Reflections on the historical discussion at the Giles argument

I attended the argument in Giles v. California yesterday. The question, for those who have not been following closely, is whether an accused forfeits the confrontation right by murdering a witness, even though he did not do so for the purpose of rendering her unavailable as a witness. I think the answer is clearly affirmative – but now we will have to wait to see what the Court does. I present below a first set of my reflections on the argument. I will follow up tomorrow with some other reactions. I will also post links to the transcript and to the oral recording when they become available.

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. Don DeNicola, for the state, attempted to respond that forfeiture addressed the confrontation concern, and there was a separate hearsay obstacle addressed by the dying declaration exception. But in response to questioning, he pretty much admitted that this was an anachronistic view, because there was no sharp distinction then between a body of confrontation law and one of hearsay law.

One possible response, of course, is to play down the importance of framing era history. Justice Breyer suggested this approach – to the predictable opposition of Justice Scalia (who mistakenly said that Justice Breyer dissented in Crawford). Justice Breyer suggested various respects in which the law of testimony has changed since the framing era, and wondered whether these were binding today. A problem pointed out by Justice Scalia is that these rules – all rules of incompetency, if I heard right – didn’t have much to do with the confrontation right. Nevertheless, it will be interesting to see to what extent the Court feels it is free to decide the case on some basis other than asking what a 1791 court would do in similar circumstances. My own view is that Crawford gained great power by showing that its fundamental conception of the confrontation right was consistent with practice not only at the framing era but for many years before and even after – but when we get down to more detailed issues that the text of the Confrontation Clause does not address the search for historical guidance becomes much less significant.

Having said that, I believe that Giles’ historical argument can be met effectively on its own terms. I was not surprised that the state did not raise what I believe to be the best answer to that historical argument (not coincidentally, the answer I presented in my amicus brief), because that answer involves recognition that the state has an obligation, if it wishes to invoke forfeiture doctrine, to do what it reasonably can to preserve the confrontation right. I’ll summarize my view briefly here.

Suppose in the framing era a defendant cast a fatal blow but the victim lingered for some time in a communicative state. If the authorities took a deposition of the victim, standard practice was to conduct the examination in the presence of the accused – and if the accused was not present, the deposition could not be admitted against the accused, even though the victim later died and so was obviously unavailable to testify at trial. But if the victim was aware of impending death when she made the statement, then absence of the accused was excused. Now of course the rationale usually given for the impending death cases was that the imminence of death was a guarantee of reliability akin to an oath. But the results reflect these principles:

1. Even though a victim may be dying, the authorities must, subject to proposition 2 immediately below, do what they reasonably can to preserve the confrontation right.

2. If the victim is aware that death is imminent, then the obligation to preserve the confrontation right does not apply.

And the most sensible rationale for this pair of principles is that the accused forfeits the confrontation right by murdering the witness, but only to the extent that the right cannot be reasonably preserved – and the point at which the victim is aware of the imminence of death marks the point at which, at least in the framing era, it was no longer deemed feasible and humane to examine the witness subject to confrontation.

In Crawford, Justice Scalia crafted a doctrine that adhered to the results of most of the precedents even though not their rationales; even to a strict originalist, it should not be terribly upsetting to do the same with respect to framing-era cases.

Justice Scalia asked Mr. DeNicola whether he had even one framing-era case in which a court had held the confrontation right forfeited in the absence of a demonstrated purpose to render the witness unavailable. Mr. DeNicola gave one important response – there are no cases clearly holding the other way, and the principle guiding forfeiture is broad enough to apply even in the absence of such a purpose. But I think he also could have given another, more satisfying response: “Yes, there are many such cases in which the accused murdered the victim, who made a statement shortly before dying, in circumstances that did not feasibly and humanely allow for confrontation. They are called dying declaration cases, and the rationale then given was that the statements were reliable, but the more persuasive rationale, the one that fits better with Crawford, is is that these were really instances of forfeiture.”