Reply brief in Giles filed (updated April 12)

The petitioner in Giles filed his reply brief on Thursday. You can read it by clicking here. I believe this brief leaves intact the main arguments I made in my amicus brief. I just want to emphasize three points here.

1. My basic historical argument is this: (1) The traditional doctrine admitting certain dying declarations is best viewed as an implementation of forfeiture doctrine (though it was rarely articulated that way in the framing era) – a doctrine that applies if serious misconduct by the accused foreseeably rendered the witness unavailable, whether or not that was the purpose of the misconduct. (2) The traditional rule limiting the dying declaration exception to statements made when death appeared imminent to the victim, on which Giles puts great weight, is best viewed as a reflection of a rule that to invoke forfeiture doctrine the state must act reasonably to mitigate the loss of the confrontation right. I do not believe Giles offers any resistance to this view.

Even though a framing-era victim may have been dying, it was standard practice to examine her in the presence of the accused; if the accused was not present, the deposition generally could not be admitted. Only if the victim was aware that death was imminent was the accused’s presence excused. I believe that this well-established practice is entirely consistent with the doctrinal resolution that I recommend – that the accused forfeits the confrontation right if the witness is unavailable as a foreseeable consequence of the accused’s serious wrongful conduct, but that the forfeiture does not apply to the extent reasonable conduct by the state could have preserved the right. Thus, the fact that an assault victim eventually dies means that the accused forfeits the right to be confronted with her at trial – but it should not mean that he forfeits the right to be confronted with her at a deposition, if there was ample opportunity to hold one before the victim died. When is there an adequate opportunity for the state to offer a deposition? That, I believe, should be a matter of judgment on all the circumstances. But if the victim is aware of imminent death, that might be regarded as a pretty good indication that it is no longer civil and humane to make her confront the accused.

2. A case fitting the mold of Giles – in which the ultimate murder victim made a testimonial statement after an earlier, non-fatal incident – is probable only when there is a continuing relationship between the accused and the victim. But non-lethal domestic violence was not generally prosecuted in the framing era, and for many years afterwards, so there would be little occasion for a victim of a non-lethal assault to make a testimonial statement. Giles contends that “there surely were many incidents in which a homicide victim, prior to the fatal attack, had previously reported threats made by the killer in the course of seeking help from a relative, neighbor, local vicar, or even local constable . . . .” Reply Brief at 6. But what is most striking is that Giles does not cite any such case. Perhaps there were occasional cases of this sort (and if there were, under the doctrine of Davis v. Washington, 547 U.S. 813 (2006), some of the statements would not be considered testimonial), but there was obviously no settled practice governing it. Even if one is inclined to give primacy to framing-era practice – and the weight to be attached to it should be diminished given that forfeiture doctrine is not rooted in the language of the Constitution – in this setting there was no well-established practice that should control this case.

3. It is very easy for an advocate to take pot shots at an academic who takes a contrary point of view. But both Giles and the NACDL are very gracious to me in their briefs, and I appreciate that.