Giles v. California

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Authorship: Ruthie Zemel

Contents 1 Briefs and Documents 2 Pre-Argument Articles 2.1 Argument Preview 2.2 Background 2.3 Petition for Certiorari 2.4 Merits Briefing 3 Oral Argument Recap 4 Opinion Analysis 5 Links and further information 5.1 SCOTUSblog

[edit] Briefs and Documents

Docket: 07-6053

Issue: Whether criminal defendants forfeit their Sixth Amendment Confrontation Clause Claims upon a showing the defendant caused the unavailability of the witness or upon a showing the defendant’s actions were undertaken specifically to prevent the witness from testifying.

Argument Transcript

• Opinion below (Supreme Court of California)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of Professor Richard Friedman (in support of the petitioner)

Merit briefs (via ABA)

• Brief for Petitioner Dwayne Giles
• Brief for Respondent State of California
• Reply Brief for Petitioner Dwayne Giles

Amicus briefs

• Brief for National Association of Criminal Defense Lawyers in Support of Petitioner
• Brief for the National Crime Victim Law Institute in Support of Respondent
• Brief for the States of Illinois, Alabama, Arizona, Colorado, Delaware, Florida, Hawaii, Idaho, Indiana, Iowa, Kansas, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming in Support of Respondent
• Brief for the National Association to Prevent Sexual Abuse of Children's National Child Protection Training Center in Support of Respondent
• Brief for the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), the California Partnership to End Domestic Violence, and Legal Momentum, et al., in Support of Respondent
• Brief for the Battered Women's Justice Project and Other Domestic Violence Organizations in Support of Respondent
• Brief for the National Association of Counsel for Children and the American Professional Society on the Abuse of Children in Support of Respondent
• Brief for Richard D. Friedman in Support of Respondent

[edit] Pre-Argument Articles

[edit] Argument Preview

In No. 07-6053, Giles v. California, the Supreme Court will determine whether a criminal defendant forfeits his rights under the Confrontation Clause to cross-examine a witness by causing the witness’s death. Petitioner claims that the doctrine of forfeiture by wrongdoing requires an additional finding that his actions were specifically intended to prevent the witness from testifying; the State maintains that no such finding is necessary.

[edit] Background

In 2004, in Crawford v. Washington, the Supreme Court held that testimonial hearsay was only admissible against a criminal defendant under the Confrontation Clause if that defendant had a prior opportunity to cross-examine the declarant. The decision abandoned a reliability-based inquiry established decades earlier in Ohio v. Roberts in favor of a bright-line rule recognizing an exception for forfeiture by wrongdoing. While the forfeiture doctrine is generally understood to require causation, Crawford did not specify whether it requires an additional finding of specific intent by the defendant to render the witness unavailable for trial. The Court is expected to answer that question in Giles.

Petitioner Dwayne Giles was charged in state court in California with the murder of his ex-girlfriend, Brenda Avie. On the night of her death, Avie came over to Giles’s grandmother’s house after finding out that he was there with his new girlfriend, Tameta Munks. Giles claimed that he asked Avie to leave, and remained alone in the garage. When Avie reappeared in the driveway, he testified that she issued threats and began to run at him. Giles claimed that he grabbed his uncle’s loaded nine-millimeter handgun, closed his eyes, and fired several shots.

His friend, Marie Smith, testified that she was inside the house when she heard a series of gunshots. She ran outside, along with Giles’s grandmother, to find Giles holding the handgun and standing eleven feet from Avie. Avie was not carrying a weapon when she was killed.

To support his claim of self defense, Giles testified that Avie was unstable and had a history of violent behavior. Over his objection, the trial court also admitted evidence of statements by Avie to a police officer describing a prior assault on her by Giles. The jury found Giles guilty of deliberate premeditated first-degree murder.

Giles appealed his conviction to the California Court of Appeals, which requested supplemental briefing on the issue of whether the admission of Avie’s statements on the prior assault had violated Giles’s rights under the Confrontation Clause. The Court of Appeals ultimately resolved the question in the State’s favor. Giles petitioned for review with the California Supreme Court, which granted the petition and unamimously agreed that Giles had forfeited his confrontation right by killing Avie. The California Supreme Court explained that the doctrine of forfeiture by wrongdoing applied when the defendant intentionally caused the witness’s unavailability by killing her, even absent an additional finding of specific intent.

[edit] Petition for Certiorari

Giles filed a petition for certiorari, which was granted on January 11, 2008.

