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Giles v. California (07-6053)

Oral argument: April 22, 2008

Appealed from: The Supreme Court of California (March. 5, 2007)

CONFRONTATION CLAUSE, FORFEITURE BY WRONGDOING, INTENT, CRAWFORD V. WASHINGTON

In 2002, Dwayne Giles shot his ex-girlfriend, Brenda Avie. Giles admitted to killing Avie, claiming he had done so in self-defense. Prosecutors sought to refute his defense by introducing statements Avie had made three weeks prior to her death, during an earlier domestic violence investigation. During that investigation, Avie told police about Giles attacking and threatening to kill her. The California state trial court ruled that Avie’s statements were admissible, based on a hearsay exception for statements about physical harm suffered by an unavailable declarant. While Giles’ appeal was pending, the U.S. Supreme Court held in Crawford v. Washington that “testimonial” statements were inadmissible under the Sixth Amendment’s Confrontation Clause if a defendant could not cross-examine the witness. The California Court of Appeal affirmed the trial court’s holding, reasoning that the “forfeiture by wrongdoing” doctrine survived Crawford. Under this equitable doctrine - a doctrine applied subject to a court’s judgment about fairness - a defendant forfeits his constitutional right to cross-examine a witness if his wrongdoing made the witness unavailable. The Supreme Court of California held, contrary to Giles’ arguments, that forfeiture by wrongdoing did not require showing that a defendant intended to make a witness unavailable. The U.S. Supreme Court’s decision in this case will determine the scope of a defendant’s right to cross-examine witnesses and how broadly courts may apply the forfeiture doctrine.

Question presented

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?

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Issue

Defendants have a right to confront witnesses by subjecting them to cross-examination, under the Sixth Amendment’s Confrontation Clause, but may waive this right by making a witness unavailable through wrongdoing. After the Supreme Court’s holding in Crawford that the Confrontation Clause applies to out-of-court “testimonial” statements, does the forfeiture by wrongdoing doctrine apply only if a defendant intended to make a witness unable to testify?

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Facts

On September, 29, 2002, Dwayne Giles, the defendant, got into an argument with his ex-girlfriend, Brenda Avie, which ended when he fatally shot her. People v. Giles, 40 Cal 4th 833 at 837-38. Witnesses heard the argument and the gunshots, and saw Giles with the gun after the shooting. Id. At trial, Giles did not deny that he had shot Avie, but argued that he acted in self-defense. Id. at 838. He testified that his relationship with Avie had been tumultuous, that she was jealous of his relationship with his new girlfriend, and that in the past she had shot a man and threatened others with a knife. Id. He also testified that before he shot Avie, she had charged him, and he had been afraid that she had a weapon in her hand. Id. The police found no such weapon at the crime scene. Id.

To rebut Giles’ characterization of his relationship with Avie, the prosecution sought to introduce the testimony of Stephen Kotsinadelis, a police officer who, a few weeks prior to the murder, had been called to intervene in a domestic dispute between Giles and Avie. Id. at 839. Kotsinadelis had interviewed Avie on September 5, 2002, and she had told him that Giles had assaulted her and threatened her life. Id. Although Kotsinadelis’s testimony as to what Avie had told him was hearsay, evidence which is normally deemed inadmissible because its ultimate source is unverifiable, the trial court held it was admissible under California evidence rules because it was a reliable out-of-court description of a physical injury. Id.; see CA Evidence Code § 1370.

On appeal, Giles argued that the trial court’s ruling violated his Sixth Amendment right to “be confronted with the witnesses against him.” Id. at 840. Both the California Court of Appeal for the Second District and the Supreme Court of California disagreed, relying on the forfeiture by wrongdoing exception to the Confrontation Clause. Id. at 837. Giles argued that the exception applies only when the witness was made unavailable by the defendant with the intent of preventing her testimony. Id.  However, the courts disagreed, finding that any wrongdoing by the defendant which prevents a witness from testifying waives the defendant’s right to confront the witness, regardless of the defendant’s intent. Id. The Supreme Court granted certiorari to determine if the intent of the defendant is relevant to the determination of forfeiture by wrongdoing. Supreme Court Question Presented.

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Discussion

The Sixth Amendment’s Confrontation Clause serves two functions in criminal trials: it provides for fairness by ensuring that defendants have the right to confront their witnesses and also furthers truth-seeking, by allowing defendants to test the memory and credibility of witnesses before a jury. See CRS Annotated Constitution, Sixth Amendment, Rights of Accused in Criminal Prosecutions, Confrontation. Both the petitioner, Giles, and the respondent, the state of California, argue that a Supreme Court ruling adverse to them would undermine those values and goals.

