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Giles v. California: Defining the Scope of "Forfeiture By Wrongdoing"

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Today, the US Supreme Court granted certiorari in Giles v. California (07-6053), a case that will review whether the Confrontation Clause permits the hearsay statement of a witness who is unavailable for trial because the defendant killed her - even though he did not intend to silence her testimony when he killed her. The California Supreme Court ruled in March of last year that the hearsay statement was admissible, but placed some limitations on how and when the statement would be allowed in court.

In Giles, the defendant was charged and convicted with the murder of his former girlfriend Brenda Avie. According to witnesses, Avie had arrived at the defendant's grandmother's house on the night of the murder, and had talked with defendant for about a half hour. Witnesses then heard the victim yell "Granny" several times followed by a series of gunshots. When witnesses arrived on the scene, they saw defendant standing about eleven feet from Avie with gun in his hands. Defendant then fled the scene and was arrested sixteen days later.

Avie had been shot six times in her torso. Two of the wounds were fatal. Avie had not been carrying a weapon when she was shot.

At trial, defendant testified that he had shot Avie in self-defense. He testified that Avie had a history of violence and had threatened both defendant and his current girlfriend. Defendant also claimed he had shot at Avie only because she had "charged" him, and he was afraid that she had something in her hands when he fired the fatal shots. Defendant claimed he never meant to kill Avie.

The jury did not believe defendant's testimony and convicted defendant of first degree murder.

On appeal, defendant argued that the trial court had improperly admitted a statement that Avie had made to a police officer a few weeks before the shooting. The trial court had admitted Avie's prior statement to a police officer that defendant had held a knife to her throat and threatened to kill her. In allowing the statement, the trial court relied on the pre-Crawford exception to hearsay evidence that allowed statements describing the infliction of physical injury to the declarant when the declarant was unavailable and the statement was trustworthy. The Court of Appeal upheld the admission of Avie's statements, reasoning that the statement was admissible because it fell under a hearsay exception that had been valid at the time of the defendant's trial, and that admissibility was not altered because of the subsequent U.S. Supreme Court ruling in Crawford v. Washington.

When the California Supreme Court decided the case in 2007, it took particular interest in how to define the "forfeiture by wrongdoing" exception post-Crawford. In its decision in Crawford v. Washington, the Supreme Court had held the Confrontation Clause barred the admission of all "testimonial" statements unless the declarant was unavailable and the defendant had a prior opportunity to cross-examine the defendant. An exception to this rule was any "testimonial" statement made out of court by a defendant who was unavailable because of the defendant's wrongdoing. This is known as the "forfeiture by wrongdoing" exception. It allows out-of-court statements to be used at trial even when the defendant cannot confront the witness against him. The statements are allowed on the equitable grounds that the defendant should not be able to benefit from his own wrongdoing.

In Giles's case, the defendant claimed that the "forfeiture" exception was not applicable because he did not kill Avie with the intent of preventing her testimony at any pending or potential trial. In effect, the defendant argued that because he had not intended to stop Avie from testifying, he had not waived his right to confront her about the statements she had made to the police officers. Since he had not waived the right to confront her at trial, the hearsay statements should not have been admitted.

In an opinion authored by Justice Ming Chin, the California Supreme Court reasoned that the "forfeiture" doctrine had been mischaraterized by some courts as a "waiver by misconduct doctrine." The Court reasoned such a characterization was in error because, pre-Crawford, waiver had been characterized as "the 'intentional relinquishment or abandonment of a known right or privilege,' [citations omitted], and is only one means by which forfeiture may occur." People v. Giles, 40 Cal.4th 833, 849 (2007). Therefore, "forfeiture principles can and should logically and equitably be extended to other types of cases in which the intent-to-silence element is missing." Id. For the California Supreme Court it was the "truth-seeking" function of the court that was most important, and factfinders were entitled to access evidence that the defendant had made unavailable through his own actions.

In reaching this decision, the California court also had to rule on how to allow such evidence when the defendant was on trial for the very wrongdoing (murder) that had caused him to forfeit the right to confront the witness. This inquiry was different from classic witness tampering cases where the defendant was typically on trial for an underlying crime and not the crime that made the witness unavailable. This was a tricky inquiry because a finding of forfeiture by the court depended on a court determination of whether the defendant committed the criminal act.

The court concluded that to allow the hearsay statement, the proponent of the evidence had to show by a preponderance of the evidence that the defendant procured the unavailability of the witness. In addition, the court placed limits on when the evidence would be allowed. The statement would be allowed if the witness was genuinely unavailable to testify and the unavailability for cross-examination was caused by the defendant's intentional criminal act. Finally, the prejudicial value of the statement was still to be considered by the court, and the jury was not to be advised of the trial court's determination that it was "more probable than not" that the defendant had committed the underlying act.

It will be interesting to see how the Supreme Court approaches this case. The key question is whether the high court accepts defendant's view that "forfeiture by wrongdoing" is only applicable if the defendant intended to silence the witness, or if it will rely on the "maxim" quoted in Reynolds v. United States, 98 U.S. 145, 159 (1878) "that no one shall be permitted to take advantage of his own wrong; and consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony."

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