LawyersUSA

WASHINGTON – Can a defendant on trial for murder seek to exclude the statements of the victim, claiming her unavailability at trial violates his right to cross-examine her under the Confrontation Clause?

That is the issue before the U.S. Supreme Court in a case that seemed to have the justices taking sides – and taking on each other – during oral arguments yesterday.

Giles v. California, No. 07-6053, arises from the murder trial of Dwayne Giles, who was charged with fatally shooting his girlfriend, Brenda Avie. Giles admitted to shooting Avie, but claimed it was in self-defense.

During his trial, the state offered – over Giles' objection – a statement Avie had made to police that Giles had punched, choked and threatened her with a knife. The statement was admitted under a California rule of evidence that provides for a hearsay exception when witnesses are unavailable to describe the infliction of an injury or a threat. Giles was convicted.

He appealed, arguing that the Confrontation Clause should have barred admission of the statement unless the prosecution showed Giles killed Avie for the purpose of making her unavailable at trial.

Since no charges were pending against him at the time of the killing, he argued, he did not forfeit his right to assert Confrontation Clause exceptions.

While the appeal was pending, the U.S. Supreme Court handed down its 2004 decision in Crawford v. California, 541 U.S. 36, holding that out-of-court statements that are "testimonial" in nature cannot be admitted at trial where the witness is unavailable for cross-examination.

The state countered, arguing that Crawford did not apply because Giles forfeited his Confrontation Clause protections by killing the witness. The state appellate courts affirmed the conviction. Giles appealed to the Supreme Court.

Scalia interjecting

At oral arguments yesterday, Los Angeles attorney Marilyn Gail Burkhardt, arguing on Giles' behalf, seemed to have an ally in Justice Antonin Scalia – who jumped in on questions posed by other justices to help Burkhardt out in several instances.

Justice Anthony Kennedy questioned whether the statements were being offered as testimonial evidence or to prove Giles' state of mind – a crucial issue under the Crawford analysis.

"[It seems] to me that this is responsive to his defense" of self defense, Kennedy said. "And you say: 'Well, it's his state of mind, and her testimony was general.' I think it does go to his state of mind."

Before Burkhardt could respond, Scalia did.

"I'm not following you," he said. "Is there an exception to the hearsay rule so long as the hearsay is brought in [during] rebuttal?"

"Not to my knowledge," Burkhardt answered.

Justice Stephen Breyer turned to 17th and 18th century common law to determine what the purpose of the Confrontation Clause was, noting that testimony by wives, children, atheists and convicted felons was not admitted.

"So now are we supposed to incorporate all of these things into the Confrontation Clause?" Breyer asked.

"Do any of them have anything to do with the Confrontation Clause?" Scalia interjected.

"No," Burkhardt said.

"It doesn't have to do with the Confrontation Clause that you couldn't cross-examine a person who didn't understand the meaning of the oath?" Breyer persisted.

"The Confrontation Clause sets forth a basic policy, which is that we are to have live testimony in court," Burkhardt said. "We have to have witnesses available in court."

Later, Kennedy tried to steer the conversation back to Breyer's point.

"I think what Justice Breyer's line of questioning points out is that there were other provisions of the evidence rule followed in England which would not allow the testimony to come in, in the first place," Kennedy said. "But because of the restrictions he points to, there was never the occasion for the common law to explore the boundaries of the forfeiture exception in the confrontation context."

Before Burkhardt could answer, Scalia interjected again.

"And besides which, the question that Justice Breyer was asking was already answered in Crawford, wasn't it?" he asked.

"Yes, it was," Burkhardt said.

"A case from which he dissented," Scalia said, referring to Breyer.

"That is right," Burkhardt added.

Later Breyer corrected Scalia.

"I joined Crawford, and Justice Scalia would like to kick me off the boat, which

I'm rapidly leaving in any event," Breyer said, drawing laughter from the audience.

Common law

California Deputy State Solicitor Donald E. DeNicola jumped right into the common law discussion.

"I want to start off by correcting the impression that the common law ever stated a rule that intent to tamper was a prerequisite for keeping out the evidence of a victim of a murderer," DeNicola said. "I don't think this Court [has] ever stated such a rule."

Scalia jumped in.

"Why don't you start off by explaining to us why these many cases excluded the dying declaration of the murdered person [if] it could not be shown that the murdered person knew when the declaration was made that he or she was dying?" Scalia asked, referring to the standard for the "dying declaration" hearsay rule exception. "Why even bother with that requirement if it could all come in under [the] the 'absence-of-the-witness' rule?"

"In the dying declaration situation [there] is no validation or vindication of the defendant's cross-examination rights," DeNicola said. "That's what we are interested in here today: How the common law would have treated the cross-examination right of a defendant who killed a witness."

Breyer suggested that sticking to common law principles was not necessarily the best way to decide the case.

"Maybe we shouldn't follow completely the common law as it evolved in evidentiary principles," he said. "Maybe we have to assume an intent to allow the contours of the Confrontation Clause to evolve as the law of evidence itself evolves."

A decision from the Court is expected later this term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com