The Dangers of a Broad Interpretation of Equitable Forfeiture

Giles contends that a broad equitable forfeiture doctrine is incompatible with Crawford, and would eviscerate that decision’s protection of Confrontation Clause rights. An equitable doctrine is one that gives the court flexibility in deciding whether to apply a rule by allowing the court to take considerations of fairness and justice into account. In Crawford, the Court held that even testimonial statements – that is, statements from formal processes such as police interviews – from unavailable witnesses are inadmissible if a defendant has no opportunity to cross-examine. People v. Giles, 40 Cal 4th 833, 844.

Giles and his supporters argue that California’s rule would render Crawford meaningless by permitting courts to admit hearsay statements from unavailable witnesses, as long as the prosecution could prove merely that the defendant caused the witness to be unavailable. Brief for Petitioner at 29. Eliminating the intent requirement reduces forfeiture by wrongdoing from an equitable doctrine to a mechanical rule, and would have the effect of making testimonial statements automatically admissible in homicide cases. Id. at 42-43. Courts would be able strip defendants of their constitutional rights on equitable grounds, despite the fact that constitutional rights are not discretionary.  Id. at 44. The integrity of criminal trials would suffer if mere causation were sufficient to trigger equitable forfeiture, due to the potential for abuse. Prosecutors could use forfeiture by wrongdoing as a loophole to introduce evidence that would normally be excluded under Crawford. Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in support of Petitioner at 25. Since courts have accepted psychological trauma and injury as bases for unavailability, prosecutors would be able extend the doctrine beyond homicide cases. Id. at 27, Brief for Petitioner at 43-44. Giles argues that this loophole in Crawford’s protections would be especially attractive if witnesses are reluctant or poor testifiers. Prosecutors could “manufacture” grounds for unavailability. Brief for Petitioner at 44. The scope of constitutional rights would end up depending on the creativity of prosecutors. Additionally, prosecutors would actually have a disincentiveto find witnesses, because the witness’ testimonial statements are admissible without cross-examination. Id.  Finally, the truth-seeking goal would suffer because juries would be deprived of the opportunity to examine the recollection and credibility of witnesses. See Brief of NACDL at 30; Brief for Petitioner at 46-47.

Specific Intent: Substituting a Bright-Line Rule for Equitable Considerations?

California counters by arguing that criminal trials would be far more vulnerable to distortion under a decision recognizing a specific intent requirement. Such a decision would ignore equitable principles and allow defendants to claim confrontation rights that they themselves made unattainable. Meanwhile, prosecutors and victims would be disadvantaged by having to make their case without vital evidence. Brief for Respondent at 9, 12-13. This combined effect is most pronounced in homicide cases, where the victim could never be put on the stand and cross-examined. Id. at 9,12-13. Prosecutors would potentially be deprived of the only evidence they might have - statements from victims themselves - despite the fact that the testimonial statements might have been given in a reliable process, such as a deposition. The absence of otherwise reliable evidence would in turn hinder the truth-seeking function of trials, by creating a bright-line rule that denies the jury relevant, potentially reliable evidence.

Aside from subverting the truth-seeking purpose of the Confrontation Clause, the state points to the sheer inequity of a bright-line rule. According to California, a decision that allows defendants to escape conviction because of the wrongdoing they are on trial for is illogical. Brief for Respondent at 15. It violates the basic equitable principal that dictates that “no man shall profit from his wrong”. The motive to eliminate witnesses is exacerbated by the fact that the more essential a witness would be to the prosecution’s case, the stronger the motive that a defendant would have to make the witness unavailable. Brief for Respondent at 36. A specific intent requirement also creates a heavy burden for prosecutors, who must prove that a defendant committed a crime with the specific intent of eliminating a witness. Brief for Respondent at 11, 39. The fact that all elements in a criminal trial must be proven “beyond a reasonable doubt” could create insurmountable burdens for prosecutors.

The effects of a rule requiring prosecutors to prove intent to eliminate witnesses could especially impact drug and organized crime prosecutions, in which the problem of witness intimidation and even murder is pervasive. See Fox Butterfield, Guns and Jeers Used by Gangs to Buy Silence, N.Y. Times, January 16, 2005; David Kocieniewski, With Witnesses at Risk, Murder Suspects Go Free, N.Y. Times March 1 2007. Firstly, proving specific intent would be a heavy burden in cases of intimidation or in cases where a gang member other than the defendant acted to make the witness unavailable. Secondly, defendants would have an incentive to murder or intimidate witnesses, since this would effectively eliminate the testimony in many cases. More broadly, the inability of prosecutors to win such cases could lead to reluctance to prosecute single-witness cases, as has been the case in some districts. David Kocieniewski, With Witnesses at Risk, Murder Suspects Go Free, N.Y. Times March 1 2007.

