:20:50 AM EST
    And I said I 'get' the decision. I would tread carefully with hearsay. But I wouldn't rule it out completely if the originator is not available on account of being dead.
    Is there a difference between evidence of an act and evidence which speaks to intent?

    This is surreal (none / 0) (#9)
    by dianem on Wed Jun 25, 2008 at 01:07:19 PM EST
    How can evidence that a person said they intended to kill somebody not be used to indicate that they intended to kill them? Can't the defense cross-examine the officer to which the woman spoke? This is incentive for murder as opposed to simply beating somebody up. If the victim had a habit of lying, or had purchased a gun, then that could be used to counter their testimony.

    Not surreal, just constitutional! (none / 0) (#10)
    by befuddledvoter on Wed Jun 25, 2008 at 01:23:36 PM EST
    In your scenario, the speaker's words would be introduced through the police officer.  Those words are then hearsay.  The defendant would not have the opportunity to cross-examaine the speaker at all.  You are suggesting that instead of the cross-examination, one could cross-examine the PO or introduce evidence of the speaker's veracity.  Not the same and not even close as a practical matter.  While many decry the FISA provisions as unconstitutional, here, some of the same people object to the preservation of another constitutional right, the 6th amendment confrontation clause.  To me, this is far more important, as it goes to the heart of a fair trial and the ability to present a defense.  With FISA, someone may or may not be violated.  If the court here ruled differently, forever defendants would be deprived of their right to confront the evidence against them, under these circumstances.  The right of confrontation adhers to those who are not guilty and guilty alike.  The constitution does not make those distinctions, as it is for the jury to determine who is and who is not guilty.  

    Every defendant is constitutionally guaranteed Due Process of Law, not just the defendants who elicit sympathy.  


    So... if they kill the person (none / 0) (#11)
    by dianem on Wed Jun 25, 2008 at 02:39:19 PM EST
    ...after repeatedly telling the person in private that they were going to kill them, then it isn't relevant? I thought that the words and actions of a murder victim were admissible in trial if there is no other way to get the testimony because they are dead or otherwise unable to testify (i.e. comatose). The words could be weighted accordingly, and wide latitude given to the defense attorney to counter the "testimony" of the victim. This ruling does not make sense to me. What if the only evidence of intent in the case is the declaration of the victim, as it appears to be in this case? What if statements of the victim to others counter claims made by the defendant?  It's his word against hers - and hers is not allowed because he killed her.  That can't be right. This is an invitation to murder witnesses in order to get out of a trial.

    It's not an issue of relevance (5.00 / 1) (#14)
    by txpublicdefender on Wed Jun 25, 2008 at 03:21:43 PM EST
    This decision is not an issue of whether what she told the police officer before was relevant.  It almost certainly was.  Neither was it an issue of whether it is a good policy or not.  The issue is whether the Constitution allows the testimony.  And it does not.  The right to cross-examine witnesses who offer testimony against you, as enumerated in the 6th Amendment's Confrontation Clause, is almost absolute.  The founders believed that the best way to test the truthfulness of testimony was to subject it to in-person, face-to-face cross-examination, and so they put that in the Constitution.  The judges are just interpreting that constitutional provision.

    All that said, the rule wouldn't preclude introducing statements she made to other people that weren't law enforcement, as that would probably not be considered "testimony."  Assuming there was some hearsay exception that applied to allow those statements, the Confrontation Clause would not prevent them from coming in.


    The thing is (none / 0) (#12)
    by Steve M on Wed Jun 25, 2008 at 03:07:03 PM EST
    we can cross-examine the police officer all day, but it won't get us any closer to the truth of whether the defendant did, in fact, threaten to kill the victim.  The reason it won't get us any closer is that the police officer has no idea if it's true or not; all he can tell us is what he was told, and what he was told might have been false.

    I certainly don't think women make false reports of that type very often, but under a reasonable doubt standard, we can't just assume that the report must have been true.  The defendant needs to be given some opportunity to rebut it.

    This is not an invitation to murder witnesses in order to get out of a trial, because if she hadn't been murdered, there wouldn't have been a trial.  As Scalia's opinion recognizes, there most certainly can be an exception to the rule when you kill a witness in order to keep them from testifying, but that clearly wasn't the case here.  Without a murder trial, she wouldn't have been testifying about anything at all.


    You can cross examine a witness all day... (none / 0) (#13)
    by dianem on Wed Jun 25, 2008 at 03:16:42 PM EST
    ...and if they choose to lie or if they truly believe something that isn't true, then you won't get any closer to the truth. Witnesses mess up all the time. You may not be able to assume that the report is true, but, given the fact that she said he threatened to kill her and a couple of weeks later he killed her, I think that might add weight to her report. You could argue that she had said that in order to set up her own murder of him later, and he really had been defending himself. If so, then there would be other evidence - her buying the gun, other false statements she had made, etc. It's not hard to discredit dead people - just show that they have a history of making things up or of violence. Obviously, if a person is not available for cross-examination then latitude must be given to discredit them in other ways.

    And this, in general, is encouraging murder. If Person A is a witness to a crime and they tell others that they are a witness, then Person B murders them so that they can't talk to the police, then it would be extremely difficult to provide a motive for the murder since you can't bring the fact that the Person A was claiming to have seen Person B committing a crime. Person B is being rewarded for murdering the witness.

