Wednesday, April 23, 2008

Further thoughts on the Giles argument, from David Salmons

David Salmons of Bingham McCutchen LLP, lead counsel on the DV LEAP amicus brief in Giles, hasalso taken up my invitation to post thoughts on the argument. here they are, without editing by me.


I too attended the argument yesterday in Giles. The Court spent considerable time on the question of whether the common law dying declaration cases preclude California's application of the forfeiture by wrongdoing doctrine in the Giles case. It seems to me the most persuasive reason for why they do not is because the common law treated dying declarations as a special category of evidence, and subjected statements made after a potentially fatal wound had been suffered to particularly exacting standards of reliability. If a purported dying declaration did not satisfy those standards, it was excluded -- not because the admission would violate the confrontation right, but because the statement was insufficiently reliable given the special and dramatic nature of dying declarations and the risks such statements could overly influence the jury. See DV LEAP Amicus Br. at 17. Because dying declarations were a distinct category of evidence with their own rules for admissibility, the common law cases involving statements that do not satisfy the standards for admission as dying declaration do no go on to examine the evidence under the forfeiture doctrine. But that fact tells us nothing about the application of the forfeiture doctrine to cases that do not involve dying declarations. The dying declaration cases simply did not involve the forfeiture by wrongdoing rule at issue in Giles.

But, importantly, while the dying declaration cases are distinguishable, they are also consistent with the forfeiture doctrine adopted by California. The best example of this is
McDaniel v. State, 1847 WL 5865 (Miss. Err. & App. 1847) -- an early American case. After holding that the standards for a dying declaration were satisfied, the Court rejected the defendant's claim that admission of the statement would nonetheless violate his confrontation right, expressly relying on the forfeiture by wrongdoing principle for why confrontation was not violated. McDaniel therefore supports the view that the dying declaration exception incorporates and is consistent with California's view that the forfeiture-by-wrongdoing doctrine satisfies confrontation concerns even outside the traditional witness-tampering context, even though the dying declaration exception also includes additional reliability limitations above and beyond the confrontation right that are not at issue here.


Colin Miller said...

I don't understand the argument that if the forfeiture by wrongdoing doctrine was as broad as California contends, there would have been no need for the forfeiture by wrongdoing doctrine. I can think of several situations where the dying declaration exception would apply to a victim's statements and yet even the "broader" interpretation of the forfeiture by wrongdoing doctrine would not apply. I've posted about this a couple of times:

Am I missing something?

Anonymous said...

Prof. Miller - I believe you are missing something in understanding the nature of Scalia's (and Giles') argument. Giles cited a number of cases in his reply brief in which evidence was excluded for failure to meet the requirements of the dying declaration exception -- and in which forfeiture wasn't even argued -- even though it would have been admitted if California's broad forfeiture rule had been recognized at common law. I.e., the argument is that California is seeking the admission of evidence that was held inadmissible in multiple cases at common law.

Anonymous said...

The idea that dying declarations were a sort of suspect category of evidence requiring "particularly exacting standards" -- such that even forfeiture couldn't justify admission without meeting all the additional dying declaration requirements -- seems odd. The dying declaration doctrine has always been understood as ameliorating hearsay rules, not as making them harder to get past. Is there any evidence of common law cases supporting this "particularly exacting" view - ie, any cases saying post-fatal-wound statements were *harder* to admit than standard hearsay?

Colin Miller said...

Anonymous 5:51, I understand that portion of the argument, but it seems to me that there is another portion of the argument. As was noted in a post below, "Giles’ counsel (Marilyn Burkhardt) gained some traction with an historical argument that was emphasized especially in the amicus brief of the National Association of Criminal Defense Lawyers – that if forfeiture was as broad at the time of the framing of the Sixth Amendment as California contends, there would have been no need for a dying declaration that applied only when the victim believed death was imminent."

This is consistent with the cases I have cited on my blog where courts have concluded that the broader version of the forfeiture by wrongdoing doctrine swallows up the dying declaration exception. See, e.g., People v. Maher, 677 N.E.2d 728, 731 (N.Y. 1997) And I just don't see how that's true.

Anonymous said...

Prof. Miller - I agree with you about the other portion of the argument, but the post you're relying on is inaccurate about what happened at the oral argument -- at least if the transcript of the oral argument is to be believed. The only dying declaration argument that was discussed (and certainly the only one with "traction," as it was Justice Scalia's first question to respondent) was the one outlined in my 5:51 p.m. post.