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Giles and forfeiture under Crawford

Giles v. California presented a pretty simple fact situation.  The defendant had shot and killed his former girlfriend.  He claimed self-defense, an assertion that was complicated by the fact that she didn't have a weapon, and had been shot six times, at least once while she was lying on the ground.  Complicating it even further was the testimony of a police officer that, three weeks before the shooting, Giles had accused her of having an affair, choked her, and held a knife to her face, telling her that he'd kill her if he found she was cheating on him.

The testimony of the police officer was the problem; the defense claimed that the girlfriend's statements were testimonial under Crawford v. Washington, and thus shouldn't have been admitted.  The California Supreme Court decided otherwise:  since Giles was the one who was responsible for the ex-girlfriend's unavailability, he had forfeited his right to object to his inability to confront her.

The Supreme Court reversed last week, deciding that while Giles' murder of his girlfriend was responsible for her being "unavailable," to put it mildly, he didn't kill her for the purpose of making her unavailable, so it sorta didn't count, at least for confrontation purposes.


Not surprisingly, a significant focus of the cases was domestic violence, because it is in that context that the question of forfeiture would most often arise.  This is one of the problems with Scalia's originalist approach; as Souter notes in his concurrence, "Today's understanding of domestic abuse had no apparent significance at the time of the Framing, and there is no early example of the forfeiture rule operating in that circumstance."  Indeed, the effect of the majority's opinion on domestic violence is the major thrust of Breyer's dissent, joined in by Stevens and Kennedy.

Scalia is not unsympathetic to those concerns.  He notes that "acts of domestic violence often are intended to dissuade a victim from resorting to outside help," and says that

Where such an abusive relationship culminates in murder,the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop herfrom reporting abuse to the authorities or cooperating with a criminal prosecution--rendering her prior statements admissible under the forfeiture doctrine.

Second, he makes clear something that Crawford and subsequent cases had not:  in order to be testimonial, a statement must be given to the police or their agents.

Statements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules, which are free to adopt the dissent's version of forfeiture by wrongdoing.

Interestingly, that's not helpful to the prosecution in Ohio; our EvidR 804(A)(5) provides

A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.  [My emphasis]

So what's the upshot of all this?  The net result of Giles might be the introduction of more victim's statements in domestic violence cases rather than less.  Up to this point, most prosecutors have relied on calling reluctant victims and then impeaching them with their prior statements; now, having been alerted by Giles to the concept, prosecutors may attempt to introduce the statements themselves as substantive evidence on a theory that the defendant forfeited his confrontation rights by a pattern of abuse of the victim.

Of course, that means the prosecutor must establish that pattern.  Keep in mind that this doesn't mean the prosecution gets to throw the entire history of the couple's relationship in front of the jury; as both Giles and the case law under 804(A)(5) makes clear, the issue of forfeiture is a legal question, and evidence on that is submitted to the judge in a hearing, not to the jury at trial.

While Giles appears to be a pro-defendant decision, in the long run it might not turn out that way.

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