The petition advances three arguments. First, Giles argues that the California Supreme Court’s broad construction of the forfeiture doctrine represents one side of an irreconciliable split pitting five state supreme courts and the Sixth Circuit against five other state supreme courts that construe the doctrine more narrowly. According to Giles, this split rests on fundamentally inconsistent interpretations of the Supreme Court’s 1879 decision in Reynolds v. United States and modern language construing the forfeiture doctrine.

Second, Giles contends that the California Supreme Court’s decision conflicts with the forfeiture doctrine as understood in the common law and at the time of the Sixth Amendment’s adoption. And under the methodology laid out by the Supreme Court in Crawford, Giles argues that the defendant’s right to confront witnesses maintains the same scope as it did at the time of the Founding Fathers.

Finally, Giles asserts that California’s broad construction of the forfeiture doctrine “emasculates” the defendant’s right to confrontation in homicide trials and risks doing so in prosecutions of traumatic crimes, such as domestic violence or child abuse, in which the commission of the crime at issue can also be found to have rendered the witness unavailable for trial. Giles cautions that such a rule perversely provides prosecutors with an incentive to introduce hearsay at trial instead of producing the declarant, and it undoes Crawford’s reaffirmation of a criminal defendant’s “stringent” right to confront the witnesses against him. Confrontation, Giles argues, is not a “benefit” but a “procedural right . . . necessary to ensure the fairness of the criminal process” that is only forfeited when the defendant specifically intends to silence a witness.

In its brief in opposition to certiorari, the State of California responds that the decision of the California Supreme Court is fully consistent with Reynolds, Crawford, and Davis, and rests on the equitable consideration that “no one shall be permitted to take advantage of his own wrong.” The State further asserts that the recent characterization of the doctrine as one of “forfeiture” rather than “waiver” belies a specific intent requirement, and that any such requirement in modern case law is limited to evidentiary hearsay rules, not constitutional law.

Finally, the State disputes the presence of a split of authority on the necessity of finding specific intent to support forfeiture when the defendant’s murder of the witness was the cause of the witness’s unavailability. The State argues that four of the cases mentioned by Giles do not reach the particular question of whether specific intent is necessary to support forfeiture and that another three do not involve the murder of the declarant. To the extent that a split is found, the State contends that it is a recent divergence and should be allowed to percolate in the lower courts.

[edit] Merits Briefing

In its brief on the merits, Giles asserts that a long line of authority beginning with the common law and stretching through the Supreme Court’s 2004 decision in Crawford supports his claim that the forfeiture doctrine requires a finding of specific intent. According to Giles, the common law forfeiture doctrine applied only when the defendant had “procured” or “contrived” to prevent the witness from testifying—language understood in contemporaneous dictionaries to connote “a deliberate intent to carry out a specific design.” Giles suggests that the requirement of specific intent was further confirmed in contemporaneous treatises, in Reynolds, and in the cases that followed that decision. The only other common-law exception to the rule barring testimony by deceased witnesses absent a prior opportunity for cross-examination was a narrow dying declarations exception. Giles asserts that this exception was closely circumscribed and would have been superfluous if the simple act of murder sufficed to constitute a forfeiture of the defendant’s confrontation rights.

Next, Giles asserts that the modern doctrine of forfeiture has continued to require specific intent to support a finding of forfeiture. Up until the confusion created by Crawford, Giles asserts that the specific intent requirement was a mainstay of the forfeiture doctrine, even as some circuits relaxed the requirement that prior statements must have provided an opportunity for cross-examination. Giles also draws support from Federal Rule of Evidence 804(b)(6), which confirms the necessity of specific intent both in its text and in the supporting Advisory Committee note.

In the face of this longstanding line of authority, Giles claims that nothing in the characterization of the forfeiture doctrine in Crawford or Davis provides a reason to back away from the specific intent requirement. He asserts that the confrontation right reaffirmed in Crawford represents a critical procedural guarantee that can only be forfeited by conduct intended to subvert the trial process and “destroy the integrity of the criminal-trial system.” Even under equitable principles, Giles insists, forfeiture cannot serve as “an additional penalty for alleged wrongdoing.”

Finally, Giles reiterates that the logic of California’s broad forfeiture doctrine would not only create a categorical exclusion to confrontation rights for all homicide defendants, but also would apply whenever a defendant was accused of any traumatic crime. This would undermine prosecutorial incentives to introduce witness testimony and obliterate “an essential and fundamental requirement” of a fair trial in a large class of criminal cases.

In response, the State of California makes four arguments. First, it stresses that “equitable considerations of fairness, necessity, and the integrity of the truth-finding function of the criminal trial” prohibit a defendant who murders a witness from complaining about her unavailability for cross-examination at trial. The loss of the witness’s testimony “follows from the inevitable and necessary consequence” of her killing, the State argues, and forfeiture is necessary to prevent the defendant from presenting a one-sided picture at trial and impermissibly profiting from his own wrongdoing.

