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Argument Preview: Giles v. California

Stanford Law student Ruthie Zemel offers this brief preview of Tuesday’s argument in Giles v. California.

In No. 07-6053, Giles v. California, the Supreme Court will determine whether a criminal defendant forfeits his rights under the Confrontation Clause to cross-examine a witness by causing the witness’s death. Petitioner claims that the doctrine of forfeiture by wrongdoing requires an additional finding that his actions were specifically intended to prevent the witness from testifying; the State maintains that no such finding is necessary.


In 2004, in Crawford v. Washington, the Supreme Court held that testimonial hearsay was only admissible against a criminal defendant under the Confrontation Clause if that defendant had a prior opportunity to cross-examine the declarant. The decision abandoned a reliability-based inquiry established decades earlier in Ohio v. Roberts in favor of a bright-line rule recognizing an exception for forfeiture by wrongdoing. While the forfeiture doctrine is generally understood to require causation, Crawford did not specify whether it requires an additional finding of specific intent by the defendant to render the witness unavailable for trial. The Court is expected to answer that question in Giles.

Petitioner Dwayne Giles was charged in state court in California with the murder of his ex-girlfriend, Brenda Avie. On the night of her death, Avie came over to Giles’s grandmother’s house after finding out that he was there with his new girlfriend, Tameta Munks. Giles claimed that he asked Avie to leave, and remained alone in the garage. When Avie reappeared in the driveway, he testified that she issued threats and began to run at him. Giles claimed that he grabbed his uncle’s loaded nine-millimeter handgun, closed his eyes, and fired several shots.

His friend, Marie Smith, testified that she was inside the house when she heard a series of gunshots. She ran outside, along with Giles’s grandmother, to find Giles holding the handgun and standing eleven feet from Avie. Avie was not carrying a weapon when she was killed.

To support his claim of self defense, Giles testified that Avie was unstable and had a history of violent behavior. Over his objection, the trial court also admitted evidence of statements by Avie to a police officer describing a prior assault on her by Giles. The jury found Giles guilty of deliberate premeditated first-degree murder.

Giles appealed his conviction to the California Court of Appeals, which requested supplemental briefing on the issue of whether the admission of Avie’s statements on the prior assault had violated Giles’s rights under the Confrontation Clause. The Court of Appeals ultimately resolved the question in the State’s favor. Giles petitioned for review with the California Supreme Court, which granted the petition and unamimously agreed that Giles had forfeited his confrontation right by killing Avie. The California Supreme Court explained that the doctrine of forfeiture by wrongdoing applied when the defendant intentionally caused the witness’s unavailability by killing her, even absent an additional finding of specific intent.

Petition for Certiorari

Giles filed a petition for certiorari, which was granted on January 11, 2008.

The petition advances three arguments. First, Giles argues that the California Supreme Court’s broad construction of the forfeiture doctrine represents one side of an irreconciliable split pitting five state supreme courts and the Sixth Circuit against five other state supreme courts that construe the doctrine more narrowly. According to Giles, this split rests on fundamentally inconsistent interpretations of the Supreme Court’s 1879 decision in Reynolds v. United States and modern language construing the forfeiture doctrine.

Second, Giles contends that the California Supreme Court’s decision conflicts with the forfeiture doctrine as understood in the common law and at the time of the Sixth Amendment’s adoption. And under the methodology laid out by the Supreme Court in Crawford, Giles argues that the defendant’s right to confront witnesses maintains the same scope as it did at the time of the Founding Fathers.

Finally, Giles asserts that California’s broad construction of the forfeiture doctrine “emasculates” the defendant’s right to confrontation in homicide trials and risks doing so in prosecutions of traumatic crimes, such as domestic violence or child abuse, in which the commission of the crime at issue can also be found to have rendered the witness unavailable for trial. Giles cautions that such a rule perversely provides prosecutors with an incentive to introduce hearsay at trial instead of producing the declarant, and it undoes Crawford’s reaffirmation of a criminal defendant’s “stringent” right to confront the witnesses against him. Confrontation, Giles argues, is not a “benefit” but a “procedural right . . . necessary to ensure the fairness of the criminal process” that is only forfeited when the defendant specifically intends to silence a witness.

In its brief in opposition to certiorari, the State of California responds that the decision of the California Supreme Court is fully consistent with Reynolds, Crawford, and Davis, and rests on the equitable consideration that “no one shall be permitted to take advantage of his own wrong.” The State further asserts that the recent characterization of the doctrine as one of “forfeiture” rather than “waiver” belies a specific intent requirement, and that any such requirement in modern case law is limited to evidentiary hearsay rules, not constitutional law.

