Reviving hope for domestic violence prosecutions: Giles v. California.

• Author: Hussain, Aiysha

INTRODUCTION

On June 10, 2004, Los Angeles County Deputy Sheriff Eric Sandoval visited the home of Rickey Glen Luster and his wife, Barbara. (1) The Deputy Sheriff visited the Luster home because Barbara's psychologist asked the police to check on her after she missed an appointment she had promised to attend. (2) When the Deputy Sheriff arrived, he found Rickey outside wearing a football jersey covered in blood. (3) Deputy Sandoval asked Rickey about his wife, and Rickey responded that she was inside the house, taking a bath. (4) When Deputy Sandoval entered the home, he found Barbara's body on the living room floor, her face swollen and covered in blood. (5) A subsequent autopsy showed that Barbara had died from asphyxia, caused by strangulation. (6)

At trial, the California trial court admitted Barbara's statements to police from a domestic violence incident in 2003 under the forfeiture by wrongdoing doctrine. (7) Subsequently, in 2008, the Supreme Court decided Giles v. California, (8) stating that the testimony of a witness who is unavailable (9) is inadmissible under the doctrine of forfeiture by wrongdoing, unless the defendant specifically intended to prevent that witness from testifying. (10) Rickey appealed his conviction, claiming that Barbara's statements were impermissibly allowed into evidence. The court agreed and concluded that the 2003 statements should not have been admitted at Rickey's 2006 trial because Rickey did not kill "Barbara with the specific intent to prevent her from testifying anywhere, about anything." (11)

The result in Rickey's case demonstrates the courts' reluctance to admitting extrajudicial statements in the absence of a witness. The case confirmed professors' and practitioners' fear that Giles would prevent prosecutors from successfully prosecuting domestic violence (12) cases under the new standard. (13) In domestic violence cases, victims often refuse to testify in person at trial because abusers regularly intimidate them from seeking outside protection from law enforcement officials. (14) Statistics show that thirty percent of batterers assault their victims during prosecution, and as many as half threaten retaliatory violence. (15) As a result, prosecutors have little choice but to rely on victims' extrajudicial statements to convict batterers. However, the Giles holding seems to prevent such tactics. The remaining alternatives for prosecutors are to either pursue the case without enough evidence and undermine their chances of a successful prosecution, or have their case dismissed for lack of available evidence.

The Giles rationale is based on the Sixth Amendment right of criminal defendants to confront their accusers. If witnesses are not present at trial when they give their testimony, the accused cannot confront them. Thus, most out-of-court statements are not allowed into evidence. (16) This Note argues that it is still possible to include domestic violence victims' testimony in court despite Giles. If a domestic violence victim refuses to testify, and a prosecutor can prove that the victim is not testifying because the defendant intimidated her, the prosecutor may be able to successfully present testimony under the forfeiture by wrongdoing doctrine. (17) State and federal circuit courts have held that killing a witness or harassing a witness into not testifying is conduct that could satisfy the doctrine's wrongdoing standard. (18)

Giles is a setback for prosecutors. Nevertheless, the forfeiture by wrongdoing standard is still expansive enough to prosecute domestic abusers, even if a crucial witness is unavailable. Furthermore, by requiring pre-trial hearings to be governed by a preponderance of the evidence standard, state legislatures (19) will help prosecutors determine whether the forfeiture by wrongdoing standard applies whenever a crucial witness is unavailable.

Part I of this Note describes the cases that influenced the Giles opinion. Next, Part II evaluates the Giles opinion and its meaning for domestic violence cases in the future. Part III explains how the forfeiture by wrongdoing standard is expansive enough that defendants can be readily prosecuted. Finally, Part IV suggests that state legislatures should require pre-trial hearings for cases where forfeiture by wrongdoing may be an issue, and enforce a preponderance of the evidence standard at these hearings to aid in the prosecution of domestic violence cases.