Second, the State argues that its conception of the forfeiture doctrine is supported by the underlying rationale of the common-law forfeiture and dying declaration doctrines. It acknowledges that the traditional dying declaration doctrine would cover statements such as the ones at issue in this case, but attributes those restrictions to “mere hearsay concerns” rather than constitutional mandates. The State further contends that Giles’s discussion of Federal Rule of Evidence 804(b)(6) similarly conflates evidentiary rules with constitutional rights, and does not dictate the scope of the latter.

Third, although acknowledging that its conception of the forfeiture doctrine will permit hearsay evidence without allowing for cross-examination by the defendant, the State notes that a series of protections remain in place to protect the defendant’s right to a fair trial. Not only is the defendant able to introduce defense evidence contesting the contents of the admitted statements, but he also retains statutory hearsay and Due Process objections to the evidence. Moreover, a forfeiture ruling must be supported by independent corroborative evidence. On the other hand, failure to admit the deceased victim’s statements, the State argues, would result in a one-sided presentation of evidence by the defense.

Finally, the State disputes that the logic of its decision would apply with equal force to cases of domestic violence and other traumatic crimes. Rather, it notes that forfeiture in this case was based on the gravity of the crime of murder, the tight causal link between the crime and the witness’s unavailability, and the obviousness of the resulting unavailability of the victim to testify subsequent to her killing, which may differ in other crimes.

[edit] Oral Argument Recap

The following analysis of oral argument is by Lyle Denniston.

As long ago as 1879, the Supreme Court made clear that an individual cannot benefit, in a criminal trial, from his own misconduct. That is an adage, the Court said then in Reynolds v. U.S., that dates back at least to 1666 in English history. So, the Court concluded in Reynolds, if an individual accused of crime voluntarily keeps away from the trial a witness against him, he has no constitutional objection if the evidence the witness would have given on the stand is brought in by some other means.

That has a ring of common sense and conventional morality about it even today, as Chief Justice John G. Roberts, Jr., intimated when he remarked on Tuesday: “We usually, under our system, don’t try to give benefits to murderers.”

But, contrary to widespread expectations, it could turn out that the old adage does not apply to the murder case of Giles v. California (07-6053), a case the Justices heard on Tuesday. The strong impression from the argument was that the Court might well refuse to apply the principle in all cases, whenever the accused caused a witness not to appear.

The “benefit” that Dwayne Giles’ attorney was seeking in the case is the exclusion of evidence against him by his former girlfriend, whom he murdered — the crime for which he was on trial. At that trial, the prosecution put on the testimony of a Los Angeles police officer who had interviewed Brenda Avie, the former girlfriend, three weeks before she was shot dead. Ms Avie told the officer that Giles had assaulted her and threatened to kill her. The testimony was offered to show a Giles’ propensity to be violent. The California Supreme Court, contributing to a lower courts conflict on the issue, concluded that there was no need to prove that Giles specifically intended to silence Avie in order to find that he had surrendered his right to face his accuser’s evidence.

The use of her statement, in her absence, violated his right to challenge her evidence, Giles’ lawyers contended, relying upon the Supreme Court’s 2004 decision in Crawford v. Washington. The absence of a chance to cross-examine, the claim was, undercut his claim that he shot her in self-defense. Her statement, Los Angeles attorney Marilyn G. Burkhardt told the Court Tuesday, “obviously was highly prejudicial because it indicated to the jury that he was planning to kill her.”

The hearing ranged widely over what common law principles were regarding the old adage, and whether the Confrontation Clause, when put in the Constitution in 1791, accepted that as an exception to the right to face one’s accusers.

Justice Anthony M. Kennedy, in a comment early in the argument, said that “we are presented with an instance that I’ve never seen, which is that the murder itself makes the declarant unavailable for purposes of the equitable exception. And it is true that that goes much further than the common law did.” Burkhardt readily agreed, saying that the state “has not cited one single case at common law or after that supports its view”that merely causing an absence of a witness, without intent to silence that witness, forfeited the right to confrontation.

Justice Stephen G. Breyer, at that point and throughout the argument, would raise questions about which among a wide range of common law rules on unavailable witnesses were, or were not, valid ways in the modern era to trigger the Confrontation Clause.

But Burkhardt deftly countered him by suggesting that what was at issue was the “basic policy” of the Clause, “which is that we are to have live testimony in court….Any exception to the Confrontation Clause must be very, very narrow.”

