Sometimes dead men do tell tales.
The Sixth Amendment guarantees the defendant in a criminal case "the right ... to be confronted with the witnesses against him ...." What if the witness is dead? That generally means his statements are inadmissible in evidence, but there are a few exceptions.
In Giles v. California (2008), the U.S. Supreme Court disallowed an overly broad rule of "forfeiture by wrongdoing," where a finding by the judge that the defendant had committed the murder for which he was on trial was enough, by itself, to allow the statement of the victim. However, the high court acknowledged an exception going back to 1666 for statements of a witness whom the defendant has wrongfully made unavailable for the purpose of preventing his testimony. That is, the prosecution must make "a showing that the defendant intended to prevent a witness from testifying."
Yesterday, Adam Wagner had this story in the Wilmington, NC Star-News:
The Sixth Amendment guarantees the defendant in a criminal case "the right ... to be confronted with the witnesses against him ...." What if the witness is dead? That generally means his statements are inadmissible in evidence, but there are a few exceptions.
In Giles v. California (2008), the U.S. Supreme Court disallowed an overly broad rule of "forfeiture by wrongdoing," where a finding by the judge that the defendant had committed the murder for which he was on trial was enough, by itself, to allow the statement of the victim. However, the high court acknowledged an exception going back to 1666 for statements of a witness whom the defendant has wrongfully made unavailable for the purpose of preventing his testimony. That is, the prosecution must make "a showing that the defendant intended to prevent a witness from testifying."
Yesterday, Adam Wagner had this story in the Wilmington, NC Star-News:
A jury of Nashid Porter's peers will soon hear testimony from a dead man.
On Tuesday, Porter's trial will begin in the July 27, 2012, killing of Brian Grant, 32, outside a North 30th Street home. Porter is also charged with the Nov. 12, 2014, slaying of Obediah Hester, who was scheduled to be a witness in the Grant case before he was killed.
Judge Chuck Henry on Monday ruled that select parts of Hester's videotaped interviews with Wilmington Police Department detectives in July 2012 and February 2014 and some information about his killing will be admissible in the Grant murder trial.
"The court is going to allow ... the state to introduce the relevant statements of Mr. Hester based upon the court's conclusion that it was the defendant's wrongful action that made Mr. Hester unavailable to testify," Henry said.
Did the judge also make the finding of purpose required by Giles? Hope so.
Deputy Solicitor General Don DeNicola and I crafted the best brief we could in Giles. But we had an uphill battle that, unfortunately, we lost.
The upside, however, of the Court's refusal to adopt the broad forfeiture by wrongdoing "equitable" rule that we proposed was the Court's subsequent willingness to narrow the scope of what constitutes "testimonial" hearsay.
Lose some. Win some.