Finally, the State disputes the presence of a split of authority on the necessity of finding specific intent to support forfeiture when the defendant’s murder of the witness was the cause of the witness’s unavailability. The State argues that four of the cases mentioned by Giles do not reach the particular question of whether specific intent is necessary to support forfeiture and that another three do not involve the murder of the declarant. To the extent that a split is found, the State contends that it is a recent divergence and should be allowed to percolate in the lower courts.

Merits Briefing

In its brief on the merits, Giles asserts that a long line of authority beginning with the common law and stretching through the Supreme Court’s 2004 decision in Crawford supports his claim that the forfeiture doctrine requires a finding of specific intent. According to Giles, the common law forfeiture doctrine applied only when the defendant had “procured” or “contrived” to prevent the witness from testifying—language understood in contemporaneous dictionaries to connote “a deliberate intent to carry out a specific design.” Giles suggests that the requirement of specific intent was further confirmed in contemporaneous treatises, in Reynolds, and in the cases that followed that decision. The only other common-law exception to the rule barring testimony by deceased witnesses absent a prior opportunity for cross-examination was a narrow dying declarations exception. Giles asserts that this exception was closely circumscribed and would have been superfluous if the simple act of murder sufficed to constitute a forfeiture of the defendant’s confrontation rights.

Next, Giles asserts that the modern doctrine of forfeiture has continued to require specific intent to support a finding of forfeiture. Up until the confusion created by Crawford, Giles asserts that the specific intent requirement was a mainstay of the forfeiture doctrine, even as some circuits relaxed the requirement that prior statements must have provided an opportunity for cross-examination. Giles also draws support from Federal Rule of Evidence 804(b)(6), which confirms the necessity of specific intent both in its text and in the supporting Advisory Committee note.

In the face of this longstanding line of authority, Giles claims that nothing in the characterization of the forfeiture doctrine in Crawford or Davis provides a reason to back away from the specific intent requirement. He asserts that the confrontation right reaffirmed in Crawford represents a critical procedural guarantee that can only be forfeited by conduct intended to subvert the trial process and “destroy the integrity of the criminal-trial system.” Even under equitable principles, Giles insists, forfeiture cannot serve as “an additional penalty for alleged wrongdoing.”

Finally, Giles reiterates that the logic of California’s broad forfeiture doctrine would not only create a categorical exclusion to confrontation rights for all homicide defendants, but also would apply whenever a defendant was accused of any traumatic crime. This would undermine prosecutorial incentives to introduce witness testimony and obliterate “an essential and fundamental requirement” of a fair trial in a large class of criminal cases.

In response, the State of California makes four arguments. First, it stresses that “equitable considerations of fairness, necessity, and the integrity of the truth-finding function of the criminal trial” prohibit a defendant who murders a witness from complaining about her unavailability for cross-examination at trial. The loss of the witness’s testimony “follows from the inevitable and necessary consequence” of her killing, the State argues, and forfeiture is necessary to prevent the defendant from presenting a one-sided picture at trial and impermissibly profiting from his own wrongdoing.

Second, the State argues that its conception of the forfeiture doctrine is supported by the underlying rationale of the common-law forfeiture and dying declaration doctrines. It acknowledges that the traditional dying declaration doctrine would cover statements such as the ones at issue in this case, but attributes those restrictions to “mere hearsay concerns” rather than constitutional mandates. The State further contends that Giles’s discussion of Federal Rule of Evidence 804(b)(6) similarly conflates evidentiary rules with constitutional rights, and does not dictate the scope of the latter.

Third, although acknowledging that its conception of the forfeiture doctrine will permit hearsay evidence without allowing for cross-examination by the defendant, the State notes that a series of protections remain in place to protect the defendant’s right to a fair trial. Not only is the defendant able to introduce defense evidence contesting the contents of the admitted statements, but he also retains statutory hearsay and Due Process objections to the evidence. Moreover, a forfeiture ruling must be supported by independent corroborative evidence. On the other hand, failure to admit the deceased victim’s statements, the State argues, would result in a one-sided presentation of evidence by the defense.

Finally, the State disputes that the logic of its decision would apply with equal force to cases of domestic violence and other traumatic crimes. Rather, it notes that forfeiture in this case was based on the gravity of the crime of murder, the tight causal link between the crime and the witness’s unavailability, and the obviousness of the resulting unavailability of the victim to testify subsequent to her killing, which may differ in other crimes.