Wednesday, February 20, 2008

Petitioner's brief in Giles filed

Here is the brief of the petitioner, the first brief on the merits before the Supreme Court in Giles v. California, No. 07-6053, reviewing People v. Giles, No. S129852, 40 Cal.4th 833, 152 P.3d 433 (Cal. 2007), the case presenting the issue of whether the accused can forfeit the confrontation right with respect to a witness by killing her, even if he did not do so for the purpose of rendering her unavailable as a witness. I will post amicus briefs as I receive them. The brief of respondent is due on March 19 and those of supporting amici on March 26.


Anonymous said...

Do you have any thought on this case:;_ylt=AgRFlYUL_7lNjq_BB9EVBRqs0NUE

The fact pattern is different than Giles and I wonder if it makes any difference. In Giles, what is at stake is intention. Here, it is not clear that the defendent was involved in the crime at all.

Curious to your thoughts as to the difference between the two cases and how the SC might look at them differently.

Richard D. Friedman said...

This is the Jensen case from Wisconsin. It is one of those, like the recent Sanchez case from Montana, in which the eventual murder victim, anticipating that she might be killed, leaves a communication saying in effect, "If anything happens to me . . . " I think the statement was testimonial, but if the court is persuaded to the requisite degree of confidence that the accused killed the victim without justification, he should be held to have forfeited the confrontation right. In Giles, the statement was also a testimonial one made before the killing. There, it was clear that the accused killed the victim, but he contended he acted in self-defense. I don't think this difference is significant; in neither`case could there be forfeiture unless the court concluded that the accused killed the victim without justification. Whether there can be forfeiture without proof that the motivating purpose for killing the victim was to render her unavailable as a witness -- I believe there can be -- is the issue to be decided in Giles.