Justice Antonin Scalia was the most fervent champion of Giles’ cause, suggesting that the Court in Crawford had interpreted “the meaning of the Confrontation Clause” as it was understood “when the people adopted it.”

The Chief Justice and Justice Ruth Bader Ginsburg speculated over the reasons why Giles might have shot Avie, but Burkhardt suggested that such thoughts were “highly speculative.” Those questions seemed to reflect a concern, not about ruling for Giles, but about ways to narrow such a ruling so that it would not allow the Confrontation Clause limitation to nullify many convictions where the motive for killing a would-be witness was uncertain.

Much of the argument for the state of California, by deputy state solicitor Donald E. De Nicola, was taken up with exchanges over what the common law required about admission at trials of dying declarations that accused the defendant of the crime. Burkhardt had gone to considerable lengths to suggest that the dying declaration basis for admitting evidence imposed significant limits on such evidence.

As De Nicola argued for a flat rule that no defendant could profit under the Confrontation Clause from the wrong of killing a witness, without proof that that was done intentionally to keep the witness off the stand, Chief Justice Roberts questioned whether that rule “would drive a pretty big hole through Crawford [v. Washington].”

Justice Kennedy suggested that a ruling for Giles perhaps would not affect many cases, because the Crawford decision only operated to exclude witness statements that were technically “testimonial” in nature. And, a bit later, Kennedy told De Nicola: “Well, I think it’s an astonishingly broad exception you’re asking for.”

In the end, Justice Scalia suggested that cases like Giles’ “may be very rare….It would be very unusual that someone would kill a victim in order to preent her testifying at a murder trial which is not yet in prospect because you haven’t murdered her…It would be rare on [Burkhardt’s] theory; it wouldn’t be rare on yours. It happens all the time on yours, I would think.”

[edit] Opinion Analysis

The following analysis was written by Lyle Denniston on SCOTUSblog and also is available here.

The Supreme Court ruling reinforcing the right to confront witnesses in a criminal trial turns out, at least for some cases, to be fairly easy for prosecutors to get around. Both the majority opinion, and a separate opinion of two Justices whose votes were necessary to make the majority, provide a formula at least for narrowing the impact of the ruling in Giles v. California (07-6053).

The Giles case involved this somewhat unusual scenario: Dwayne Giles, a Californian, killed his former girlfriend supposedly to keep her from cheating on him, but he asked the Court to bar the use from his trial of an earlier statement she had made to police against him, because — now dead — she could not be summoned for cross-examination. That, he argued, was a denial of his Sixth Amendment right to confront a hostile witness, a right that the Court had strongly reaffirmed in Crawford v. Washington in 2004.

The state of California countered that, because his former girlfriend’s absence from the witness stand was a result of his murder of her, he forfeited his right to confront her. It made no difference why he had killed her, according to the state.

Amid a fervent verbal duel over English and American legal history, between Justice Antonin Scalia and Justice Stephen G. Breyer, the Court ruled Wednesday in Giles’ favor — at least temporarily. Scalia, writing for a 6-3 majority, said that the state had not shown that Giles had killed his wife explicitly to keep her from testifying, so his right of confrontation may have been violated by admitting, his former girlfriend’s earlier statement to the police. California had a law that allowed use of such statements any time the accused had caused the witness to be absent, whatever the reason (including murder).

It is an ancient rule of law, Justice Scalia wrote for the majority, that a prior statement from an absent witness may only be used if the accused intentionally had taken steps to keep that witness off the stand. ”We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter,” he commented in the concluding paragraph.

But, perhaps significantly, Giles has not yet won.

Justice Scalia, in comments that appeared to be made at least partly to hold two of the six votes (and thus majority prevailing over three dissents), said that state courts were free now to probe what Giles’ intent was in killing his former girlfriend. If there is proof of an “abusive relationship” that ends in murder, Scalia said, that might support a finding that the crime represented an intent “to isolate the victim and to stop her” from reporting the abuse or cooperating with a criminal investigation.

He added: “Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” That is the kind of potential evidence of intent that state courts may now examine, the opinion said.

Justice David H. Souter, in a separate opinion joined by Justice Ruth Bader Ginsburg, gave special emphasis to the situation that might be present if a “domestic abuser in the classic abusive relationship” sought to keep the victim from seeking help from law enforcement officers. “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,” Souter wrote.

Since their votes were essential parts of the majority, the added emphasis on a situation of domestic abuse (an emphasis that the three dissenters embraced, incidentally) could limit the impact on prosecutions that the Court’s decision might otherwise have.

[edit] Links and further information

[edit] SCOTUSblog

• January 11, 2008

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