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Crawford and forfeiture

Yesterday, I talked about Crawford v. Washington, the US Supreme Court decision back in 2004 which held that if a statement is "testimonial," it can't be admitted, even if it falls within one of exceptions to the hearsay rule.  I also mentioned one of the exceptions to Crawford itself:  even if a statement is testimonial, it can be admitted if the person who made it takes the stand.  (In that case, of course, it would still have to qualify as an exception to the hearsay rule.) 

The Supreme Court granted certiorari a week or so back in Giles v. California to consider another exception.  That exception is aptly summarized by this line from the opinion of the California Supreme Court which it will be reviewing:

As explained below, we conclude that defendant forfeited his right to confront his ex-girlfriend when he killed her.

The facts in Giles are fairly straightforward:  the defendant was on trial for murdering his girlfriend, but claimed self-defense.  That was rendered problematic by the fact that the girl had been shot six times, at least one of which occurred while she was lying on the ground.  His claim to being afraid of her became even more difficult to maintain when the trial judge permitted a couple police officers to testify that they'd responded to a domestic violence call from Giles' girlfriend just two weeks before the killing, in which she'd told them that Giles had just punched her, choked her, and held a knife to her throat and threatened to kill her.

The testimony came in under a weird California hearsay exception.  (Something about a statement regarding the suffering of personal injury, if "otherwise trustworthy.")  Back in Davis v. Washington, a post-Crawford case from 2006, Justice Scalia had written that a defendant might forfeit his right to confront his accusers if he had been responsible for the accuser not showing up at trial.  Giles argued that this required the state to prove that the motive for killing his girlfriend was to keep her from testifying, but the California court didn't buy it:  they held that as long as the defendant's actions prevented the witness from testifying, his motives for those actions were irrelevant.

Giles is an extreme factual situation, but it's somewhat surprising that the forfeiture issue hasn't come up in any Ohio cases so far; it's not uncommon in domestic violence situations.  And it raises some intriguing questions on that score.  Say, for example, the victim makes a detailed statement to the police about the abuse, but refuses to testify when the case comes to trial.  It could be that the victim is afraid to testify because the perpetrator threatened her, or it could be that the victim simply doesn't want the defendant to go to jail.  In the first situation, forfeiture would obviously apply, and the statement would be allowed.  In the second it wouldn't.  But how do you tell which is which?  What's the state's burden there? 

And let's throw another log on the fire:  what if the victim is afraid to testify, but that's due to just a general fear of the defendant, rather than anything he's done or said?  Logically, it seems that it would be the defendant's actions, not the witness's fears, which would determine that question; all the talk about forfeiture has revolved around some definitive act by the defendant, and the very nature of the term ("forfeit") implies that.  Again, who has the burden of proof, and what is that burden?

Those are some questions that are bound to come up in the future.  And if you're interested in the subject, you can check out the case on ScotusWiki; you can find linkds to all the opinions and briefs there.

Meanwhile, "throw another log on the fire"?  When did I start talking like Andy Rooney?

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