Forfeiture by wrongdoing in a post-Giles world.

• Author: Tanner, Herb, Jr.

IN GILES v, CALIFORNIA, 128 S.Ct. 2678 (2008), the United States Supreme Court confirmed that the concept of forfeiture by wrongdoing of the Sixth Amendment's right of confrontation remains a powerful tool in the prosecution of domestic violence. At the same time the Court restricted the doctrine by setting out the requirement that the prosecutor show that the defendant acted with the intent to cause the unavailability of the witness.

THE DEATH OF BRENDA AVIE

Dwayne Giles shot and killed his ex-girlfriend, Brenda Avie, outside his grandmother's garage. No one else witnessed the shooting, but Giles's niece heard Giles and Avie speaking. Avie then yelled out, "Granny," several times and shots rang out. Giles's niece and grandmother ran outside to see Giles standing near Avie's body with a gun in his hand. Avie had been shot six times. Giles fled the scene. He was apprehended and arrested two weeks later and charged with murder.

At trial, he alleged he shot Avie in self-defense. He testified that he knew she was jealous, that she had threatened him and others, and that she had previously shot a man. He testified that, on the day of the shooting, Avie threatened to kill him and his new girlfriend. Giles then went into the garage and retrieved a gun; when he headed back toward the house, Avie charged at him. Fearing she had something in her hand, he closed his eyes and shot her. He claimed that he did not intend to kill her.

At trial, prosecutors admitted statements Avie had made to a police officer three weeks before the shooting. The officer was responding to a domestic violence report. Avie told officers that Giles accused her of having an affair, grabbed her by the shirt, lifted her off the floor, and punched her in the face and head. After she broke free, Giles held a knife about three feet from her and threatened that he would kill her if he discovered she was cheating on him. Those statements were admitted under California Evidence Code $1370, which permits admission of hearsay describing the infliction or threat of physical injury when the declarant is unavailable and the statements are trustworthy. (1)

Giles was convicted of first-degree murder. He appealed. The state argued, and the California Court of Appeals and Supreme Court of California both agreed, that Giles had forfeited his right to confront Avie by killing her, an intentional act that made her unavailable for cross-examination. Further, the California courts specifically found that Giles forfeited his Confrontation Right even though he did not murder Avie with the specific intent to make her unavailable to testify.

This concept, known as equitable forfeiture, was the issue directly addressed in the Giles case. In its simplest form, the concept is this: if a defendant does a wrongful act that leads to a declarant's unavailability, he will be deemed to have forfeited his right to confront the declarant so that he does not profit from his wrongdoing.

THE RECENT HISTORY OF FORFEITURE

The Groundwork: Testimonial v. Non-Testimonial As described above, equitable forfeiture seems to have been a potentially powerful tool for prosecutors seeking to prosecute perpetrators of domestic violence, who so often ensure, by coercion or worse, that their victims do not testify at trial To understand why the Supreme Court, in overruling the California decisions, chose to eliminate such a useful prosecutorial tool, one must first examine the rationale behind the holding in Giles. This logic stems from cases decided merely a few years before Giles, in which the circumstances under which the Sixth Amendment's Confrontation Clause could be invoked by a defendant were examined and outlined.

Prior to Giles, a body of case law was developing around the concept of equitable forfeiture. This kind of forfeiture applied only to those statements that were considered testimonial under Crawford v. Washington, 541 U.S. 36 (2004), a case decided during Giles's appeal. Crawford, the progenitor of the line of cases leading to the decision in Giles, dealt with the defendant's stabbing of a man whom he believed to have raped his wife. The statement that the defendant's wife, Sylvia, had given to the police about the altercation was introduced at trial because Sylvia, asserting the marital privilege, refused to testify. The Supreme Court, with Justice Scalia writing the majority opinion, ruled that statements given to police officers during interrogations qualify as testimonial, and that defendants have the benefit of the Confrontation Clause when such evidence is introduced.

Further demarcation of the line between testimonial and non-testimonial statements occurred in Davis v. Washington, 547 U.S. 813 (2006), and Hammon v. Indiana, decided simultaneously by the Court. Scalia again wrote the majority opinion, ruling that the statements to a 911 operator by a victim were not testimonial in Davis, but that statements to a police officer after a domestic assault had occurred were testimonial in Hammon, since the batterer was not allowed to be present during the questioning. It is important to note that Scalia does not fault the officers for doing this, but merely rules that such testimony, if introduced, invokes the protections of the Confrontation Clause. These cases, along with Crawford, define testimonial evidence as anything that resembles in its purpose the sort of statements a witness would provide in court; that is, the statement must be given with the knowledge and purpose of aiding later prosecution. Thus, the 911 call in Davis, whose purpose was to procure emergency aid, was not ruled to be testimonial, but the interrogations conducted by police officers in Hammon were.

In Giles, the state conceded that the statements at issue were, in fact, testimonial. Relying on the decision in Crawford, and using Scalia's own language, the California Court of Appeals ruled that testimonial evidence in question was still admissible, because Giles had forfeited his right of confrontation by killing Avie. Giles v. California, 123 Cal. App. 4th 475 (2008). Justices Alito and Thomas, in separate concurring opinions in the Supreme Court's overruling of Giles, chided the state for that decision, expressing their opinion that the statements in question were non-testimonial. This highlights the need for prosecutors to rigorously study the fine between testimonial and non-testimonial statements drawn in Davis and Hammon, particularly concerning statements to the police and related officials.

Equitable Forfeiture not a Founding Era Exception In his opinion in Giles, just as he did in Crawford, Justice Scalia examined the text of the Sixth Amendment and drilled deep into the historical record to rule that forfeiture required the defendant to act with the intent to make the declarant unavailable. The first task was to determine the scope of forfeiture at the time of the drafting of the Amendment. Beginning from the holding in a case decided in 1666, Lord Morley's Case, 6 How. St. Tr. 769 (H.L. 1666), the Court found that testimonial statements were admitted at the time of the founding if a "witness was 'detained' or 'kept away' by the 'means of procurement' of the defendant." Those words, "detained" and "procurement," suggest that the defendant must act with the design to keep the declarant from testifying against him.

This finding was bolstered by the fact that Justice Scalia could find no cases with circumstances similar to Giles that invoked forfeiture to admit unconfronted statements:

The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying--as in the typical murder case involving accusatorial statements by the victim--the testimony was excluded unless it was confronted or fell within the dying-declaration exception. Prosecutors do not appear to...