Giles v. California and Forfeiture by Wrongdoing: Timing is Everything

AuthorAdam Kyle Mansfield
PositionJuris Doctor, 2009, Capital University Law School

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The Unites States Constitution’s Confrontation Clause guarantees “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”1This provision, as construed by the Court in Crawford v. Washington,2protects a criminal defendant from the admissibility of testimonial out-of-court statements made by an unavailable witness, if the defendant has not had a prior opportunity to cross-examine the witness.3Ever since the Court’s seminal decision in Crawford, the entire sea of Sixth Amendment Confrontation Clause jurisprudence has been nothing but rough waters. In Crawford, the Court overturned decades of precedent regarding the Confrontation Clause by reexamining it through an originalist lens.4Even though the Court completely reformulated the Confrontation Clause’s application, the Court provided minimal guidance and explanation as to its contours and exceptions.5

Copyright © 2010, Adam Kyle Mansfield.

* Juris Doctor, 2009, Capital University Law School. I would like to thank Professor Rozelle for reviewing this note, Professors Kobil and Gilles for engaging my interest in constitutional law, and Capital University Law Review for giving me this oppurtunity.

1U.S. CONST. amend. VI; see also Pointer v. Texas 380 U.S. 400, 403 (1965) (extending the federal right to confront witnesses to the states based on the Fourteenth Amendment).

2541 U.S. 36 (2004).

3Id. at 68.

4See id. at 60–68; see also Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Fictional Originialism in Crawford v. Washington, 71 BROOK. L. REV.

105, 105 (2005) (defining the originalist approach as a method of interpreting constitutional provisions according to “the public meaning that a constitutional provision carried at the time the provision was framed”).

5In Crawford, the Court overturned the previous test from Ohio v. Roberts, 448 U.S. 56 (1980), which stated that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate indicia of reliability.” Crawford, 541 U.S. at 42 & 68–69. In its place, the Court pronounced that the Confrontation Clause guarantee applies to “witnesses” who make “testimonial” statements. Id. at 59. Therefore, “testimonial” statements are barred from admission by the Sixth


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In 2006, the Court attempted to calm the turbulent waters created by Crawford with its decisions in Davis v. Washington6and the companion case, Hammon v. Indiana.7In the combined decision, the Court expounded upon Crawford by adding an element of “primary purpose”8and applying a set of outside limitations as to what “testimonial” means through a few examples of “testimonial” statements.9Notably, in Crawford, the Court stated that the only exceptions to this re-worked Confrontation Clause standard were those that existed at the time of the founding of our nation, but gave only brief mention to what they were and how they would actually be applied and interpreted.10

In the wake of these landmark decisions, it was only a matter of time before a case like Giles v. California11made an appearance in front of the Court. Giles forced the Court to consider and make a definitive ruling on the “forfeiture by wrongdoing” exception as applied against the newly interpreted Confrontation Clause.12Again, the Court took an originalist

Amendment if the witness is unavailable to testify at trial and the criminal defendant had a prior opportunity to cross-examine that person. Id. However, the Court explicitly refused to define the contours of “testimonial.” Id. at 68. Instead, the Court defined a limited number of statements which are “testimonial” such as “affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine . . . depositions, confessions, [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 51–52.

6547 U.S. 813 (2006).


8Id. at 822. The Court stated:

Statements are nontestimonial when made in the court of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. (emphasis added).

9See id. at 829 (distinguishing the instant case from a line of English cases because they did not involve “statements made during an ongoing emergency”).

10Crawford, 541 U.S. at 54, 56 n.6.

11128 S. Ct. 2678 (2008).

12Id. at 2682.

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approach to its examination of the forfeiture by wrongdoing exception.13

Ultimately, in a plurality opinion written by Justice Scalia, the Court held that the forfeiture by wrongdoing exception permits the introduction of statements made by an unavailable witness only if they were “‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”14In other

words, the exception only applies when defendants engaged in conduct specifically designed to prevent witnesses from testifying, regardless of whether the state has initiated criminal proceedings against the defendant.15

Despite the plurality’s persuasive analysis of the common law at the time of the founding and the justices’ admirable attempt to calm the storm, they misconstrued the forfeiture by wrongdoing exception, leaving us with a false sense of security. A closer examination of the English common law cases and early American cases upon which the plurality heavily relied evidences the failure in interpretation.16This examination shows that these cases provide only minimal support for the Court’s decision, due to a complete lack of attention given to the time limitations inherent to the exception, and any support built thereon is completely misplaced. In addition, the Court stated that Federal Rule of Evidence 804(b)(6) was a codification of the forfeiture doctrine;17yet, an analytical comparison of Giles to Federal Rule of Evidence 804(b)(6) shows material discrepancies between the holding in Giles and the rationale behind the rule. Lastly, the analysis in Giles does not meld with prior Court decisions involving fundamental constitutional rights and the doctrines of “waiver” and “forfeiture.” The conclusion shows that the forfeiture by wrongdoing exception should be limited in its application to only those cases that involve post-indictment, post-crime, or post-investigation witness tampering, and wrongdoing.


The facts in Giles are fairly straight forward. Defendant Dwayne Giles was charged with the murder of his ex-girlfriend, Brenda Avie, for allegedly shooting her “outside the garage of his grandmother’s house.”18

13Id. (considering whether the rule “is a founding-era exception to the confrontation right”).

14Id. at 2683.

15See id.

16See id. at 2682–84.

17Id. at 2687; see also Davis v. Washington, 547 U.S. 813, 833 (2006).

18Giles, 128 S. Ct. at 2681.

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There were no eyewitnesses, but Giles’ niece had overheard him and Avie initially “speaking in conversational tones,” but then Avie yelled “Granny!” several times, followed by gunfire.19After analyzing the multiple gunshot wounds, it was found that Avie was shot once while “holding her hand up,” again while “turning to her side,” and a third time “while lying on the ground.”20“At trial, Giles testified that he acted in self-defense.”21Giles contended that Avie had threatened his life and the life of his new girlfriend several times in the past.22He alleged that on the day of the shooting, after she “charged at him, . . . he closed his eyes and fired several shots,” but did not intend to kill her.23

The prosecution sought to introduce the out-of-court statements Avie made to the police several weeks prior to the shooting.24These statements accused Giles of domestic abuse and severe violence, which would have effectively nullified his self-defense claim.25The California Supreme Court ruled that Giles’ intentional criminal act qualified as wrongdoing, and therefore, Avie’s statements were admissible under the forfeiture by wrongdoing exception to the Confrontation Clause.26Giles ultimately appealed to the United States Supreme Court, which overturned the decision because the California Supreme Court applied the forfeiture by wrongdoing exception in a manner “unheard of at the time of the founding or for 200 years thereafter.”27

The plurality based its holding on their interpretation of how courts applied the exception at the time of the founding.28The plurality stated that the forfeiture by wrongdoing exception “permitted the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”29In defining what “means or procurement” meant, the Court examined several early English common law cases to determine its historical meaning.30The plurality also pointed


20 Id.





25See id. at 2681–82.

26See People v. Giles, 152 P.3d 433, 446–47 (Cal. 2007).

27Giles, 128 S. Ct. at 2693.

28Id. at 2682.

29Id. at 2683.

30Id. at 2683–91.

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