1. BACKGROUND: THE SUPREME COURT'S BOLSTERING OF THE SIXTH AMENDMENT RIGHT TO CONFRONTATION

   The Confrontation Clause of the Sixth Amendment gives an accused individual the right to confront witnesses against him. (20) The rationale behind this right is that every defendant should have the ability to challenge the credibility and cross-examine a person who is making statements against him in open court, under oath and subject to penalty for perjury. (21) The Clause bears some resemblance to the common law rule preventing hearsay. (22) The Supreme Court, however, maintains that the Confrontation Clause is different from hearsay, and the two do not completely overlap. (23)

   One area of overlap between the Confrontation Clause and hearsay rules is the doctrine of forfeiture by wrongdoing. The doctrine is one of six exceptions to the hearsay rule under the Federal Rules of Evidence. It applies to the admissibility of an unavailable declarant's out of court statement "against a party that has engaged or acquiesced in wrongdoing that intended to, and did, procure the unavailability of the declarant as a witness." (24)

   To illustrate how forfeiture by wrongdoing, hearsay, and the Confrontation Clause relate to one another, consider the following hypothetical: Sam observes a crime taking place and files a report with the police two days prior to trial, but on the date of trial, Sam does not show to testify and goes missing. Generally, because Sam is unavailable to personally testify, allowing his statements to the police in court would be a violation of the defendant's Sixth Amendment right to confront witnesses against him. (25) The statements would also be inadmissible hearsay according to Federal Rule of Evidence 801(a)-(c). (26) Nevertheless, the statements can be admitted, for purposes of both the hearsay rule and the Confrontation Clause, under the doctrine of forfeiture by wrongdoing. (27) Forfeiture by wrongdoing can be asserted if there is evidence that the accused somehow disallowed or threatened Sam into not testifying. (28) Today, because of Supreme Court decisions like Crawford v. Washington, (29) Davis v. Washington, (30) and California v. Giles, (31) the forfeiture by wrongdoing doctrine is used in limited circumstances. These decisions, discussed below, ultimately expanded Confrontation Clause protection for defendants.

   The Confrontation Clause was first applied in Reynolds v. United States. (32) The defendant in Reynolds was on trial for bigamy. The Supreme Court held that because the defendant had purposefully prevented his second wife from testifying against him, her testimony from a prior trial was admissible, despite her unavailability. (33) In making this decision the Court stated:

   The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. (34) The Court did not specify that it applied forfeiture of wrongdoing, and the term does not appear in the case. However, the Court's conclusion that prior trial testimony could be admitted, because it was subject to cross-examination in the earlier trial, became a blueprint for the type of testimony that is permitted under the forfeiture by wrongdoing doctrine. (35)

   Ohio v. Roberts (36) was the first attempt to state a coherent theory on forfeiture by wrongdoing and the Confrontation Clause. (37) In Roberts, the Court considered whether the trial court appropriately admitted a transcript of witness testimony. The Court decided that before admitting hearsay statements from witnesses who were not present at trial, the prosecution must prove that the statements were reliable and the witness was unavailable. (38) Roberts elucidated two ways for prosecutors to prove reliability: (1) by demonstrating that the statement fell into a "firmly rooted hearsay exception;" (39) or (2) by showing that the statement was trustworthy. (40) When judges applied the test, it led to many unpredictable results because different judges in the same jurisdiction formed different standards of reliability. (41) This prompted the Court to revisit the issue in 2004 in Crawford v. Washington. (42)

   In Crawford, the Supreme Court criticized the Roberts reliability tests as too vague and prone to inconsistent interpretation. (43) The Court held that when the prosecution presents testimonial hearsay, the hearsay can survive a Confrontation Clause challenge only if the prosecution "(1) produce[s] the declarant for cross-examination; (2) prove[s] that the accused has forfeited his right of confrontation by wrongfully procuring the absence of the declarant; or (3) offer[s] the evidence pursuant to the hearsay exception for dying declarations." (44) Crawford loosely defined testimonial hearsay to be a statement made in a formal setting or in a setting where the declarant can foresee the statement being used for a trial, (45) ex parte in-court testimony or its equivalent, (46) or extrajudicial statements contained in formalized testimonial materials. (47) The Court also indicated that any statement given to police officers...