Wednesday, March 26, 2008

Bottom-side briefs in Giles

Today is the deadline for amicus briefs in support of the respondent state in Giles v. California, and they are streaming in. You can read the brief of

the National Association to Prevent the Sexual Abuseof Children's National Child Protection Training Center, by clicking here;

the National Association of Counsel for Children, and the American Profesisonal Society on the Abuse of Children, by clicking here;

Illinois and 36 other states, by clicking here;

the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), California Partnership to End Domestic Violence, Legal Momentum, plus two other organizations and one individual (D. Kelly Weisberg), by clicking here; and, finally,

Richard D. Friedman (i.e., me), by clicking here.

Happy reading!


Anonymous said...
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Anonymous said...

Prof. Friedman,

If, as you contend, forfeiture should not apply if the prosecution had a reasonable opportunity to arrange for confrontation of the declarant, why doesn't the Court have to address that argument in Giles?

In Giles there was an approximately three week period between Avie's testimonial statement and her murder.

Under your so-called "mitigation" requirement, isn't there room for argument that forfeiture should not apply because the prosecution didn't arrange for a deposition of Avie before her murder? If such an argument can be posited, shouldn't the Court remand the case for a determination of this issue -- especially if this issue is, as you assert, dispositive of the forfeiture question? Didn't the Court direct a similar remand in Hammon on the forfeiture question?

I also believe your mitigation argument is without merit. Do you really believe that such a requirement emanates from the traditional dying declartion imminence requirement? There are no Framing-era cases even remotely suggest the forfeiture pre-requisite that you propose.

Anonymous said...

Whether or not "mitigation" is a pre-requisite for forfeiture cannot be addressed in Giles.

Court Rule 14.1(a)states that "[o]nly questions set out in the petition or fairly included therein, will be considered by the Court." Neither the petition filed by Giles or his brief makes any reference to Prof Friedman's "mitigation" argument. Moreover, the Court has stated that questions cannot be "smuggle[d] ... into a case ... after the grant of certiorari" (Norfolk Southern Ry. v. Sorrell, 127 S.Ct. 799, 805 (2007). If a party cannot engaging in such smuggling, certainly amicus cannot do so.

Paul V.

Richard D. Friedman said...

Both of these comments were by Paul Vinegrad – I thought I could tell it was he who wrote the first, and he confirmed it. So in part he has answered one of his own questions. When Hammon as pending, I was careful to avoid the reality and appearance of litigating through the blog. I am just an amicus in Giles, an academic kibitzer, so I don’t mind making some comments outside the briefs, though for my own sanity I’ll have to put some limits on.

(1) As Paul indicates in his second message, the issue of whether the state should have mitigated the problem is not before the Court in Giles. I have not tried to smuggle it in. I do believe that in considering what a sound law of forfeiture is, the Court ought to bear in mind the mitigation idea – just as, in Crawford and Davis, in deciding what the confrontation right meant, the Court felt it appropriate to refer to forfeiture. I believe mitigation will have to be addressed in future cases; I’m just hoping that the Court doesn’t include any dicta that, without actually focusing on the issue, could be interpreted as resolving it.

I’m not sure whether it would make much difference whether the Court simply affirms or remands. Either way, I suppose Giles could try to raise the mitigation issue and either way I suppose it would be open to the California courts to hold that he is procedurally barred.

On the substance, I think the question of whether there is a duty to mitigate in this case – given that the statement was made after a prior incident and before the crime actually charged – is quite a complex one. I wrote about this at considerable length in a posting on December 29, A duty to mitigate with respect to statements made before the crime being charged?, available at

(2) It is true that the framing-era cases do not speak in terms of a duty to mitigate in cases of forfeiture – but then again they do not speak in terms of forfeiture in some cases to which Paul and I think the doctrine should apply. Looking at what they did rather than what they said, I think their decisions were consistent with a forfeiture-and-mitigation doctrine. If a victim made a statement about an attack, the fact that the victim died before trial as a result of the attack would not in itself suffice to justify admission of the statement if it was made outside the presence of the accused. My brief notes several cases in which the accused was in fact brought into the presence of a dying victim for a deposition – and cases in which the absence of the accused from the deposition precluded admission. Only when death appeared imminent did the dying declaration exception kick in, and as I explain in my brief I think “death imminent and perceived to be so” is not too bad a proxy for “too late to take a deposition in the presence of the witness’s killer.”

Yes, I do think mitigation presents a host of complexities. So, too, outside the context of homicide, does the basic forfeiture question – such as, in my view, whether the witness should be deemed unavailable, whether the accused’s wrongdoing was sufficiently serious to qualify for forfeiture, whether the wrongdoing caused the unavailability, and whether that effect was foreseeable. So, too, for that matter, does the question of whether the statement was testimonial. We could avoid all these complexities by throwing away the confrontation right, but we’ve already tried that to a considerable extent and decided it wasn’t the way to go.

The mitigation idea merely says that the state has to act reasonably to preserve as much of the confrontation right as it can. Saying there’s no mitigation requirement would say to the state that, with a useful statement in hand, it can act as unreasonably as it wants while the right dissipates and suffer no adverse consequence. So once it has in hand an accusation made by a victim that it believes is likely to die eventually, it does not have to do anything at all to preserve the possibility of confrontation; unlike the framing era prosecutors, it can simply sit on an ex parte statement, knowing that if the victim dies it can introduce that statement at trial. Or similarly, in the domestic violence context it can claim forfeiture and use an ex parte statement if it recognizes that the witness is unlikely to give her testimony in open court in the presence of the accused – even if, say, the witness would have been willing and able to testify subject to cross-examination by counsel in another setting. I don’t think there’s any justification for letting the state entirely off the hook. I doubt most courts would impose excessive burdens on the state.

Justin Eisele said...

Arkansas Confrontation Clause Case at the Arkansas Supreme Court level:
Seely v. State.