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Analysis

The Supreme Court’s decision in this case will define the limits of the forfeiture by wrongdoing exception to the right of confrontation expressed in the Sixth Amendment, and most recently interpreted in Crawford v. Washington, 541 U.S. 36 (2004). Because this case deals with what is essentially a judge-made exception to a constitutional right, the arguments surrounding it involve the traditional scope of the doctrine, the evolution of the confrontation right since the most recent Supreme Court case addressing the issue, and the policy reasons supporting the rule.

Traditional Forfeiture Doctrine

Giles believes that prior cases dealing with forfeiture by wrongdoing are best read to include an intent requirement, while the State of California believes such a requirement is not necessary. Giles notes that Reynolds v. United States, 98 U.S. 145 (1878), the case which adopted the forfeiture rule from English common law, contains language specifically waiving the confrontation right for defendants who purposefully make witnesses unavailable to the trial court. Brief for Petitioner at 20-21. California, on the other hand, looks to the broad language of Reynolds, and its statement that “[t]he rule has its foundation in the maxim that no one should be permitted to take advantage of his own wrong” to argue that the rule applies to Giles regardless of whether or not he had an intent to keep Avie from testifying. Brief for Respondent at 10, quoting 98 U.S. at 159. Under this argument, killing Avie was a wrong, and if Avie’s prior statements are not admitted into evidence, Giles would be gaining an evidentiary benefit from his own wrong. Id. at 9.

Giles argues that California’s interpretation is foreclosed by other traditional doctrines surrounding the introduction of hearsay statements into evidence. Giles looks to the dying declaration exception to the hearsay rule, which states that a statement of a murder victim is admissible against the defendant if a number of conditions are met, including a requirement that the victim knew death was impending Brief for Petitioner at 15-17. Giles argues that this rule would not be so narrowly tailored if it could be swallowed by the doctrine of forfeiture by wrongdoing. Id. Giles argues that if there were no intent requirement to the forfeiture doctrine, this rule would be entirely superfluous, as all statements by dying victims would be per se admissible. Id. at 17. California argues that the dying declaration rule is parallel to the forfeiture rule, and that it shows the importance of admitting statements of victims to the truth-seeking function of a trial. Brief for Respondent at 20-21.

Forfeiture Post Crawford v. Washington

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the confrontation right applied to a wide range of “testimonial” statements. Because this decision seemed to exclude a wide range of testimony which had been offered against criminal defendants, courts across the country began expanding the scope of the forfeiture by wrongdoing doctrine. People v. Giles, 40 Cal 4th 833 at 844-46 (listing recent cases expanding forfeiture doctrine). Giles argues that this recent trend contravenes the very purpose of the holding in Crawford, which was designed to ensure that criminal defendants have an opportunity to confront and cross-examine the witnesses against them, except in very limited circumstances. Brief for Petitioner at 7-8. Giles argues that doing away with the intent requirement would create a per se rule allowing prior testimonial statements by murder victims, and that this would seriously undermine the confrontation right protected in Crawford. Id. at 7-8. California responds to this argument by pointing out that murder defendants will retain their confrontation rights with respect to all other witnesses to the trial, and that this result is demanded by the operation of the rule of law. Brief for Respondent at 37-38.

In Crawford, the Supreme Court briefly addressed the forfeiture by wrongdoing doctrine, without specifying if intent was required. 541 U.S. at 62. The Court’s decision stated that forfeiture by wrongdoing is an equitable doctrine, while other purported exceptions to the Confrontation Clause are based on a finding of the reliability of the admitted testimony. Id. California argues that the equitable grounds for finding forfeiture in cases of witness tampering also apply to cases such as this one where the defendant has killed the witness for reasons other than making the witness unavailable to testify. Brief for Respondent at 12-13. These equitable bases include: fairness, necessity, and protecting the integrity of the proceedings. Id. Giles responds to this argument by reiterating that California’s conception of the forfeiture doctrine is inconsistent with the basic rule of Crawford; that the confrontation right is broad and should be denied only in very limited circumstances. Brief for Petitioner at 41. He bolsters this response with a quote from the text of Crawford: “The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.” Id. at 42, quoting 541 U.S. at 67. The Supreme Court’s decision in this case will give it a chance to determine if this aspect of Crawford remains good law.

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Conclusion

This case will resolve an important question about the scope of the forfeiture by wrongdoing exception to the Sixth Amendment right of confrontation. The Supreme Court’s decision will determine if the state must show that a defendant who makes a witness unavailable did so with the intent of preventing the witness from testifying. This case will force the court to carefully balance the rights of criminal defendants to confront the witnesses against them with the truth seeking function of the trial, and the importance of dissuading fraud on the tribunal by insuring that there are consequences for those who prevent witnesses from testifying against them.

Authors

Prepared by: Joe Hashmall and Deepa Sarkar

Edited by: Tim Birnbaum

Additional Sources