Giles v. California

This murder case from CA probes an issue left over from the Court's significant 2004 Crawford decision (541 US 36 (2004)). In that case the Court concluded that in almost all instances, unless there was a narrow exception that applied, the 6th Amendment required that a defendant be able to confront his accuser in open court. The issue that most was affected by the Crawford decision were videotaped testimonies from childhood victims of sexual abuse or from distraught and scared girl-friends (primarily), who would be unable to testify to what happened to them in open court and then deal with the consequences of withering cross-examination.

But even after Crawford a few exceptions to confrontation existed. One of these exceptions, the so-called "forfeiture by wrongdoing," is an equitable principle by which the defendant forfeits the right to object to the admission of out-of-court statements of a witness whose unavailability the defendant caused. In this case, the lower courts held that Mr. Giles, by murdering his girlfriend, forfeited the ability to object to the introduction at trial of his murdered ex-girlfriend's story to police a few weeks before her death that Mr. Giles had abused her. Mr. Giles' lawyers argue, however, that even though the "forfeiture by wrongdoing" exception was preserved by Crawford, that it is triggered not merely by showing that the defendant has caused the unavailability of a witness, as some courts have said (i.e., the CA courts) but that there must be an additional showing that the defendant's actions were undertaken for the purpose of preventing the witness from testifying, as other courts have said. Let's put some flesh and bones on this question by reciting a few facts from this sad case.

Relevant Facts

Here are the relevant facts, taken from the Petition for a Writ of Certiorari, from a Sept. 5, 2002 incident:

"The prosecution, in its case-in-chief and over petitioner's objection, presented the testimony of a Los Angeles police officer who interviewed Brenda Avie on September 5, 2002 about an assault by petitioner (i.e., Giles). The officer testified that he and his partner went to an address in Los Angeles County on September 5, 2002. Petitioner answered the door, apparently agitated. Avie was sitting on the bed, crying. The officer interviewed Avie while his partner interviewed petitioner separately. Avie told the officer that she had been talking on the phone with a female friend when her boyfriend, petitioner, got angry with her and accused her of having an affair with the friend. Avie ended the phone call and argued with petitioner. He lifted her off the floor, put her down, and choked her. She broke free and fell to the floor. He climbed on top of her and punched her face and head. She broke free and crawled onto the bed. Then he opened the blade of a folding knife, held it about three feet from her, and said, “If I catch you fucking around I'll kill you.” The officer didn't see any physical marks on her but felt a bump on her head.

The trial court admitted the evidence under California Evidence Code section 1109, which permits the admission of evidence of prior acts of domestic violence to prove the defendant has a propensity to commit acts of domestic violence, and California Evidence Code section 1370, which establishes a hearsay exception for certain out-of-court statements describing the infliction of physical injury on the declarant when the declarant is unavailable to testify at trial and the statements are trustworthy. People v. Giles, supra, 19 Cal.Rptr.3d at 846.

The testimonial hearsay about the prior assault also permitted the trial court to instruct the jury that if the jury found that he had committed a prior offense involving domestic violence, the jury may infer that he “had a disposition to commit another offense involving domestic violence” and to further infer that he was “likely to commit and did commit” the charged murder."

A little over three weeks later, on Sept. 29, 2002, Giles murdered Avie at his home. The murder itself isn't in question. But Giles claimed self-defense at trial. He said that she was volatile and had a history of violence, particularly when she was jealous. The judge, nevertheless, admitted the Sept. 5 police report and the jury convicted petitioner of murder. The Court of Appeal affirmed the judgment of conviction in Oct. 2004. The court specifically rejected petitioner's argument that the admission of Avie's hearsay statements (hearsay because she was unavailable at trial and could not be cross-examined) to the officer violated his 6th Amendment right of confrontation under Crawford. According to the court he lost his confrontation rights even though there was no evidence he killed Avie for the purpose of preventing her testimony at some future trial.

The CA Supreme Court affirmed and concluded that the forfeiture rule does not contain an "intent-to-silence" element, 153 P3d 435 (2007). Rather, it found that "wrongfully causing one's own inability to cross-examine is what lies at the core of the forfeiture rule." In making its determination, the CA Supreme Court relied on the 1879 Reynolds case of the US Supreme Court (polygamy; 98 US 145 (1879)) to justify its holding that intent to silence is not an element of the forfeiture rule. Although the court acknowledged that the facts of Reynolds involved witness tampering, the court found that Reynolds described "the rule without reference to a defendant's motivation." Here is the CA court's essential conclusion:

"Although courts have traditionally applied the forfeiture rule to witness tampering cases, forfeiture principles can and should logically and equitably be extended to other types of cases in which an intent-to-silence element is missing. As the Court of Appeal here stated, “Forfeiture is a logical extension of the equitable principle that no person should benefit from his own wrongful acts. A defendant whose intentional criminal act renders a witness unavailable for trial benefits from his crime if he can use the witness's unavailability to exclude damaging hearsay statements by the-witness that would otherwise be admissible. This is so whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable."

At the Supreme Court

Thus the Court has a relatively simple question to answer:

"Does a criminal defendant “forfeit” his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant's actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?"

I don't think that Mr. Giles has a chance at reversal before this Court.

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