Thoughts from Joan Meier on the Giles argument

Giles v. California was argued today. I attended, but I've been traveling most of the time since, and it won't be til later tonight or tomorrow that I'll be able to post my reflections on the argument. Meanwhile, I invited Joan Meier, of George Washington Law School and DV LEAP, to offer her thoughts. They are presented below, without editing by me. I'll be happy to post reactions from anybody else who was at the argument, on any side of the issue.

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Today's oral argument in Giles - concerning whether a defendant forfeits his confrontation right by killing the witness for reasons other than to silence her testimony - provided an interesting and frustrating glimpse into the Court's wrestling with the implications of originalism for its confrontation jurisprudence. Several points emerged, for this writer:

1. History does not answer the question presented in this case. Neither side can cite any Framing-era case which addressed the question raised here - of whether a defendant forfeits his right to confrontation under the "forfeiture by wrongdoing" doctrine, when the wrongdoing did not involve intentional witness-tampering. The State does, however, have one case from the mid-18th-century which affirmatively applies forfeiture in such a context (which Petitioner repeatedly fails to acknowledge). Smeade

Petitioner's argument that the fact that the only forfeiture cases in the Framing-era concerned witness-tampering means that those are the only cases we can apply it to today, grossly over-reads history. Merely because the Framing-era courts did not face this problem, and therefore there is no caselaw on it, cannot mean that we, who do face this problem, can do nothing about it.

Petitioner claims incorrectly that the common law courts required specific intent. There is not only no such requirement in the common law forfeiture cases, several of them actually find witness-tampering on facts that barely indicate a causal link to the defendant, let alone a specific intent. But the more important point - on which we can agree - is that framing-era courts seem to have only applied forfeiture in witness-tampering contexts. The question is - what does the absence of other cases (positive or negative) mean? If it was so clear that forfeiture could not apply outside the witness-tampering context, surely there would be a case, or two or three, saying so. In this writer's view, the complete absence of such caselaw indicates something quite different: That framing-era courts simply did not face this problem.

How/why would this be? For three reasons. First, domestic violence was not dealt with as a crime in the Framing-era's legal system. There would thus not be any police reports or comparable reports, of battering prior to domestic homicide. When a wife was murdered, authorities may have suspected the husband, but they would neither have had evidence of prior wife-beating, (certainly not statements to police), nor would they have been likely to have connected the wife-beating to the murder. Even in this country, the connection between wife-beating and murder was not understood until after the OJ Simpson case. At that time, I had conversations with colleagues - who knew me as a domestic violence lawyer - about the Simpson case. They could not understand why this case was of importance to my work on domestic violence. The unspoken and widespread assumption was that domestic violence is about hitting. Murder was different. We may have a better understanding now, but it was not so long ago, that we lacked it.

Returning to the the framing-era, the triviality with which wife-beating was perceived is aptly captured by John Adams' blythe response to his wife's impassioned plea to include some protection for wives in his "new code of laws": "I cannot but laugh... Depend upon it, we know better than to repeal our masculine systems... [we must avoid] the despotism of the petticoat." It is inconceivable that in that culture, courts or prosecutors would have seen a logical or legal link between wife- beating and murder. One was trivial and laughable - the other a serious crime.

A second reason why framing-era courts would not have faced the question of past hearsay presented in this case, is that they also did not face any other types of cases in which a history of criminal behavior might precede a homicide. Those cases are gang cases, drug cases, and mafia cases. Do any of these appear to have historical resonance?

Third, even assaults and threats between men were minimally prosecuted in Framing-era courts. Assault and battery was "for the most part treated as a civil matter between individuals..." Ruth Bloch, The American Revoslution, Wife Beating, and the Emergent Value of Privacy, Early American Studies, Vol. 5, No. 2, Fall 200, pp. 235-236.

In short, framing-era courts did not regularly prosecute assaults or threats, did not have reports of assaults or threats in the legal system, and would not have logically connected past assaults to a murder. They therefore had no occasion to consider whether a df should forfeit his right to confront the witness when he commits prior criminal wrongdoing which causes the witness not to appear. The Petitioner's (and Scalia's) assumption to the contrary simply misconstrues and over- simplifies history in order to draw inferences that are not supportable by the historical evidence.

2. Finally, lacking direct cases, if we wanted to surmise (or "infer," as the Court has suggested) what the Framer's intent might have been on a question like this one, there are at least two reasons to suspect that Framing-era courts would have applied forfeiture in a case like this, had it arisen (if they operated in an evidentiary world like ours, where, unlike theirs, much hearsay is admissible).

(1) The dying declaration cases, as the State's lawyer argued, are actually indicative of the fact that confrontation was forfeited in cases where the df had killed the witness - if the witness' statements met the dying declaration standards. Since dying declarations of other witnesses were not admissible - presumably, because the df's confrontation rights precluded it - it is clear that the admission of dying declarations in cases where the df killed the witness, represents an implicit recognition that confrontation is forfeited in that context.

(2) The children's rape cases - in which the courts routinely admitted children's hearsay before they could be sworn - and even after they began to be sworn, until at least 1788, continued to admit children's hearsay, for "necessity" and fairness, because no other evidence could prove the crime, which was committed behind closed doors, in secret, against a non- testifying victim - are strong support for inferring that Framing-era courts would have been sympathetic to the need to admit a murdered victim's past statements - IF they existed in a world where hearsay was frequently admissible, unlike their own.

J. Scalia, like the Petitioner, seems to believe that prosecutors and courts would have fallen back on forfeiture by wrongdoing in those dying declaration cases, had it been understood as the broad doctrine the State now argues for. Hence, they argue, the dying declaration doctrine would have been totally subsumed by forfeiture and would have been unnecessary. But this is another instance of mistakenly projecting modern norms and practices onto an earlier era. In those common law courts, virtually no hearsay ever came in. Only dying declarations, a narrowly cabined category, were admitted, and only as against the killer. Dying declarations were their own little legal box - because they were seen as unduly powerful and prejudicial - therefore, if a statement did not meet the strict standard, it did not come in. Forfeiture could not supply an independent basis for admitting something that failed to meet that category. Credit for this argument - which he can state far better - goes to David Salmons, the pro bono lawyer on the DV LEAP brief.

3. It seems to me that this case is emblematic of the perils and pitfalls of superficial originalism. In addition to the mistaken assumptions discussed above that fuel the "strict" view of what history "requires" here, some deep fault lines in the new jurisprudence are emerging. Crawford said that evidence standards and constitutional (aka confrontation) standards must be treated as distinct. Crawford also said that we must emulate history, with respect to confrontation standards. But framing-era courts treated confrontation and evidence concerns as merged. The implications of this are undoubtedly variable from case to case, and hard to spin out - and ultimately, in the eye of the beholder. There simply is no definitive, objective, nonarguable "meaning" that can be drawn from an ambiguous history. (Hence we spend untold hours speculating about what the Framers would have thought about something they did not think about.) Originalism of this sort, then, becomes merely a mask for values and policy goals, while disclaiming any such values and policies. I prefer a more honest discussion of policy and constitutional values.