In Giles v. California, the Supreme Court of the United States Held That the State Must Prove that the Defendant Intended to Procure the Unavailability of a Witness In Order to Apply the Forfeiture by Wrongdoing Exception To the Sixth Amendment’s Right to Confrontation Clause
In 2004, the Supreme
Court of the United States reversed and remanded the Washington
Supreme Court in Crawford v. Washington, holding that “where
testimonial evidence is at issue… the Sixth Amendment demands what
the common law required: unavailability and a prior opportunity for
cross-examination.”
The Court further stated that “testimonial” included, at a
minimum: former trials, preliminary hearings, grand jury testimonies
and police interrogations.
In Giles v. California, the Supreme Court acknowledged two
kinds of unconfronted testimonial statements that were admissible at
common law: (1) declarations made by a speaker who was aware of
their own imminent death and (2) statements given by a speaker who
was subsequently “detained” by the “means or procurement” of
the defendant.
On September 29, 2002,
Dwayne Giles was speaking to his ex-girlfriend, Brenda Avie, outside
his grandmother’s garage. No one else was outside to witness the
exchange, but Giles’ niece could hear conversational tones from
inside the house. She then heard Avie yell “Granny” several
times and then a series of gunshots. Both Giles’ niece and his
grandmother ran outside to find a weaponless Avie on the ground,
shot six times. Giles was standing near her with a gun in his hand.
Giles fled the scene.
Giles was apprehended
about two weeks later and he was charged with first degree murder.
He testified at his trial that he acted in self-defense. Over
Giles’ objection, the trial court admitted prior statements by
Avie that were given to law enforcement approximately three weeks
prior to her murder regarding a domestic incident with Giles in
which she was the victim. The trial court based its decision upon
the California Evidence Code,
which allows the admission of out-of-court statements that
“describes the infliction or threat of physical injury on a
declarant when the declarant is unavailable to testify at trial and
the prior statements are deemed trustworthy.”
The trial court did not consider whether Giles intended to murder
Avie to prevent her testimony against him because it was irrelevant
to the trial court’s interpretation of the forfeiture doctrine.
Giles was convicted and he appealed. During his appeal, the United
States Supreme Court decided Crawford v. Washington. The
California Court of Appeals affirmed the trial court’s ruling and
construed Crawford’s forfeiture by wrongdoing exception to
preclude defendant’s right to confrontation based on his own
intentional criminal act that made Avie unavailable to testify at
trial.
Thus Avie’s hearsay statements were admissible. The California
Supreme Court similarly affirmed.
On June 25, 2008, The
Supreme Court of the United States addressed whether California’s
interpretation of the forfeiture by wrongdoing exception to the
Sixth Amendment is consistent with the founding-era doctrine and
their holding in Crawford.
The origins of the
forfeiture by wrongdoing language were traced back to the 1666
decision in Lord Morley’s Case. An unavailable witness had
been “detained by the means or procurement of the prisoner,”
therefore the judges allowed the reading of a former testimony given
by that witness at a coroner’s inquest.
“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 1997, the Supreme Court approved codification of a forfeiture
doctrine in the Federal Rule of Evidence that only applies when
defendant “engaged or acquiesced in wrongdoing that was intended
to, and did, procure the unavailability of the… witness.”
The requirement of intent is popularly interpreted to mean that the
exception only applies when the defendant has the specific purpose
in mind to keep a witness from testifying against him. “The
dissent’s claim that knowledge is sufficient to show intent is
emphatically not the modern view.
The Court did mention
that in the context of domestic violence, defendants often employ
violent measures to dissuade a victim from disclosing abuse or from
cooperating with criminal prosecution. When abuse escalates to
murder, the “evidence may support a finding that the crime
expressed the intent to isolate the victim and to stop her from
reporting abuse to the authorities or cooperating with a criminal
prosecution – rendering her prior statements admissible under the
forfeiture doctrine.”
Justice Souter’s concurring opinion (joined in part by Justice
Ginsburg) states that in a continuing relationship of domestic
abuse, “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.”
The Supreme Court invited, on remand, consideration of the history
of abuse and other evidence of Giles’ intent when he murdered
Avie.
The Supreme Court
rejected the State’s and dissent’s arguments for fairness and
stated that the broader exception was not only “‘plainly not an
exception established at the time of the founding,’
it is not established American jurisprudence since the
founding.”
The Supreme Court held that the intent of the defendant must be
considered in deciding whether to apply the forfeiture by wrongdoing
exception to the Sixth Amendment.
The Supreme Court vacated the California Supreme Court’s
judgment and remanded the case.
