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Analysis: A way around the Giles rule


The Supreme Court ruling reinforcing the right to confront witnesses in a criminal trial turns out, at least for some cases, to be fairly easy for prosecutors to get around. Both the majority opinion, and a separate opinion of two Justices whose votes were necessary to make the majority, provide a formula at least for narrowing the impact of the ruling in Giles v. California (07-6053).

The Giles case involved this somewhat unusual scenario: Dwayne Giles, a Californian, killed his former girlfriend supposedly to keep her from cheating on him, but he asked the Court to bar the use from his trial of an earlier statement she had made to police against him, because — now dead — she could not be summoned for cross-examination.  That, he argued, was a denial of his Sixth Amendment right to confront a hostile witness, a right that the Court had strongly reaffirmed in Crawford v. Washington in 2004.

The state of California countered that, because his former girlfriend’s absence from the witness stand was a result of his murder of her, he forfeited his right to confront her.  It made no difference why he had killed her, according to the state.

Amid a fervent verbal duel over English and American legal history, between Justice Antonin Scalia and Justice Stephen G. Breyer, the Court ruled Wednesday in Giles’ favor — at least temporarily.  Scalia, writing for a 6-3 majority, said that the state had not shown that Giles had killed his wife explicitly to keep her from testifying, so his right of confrontation may have been violated by admitting, his former girlfriend’s earlier statement to the police.  California had a law that allowed use of such statements any time the accused had caused the witness to be absent, whatever the reason (including murder).

It is an ancient rule of law, Justice Scalia wrote for the majority, that a prior statement from an absent witness may only be used if the accused intentionally had taken steps to keep that witness off the stand.  “We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter,” he commented in the concluding paragraph.

But, perhaps significantly, Giles has not yet won.

Justice Scalia, in comments that appeared to be made at least partly to hold two of the six votes (and thus majority prevailing over three dissents), said that state courts were free now to probe what Giles’ intent was in killing his former girlfriend. If there is proof of an “abusive relationship” that ends in murder, Scalia said, that might support a finding that the crime represented an intent “to isolate the victim and to stop her” from reporting the abuse or cooperating with a criminal investigation.

He added: “Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.”  That is the kind of potential evidence of intent that state courts may now examine, the opinion said.

Justice David H. Souter, in a separate opinion joined by Justice Ruth Bader Ginsburg, gave special emphasis to the situation that might be present if a “domestic abuser in the classic abusive relationship” sought to keep the victim from seeking help from law enforcement officers.  “If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger,” Souter wrote.

Since their votes were essential parts of the majority, the added emphasis on a situation of domestic abuse (an emphasis that the three dissenters embraced, incidentally) could limit the impact on prosecutions that the Court’s decision might otherwise have.