LawyersUSA

The U.S. Supreme Court's decision last week that a murder defendant does not forfeit his right to keep the victim's prior testimonial statements out of evidence unless the defendant killed the victim for the purpose of preventing trial testimony was quickly hailed by defense attorneys as a victory.

"The decision is a welcome affirmation of Crawford," said John Wesley Hall, president-elect of the National Association of Criminal Defense Lawyers, which filed an amicus brief in support of the defendant.

Hall, who practices in Little Rock, Ark., said that the California law at issue in the case was problematic because "any time a defendant was accused of making a witness unavailable, [his or her] out-of-court statements would automatically be admissible."

Somewhat surprisingly, victims' rights advocates say the decision could be a blessing in disguise for prosecutors – particularly those seeking to convict accused domestic abusers.

"Interestingly, [the justices] have really given a leg up to domestic violence prosecutors," said Joan S. Meier, Founder and Executive Director of the Domestic Violence Legal Empowerment & Appeals Project and Professor of Clinical Law at George Washington University Law School. "There is essentially precedent [that] in cases of abuse, there is often sufficient intent to warrant forfeiture" of the right to keep out unconfronted testimony.

Victim's police statement

The case stems from the murder conviction 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 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 establishes 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 he killed his girlfriend for the purpose of making her unavailable at trial.

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 argued that Crawford was inapplicable because Giles lost his Confrontation Clause protection by killing the witness. The state appellate courts affirmed his conviction.

But the Supreme Court reversed and remanded the case.

In a four-justice plurality opinion by Justice Antonin Scalia, the Court held that for a statement to be inadmissible, the defendant must have prevented the witness's availability with the intent of keeping him or her from testifying.

Historically, "the terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying," Scalia wrote.

Further, "[t]he state and the dissent note that common-law authorities justified the wrongful-procurement rule by invoking the maxim that a defendant should not be permitted to benefit from his own wrong. … But as the evidence amply shows, the 'wrong' and the 'evil practices' to which these statements referred was conduct designed to prevent a witness from testifying. … The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury."

Justices David Souter and Ruth Bader Ginsburg concurred in the judgment. Justice Stephen Breyer wrote a dissent joined by Justices John Paul Stevens and Anthony Kennedy.

Bright side for victims' rights?

Despite what seemed like a defense win, the plurality decision and breakdown of concurring opinions gave some prosecutors and victims' rights advocates reason to claim a silver lining.

In the end, the case was remanded to the trial court for a determination of whether there was intent in this case – and if there was, the victim's statement could be admitted.

Also, although Chief Justice John G. Roberts, Jr. and Justices Clarence Thomas and Samuel Alito, Jr. joined the opinion in full, Thomas and Alito filed concurrences casting doubt on whether the testimony at issue in the case was even testimonial – a point not contested by the parties and therefore not considered on the merits.

A finding that this was not a testimonial statement would have eliminated the constitutional question, leaving admission as a matter of state law application of the hearsay exception, said Kent Scheidegger, legal director for the Sacramento-based public interest law group Criminal Justice Legal Foundation.

What's more, a concurrence by Justice David Souter, joined by Justice Ruth Bader Ginsburg, indicated that in domestic violence cases, an inference of intent can be found. That element "would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process," Souter wrote in an opinion that drew hopeful praise from domestic violence legal advocates.

"We have a minimum of three justices who are probably looking to narrow what Scalia has done with testimonial evidence" under Crawford, suggested Meier.

She added that Justice Stephen Breyer's dissent also supported the notion of inferring intent in domestic violence cases and noted the Court's inability to consider whether the victim's statement in this case was even testimonial.

"I think maybe the Court is moving in a direction that could be fabulous for us," she said.

U.S. Supreme Court. Giles v. California, No. 07-6053. June 25, 2008. Lawyers USA No. 99310217. Click here for the full text of this opinion.

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