Forfeiture of the confrontation right in Giles: Justice Scalia's faint-hearted fidelity to the common law.

• Author: Yee, Ellen Liang

1. INTRODUCTION

   The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the fight.., to be confronted with the witnesses against him." (5) For many years, the Confrontation Clause was interpreted to protect against admission of unreliable evidence under Ohio v. Roberts and its progeny. (6) In Crawford v. Washington, a landmark opinion written by Justice Scalia, the Court denounced the unpredictability of the Roberts approach, which based the protection of the Sixth Amendment on the "vagaries of the rules of evidence" and "amorphous notions of 'reliability.'" (7) Crawford concluded that the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination." (8)

   During the six years following Crawford, unpredictability has plagued lower courts deciding evidence issues in criminal law cases. Much of this lack of predictability centers on Crawford's unnecessarily (and self-admittedly) amorphous notion of "testimonial." (9) Widespread disagreement among lower courts in their application of Crawford has gradually required the Court to start outlining the contours of what kinds of statements are "testimonial." For example, two years after Crawford, the Supreme Court offered some guidance in Davis v. Washington by defining more specifically which police interrogations invoke the protection of the Confrontation Clause. (10) But other important uncertainties have continued to plague the Court's new framework under Crawford.

   One such uncertainty relates to what is known as the "forfeiture by wrongdoing" doctrine. In evidence law, hearsay statements that are ordinarily excluded may be admissible if the declarant is rendered unavailable to be a trial witness due to the defendant's wrongdoing. (11) This exception has particularly important consequences where a witness is also a victim, as is frequently the situation in domestic violence and child abuse cases. In the constitutional context, the Crawford court suggested there may be historical exceptions to the Confrontation Clause that are unrelated to the Roberts reliability rationale. (12) For example, if declarants are rendered unavailable by the defendant's wrongdoing, their testimonial hearsay statements may be admissible under the equitable rule of forfeiture by wrongdoing. (13) As in the exception to the hearsay exclusionary rule codified in Federal Rule of Evidence 804(b)(6), the rationale for admitting such evidence is not based on the theory that it is more reliable, but on the grounds that the defendant should not benefit from his own wrongdoing. (14) Following Crawford, many courts also used the forfeiture by wrongdoing doctrine to admit testimonial statements, but did so inconsistently. For example, some courts required proof that the defendant intended to render the victim unavailable as a trial witness, while other courts did not require such proof. (15)

   In Giles v. California, the Supreme Court issued another Confrontation Clause opinion written by Justice Scalia. (16) The Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is "most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding." (17) Imposing that historical limitation on the scope of exceptions, the Court held that the forfeiture by wrongdoing doctrine was only an exception to the Sixth Amendment's confrontation requirement when the defendant "engaged in conduct designed to prevent the witness from testifying." (18) In other words, a defendant does not forfeit his Sixth Amendment confrontation fight when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial, unless the judge finds that the defendant's wrongful act was for the purpose of making the witness unavailable to testify.

   Given the methodological preference for constitutional originalism in Crawford, Davis, and Giles--particularly as reflected in Justice Scalia's opinions--this Article analyzes whether the historical claim underlying the Court's opinion in Giles is sound. (19) An accurate assessment of the history requires an analysis of whether forfeiture of Sixth Amendment confrontation rights by wrongdoing requires proof of "intent" as understood at the time of the founding. Understanding that this issue involves not only constitutional law, but also evidence law and substantive criminal law, this Article analyzes how all three bodies of law inform the interpretive question presented by this issue. If the history is approached through the common law, properly assessed, Giles' very methodology does not clearly support its outcome or the Court's limited approach to forfeiture.

   Part II will describe and discuss the recent line of Confrontation Clause cases including Giles. Justice Scalia has taken the lead in directing the Court down a new path of Confrontation Clause interpretation. Beginning in Crawford and continuing in Davis and Giles, Justice Scalia's new framework has profoundly altered criminal trial procedure. (20) However, beneath the surface of the Court's six to three ruling on the outcome, the Giles Court was more fractured in its reasoning than the vote tally indicates on its face.

   Part III will briefly trace the development of the right of confrontation from English and American sources of law. This Part will focus on confrontation issues surrounding and including the forfeiture by wrongdoing exception.

   Part IV examines the historic and contemporary legal resources regarding the mental state element. This Part will look not only at constitutional law, but also at evidence law and substantive criminal law to analyze the Giles Court's interpretation of the forfeiture by wrongdoing doctrine. By referencing these other related areas of law, this Part will provide a more broad-based, solid foundation supported by the history of the common law for lower courts to use as they are deciding whether the prosecution has sufficiently shown that the defendant's right to confrontation should be forfeited.

   Part V concludes by warning that constitutional interpretation of criminal procedure cannot be divorced from a fair understanding of the common law. That understanding cannot be reached through an inference about the common law's meaning based on assumptions about the legal system, especially based on the lack of cases addressing issues that were unlikely to have been litigated. Courts and litigants addressing forfeiture would be ill-advised to rigidly apply the rule set forth by Justice Scalia's majority opinion in Giles without taking into account the proper common law understanding of intent in the forfeiture context.

2. JUSTICE SCALIA'S CONFRONTATION CLAUSE TRILOGY

   The significance of the Confrontation Clause in American jurisprudence greatly expanded in 1965 when the Court incorporated the Sixth Amendment via the Due Process Clause of the Fourteenth Amendment and applied it to the states. (21) In the fifteen years following incorporation, the Court addressed several interpretation and application issues. (22) In the landmark case Ohio v. Roberts, the Court addressed recurring issues regarding the admissibility of hearsay evidence by creating a two-prong test requiring both unavailability and reliability as predicates to admission. (23) To prove reliability, the Court determined that the evidence must either "fall[] within a firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." (24) Finding that the Confrontation Clause and the hearsay rule are "designed to protect similar values" (25) and "stem from the same roots," (26) the Roberts Court constructed an analysis that used the rules of hearsay as a means of determining the constitutional admissibility of evidence. As the Court viewed the function of the Confrontation Clause primarily as a safeguard against unreliable evidence, it gradually diminished the unavailability requirement. (27) In the cases following Roberts, the Court continued to entwine the constitutional issue of confrontation with the evidentiary issue of hearsay reliability. As this doctrine developed, many criticized it for diminishing defendants' rights to confrontation and for determining reliability with a standard that was vague, arbitrary, and subjective. (28) Beginning with Crawford, the Court has redirected the focus of its Confrontation Clause analysis to the common law. Claiming that the Confrontation Clause "is most naturally read as a reference to the right of confrontation at common law," the Court has attempted to outline the scope of that common law right and admit "only those exceptions established at the time of the founding." (29)

   1. CRAWFORD V. WASHINGTON

      In Crawford v. Washington, the Court reevaluated its approach to the Confrontation Clause and shifted the focus of the Clause from functioning as a judicially-determined safeguard against unreliable evidence to operating as a procedural trial right. (30) In reviewing the history of the Clause for clues to its intended meaning, the Court determined that "the principal evil at which the Confrontation Clause was directed was the civil law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (31)

      In Crawford, the Court concluded that the Sixth Amendment barred "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (32) While the rule appears strikingly simple, its application has been anything but simple and clear. Crawford did not provide courts sufficient guidance in determining which statements are "testimonial," and thus implicate the Confrontation Clause. (33)

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