    Without a murder, this woman would not have been testifying. She would not be dead. Perhaps he would have beat her up instead of killing her, had he not assumed that killing her would negate her value as a witness in any future trials. He would know that he was going to jail if he beat her up - but that he could claim self-defense if he killed her and almost assuredly win, since there was no evidence to the contrary.  


    Hmm (5.00 / 1) (#15)
    by Steve M on Wed Jun 25, 2008 at 03:32:50 PM EST
    I disagree that cross-examination doesn't get any closer to the truth if the witness "chooses to lie."  No one would bother cross-examining if that were the case.

    The thing is, you can argue that cross-examination isn't perfect or whatever, but it's still in the Constitution.  You have a right to cross-examine the witnesses against you.  And where those witnesses are unavailable, there's a very high burden before the government is allowed to use their testimony against you, because you're being deprived of your constitutional right.  Those rights are pretty fundamental.

    I don't understand your argument that the defendant would "almost assuredly win" without this testimony being admitted, when the post says the exact opposite - "the case against Giles seems strong, and he'll likely be convicted in a new trial even without the hearsay."  Regardless, the point is that you want to assume he killed her so that she wouldn't be able to testify against him in "any future trials," but that assumption doesn't seem to be backed up by any evidence.  If he killed her, he could have done it for any number of reasons other than that.


    Your example is incorrect (5.00 / 1) (#16)
    by txpublicdefender on Wed Jun 25, 2008 at 03:35:46 PM EST
    Your Person A/Person B example is not accurate.  Only testimonial out-of-court statements are inadmissible under the Confrontation Clause.  To be testimonial, they typically have to be statements made with an understanding that those statements would be used in a criminal prosecution.  So, for example, if I tell the police officer who is investigating a crime that I witnesses Person A shoot Person B, that is testimonial, and my statement would not be admissible unless I appeared in court and could be cross-examined.  But if I witness a shooting and run over to my friend Jane's apartment and excitedly tell her that I just saw Person A shoot Person B, and I died (whether at the hand of Person A or not) before the trial, then Jane could still come into court and testify as to what I told her.  My statement to her was not testimonial and it is subject to a hearsay exception (excited utterance).

    You are also ignoring the exception the Court did say applies.  The Court specifically said that if it is concluded by the trial judge that the defendant killed the potential witness to prevent them from being a witness, then the statement can still come in.

    Certainly people can still lie even when they are cross-examined.  There is nothing you can ever do to prevent all false testimony from being admitted.  That doesn't mean that you don't do something.  In this case, the founders very clearly decided that, on balance, it was better to exclude testimony unless the declarant could be cross-examined.  On balance, I think they were right.  If enough people think they were wrong, there is a way to change it--amend the Constitution.  But, you can't just change it by excising it by judicial fiat, no matter how much you believe your policy reasoning and judgment is better.


    I'm just trying to understand (none / 0) (#17)
    by dianem on Wed Jun 25, 2008 at 04:05:46 PM EST
    I feel that you are implying that I think I'm better than the framer's of the Constitution (sorry if I'm getting the wrong impression). I avoided any legal posts on this site until Jeralyn commented that people seemed to be ignoring those posts, and that there was no reason for non-lawyers to do so, since we provide a non-legal perspective. I appreciate you explaining to me the finer points of the law. I can understand why statements to a police officer may not be admissible, I guess. I'm not sure I agree with the logic, but I understand that rules are rules. My profession has some rules of it's own that would make little sense to an outsider. :-)

    Dianem, your input is appreciated (5.00 / 1) (#18)
    by befuddledvoter on Wed Jun 25, 2008 at 04:55:49 PM EST
    by this lawyer.  I love to hear how non legal folks view the same issues.  It is helpful. Most time, after a clear explanation, non-lawyers do understand.  Most of our constitutional guarantees really are based on the magna carta.  They have been based on literally hundreds of years of trials preceding our constitution. During those trials, truth-seeking was paramount.  The prohibition against hearsay in general is based on the premise that it is too easy to make stuff up; misremember; distort, by not recalling the proper context etc.  Confronting the declarant is really the only way to get at the most accurate evidence.  We all have a interest in that, not just the individual defendant.

    sorry, that's not what i meant (5.00 / 1) (#19)
    by txpublicdefender on Wed Jun 25, 2008 at 06:45:19 PM EST
    I can sometimes get a bit strident in my posts.  I did not mean to imply that you think that you are better than the Framers of the Constitution, just that your argument is with the Framers, and not the justices who made this ruling.  I think there are legitimate policy considerations that could justify a different result.  In other words, if we were starting from scratch, in creating our new constitution, your side has definite merit, and it would be an interesting debate.  But, we are not at that point.  The Framers wrote the 6th Amendment and its Confrontation Clause and the electorate ratified it.  As such, it is not up to the courts to consider whether the balance they struck was the right one, but rather merely to interpret precisely what they adopted.  

    So when it is said, "I don't agree with this decision," I think you are really disagreeing with the people who adopted the constitutional amendment, and not the decision that interprets it.  

    Opinions of non-lawyers are certainly welcome here.  I was giving you some of the more technical legal analysis to try to point out that this decision doesn't throw out every out-of-court statement someone might have made before they died.

    Sorry if I offended you.  I enjoy a robust dicussion here and I don't want to chase you away.