Wednesday, June 25, 2008

Giles vacated and remanded

The Supreme Court decided Giles v. California today. You can see the opinion by clicking here. Giles won; the decision is vacated and remanded, and the forfeiture theory does not apply. I have not had time yet to read the opinion, and so can't say much more (except that I think this is a veyr unfortunate result), but I will add more later, probably later in the day.


Anonymous said...

"The only thing saving
admissibility and liability determinations from question
begging would be (in a jury case) the distinct functions of
judge and jury: judges would find by a preponderance of evidence that the defendant killed (and so would admit the
testimonial statement), while the jury could so find only
on proof beyond a reasonable doubt. Equity demands
something more than this near circularity before the right
to confrontation is forfeited, and more is supplied by showing
intent to prevent the witness from testifying."

The very idea that that you said was not even relevant to the case, the inherent circularity or self-reflexiveness of the situation was in fact the deciding factor that got Souter's and Ginsberg vote.

Richard D. Friedman said...

So it appears. And I think this is very mushy thinking on the part of these two justices. They recognize that it is not in fact circular -- the judge and jury have different functions. It so happens that they have to determine the same fact for those two functions. Why does equity demand more here? Does it demand more when the state proves a conspiracy case by persuading the judge that a statement should come in against the accused on the grounds that he committed conspiracy?

The petitioner and its supporting amicus, NACDL, went very lightly on this point, probably because they realized its difficulty -- circularity was not the question presented by the petition. But it gave them two crucial votes, and left the law in an unfortunate state. So it goes.

Anonymous said...

Prof. Friedman -

What do you think about Justice Souter's "inferred intent" test -- a test that appears to be embraced by at least four of his colleagues?

It appears that all members of the Court would deem informal statements to private parties nontestimonial. (see Slip Opinion p. 22, concurring opinions, and p. 9 of the dissent.)

Thus, we seem to left with a narrow concept of "testimonial" and a narrow forfeiture rule -- assuming the "inferred intent" formulation doesn't have much elasticity outside of the domestic violence context.

Richard D. Friedman said...

I think Souter's test is very ambiguous, especially given that he joined most of Scalia's opinion. I suspect what it will mean is that many courts -- and perhaps even in this case -- will go through a procedure in which they will hear evidence about domestic violence and the pattern in the aprticular case and will conclude that the defendant had sufficient intent to satisfy whatever standard governs (Souter, Ginsburg, plus the three dissenters). But we won't have the
clarity -- moral or doctrinal -- that we should have had.

Scalia's rather casual endorsement of the idea that statements to treating physicians are non-testimonial is indicative, I think, that the narrow forfeiture doctrine will induce courts to treat "testimonial" narrowly -- but you're right, Breyer at least tentatively seems to think the same. I believe that a statement to a physician accusing another of a crime should be testimonial at least when the speaker understands that the physician is going to pass the accusation along to the authorities.

Mike said...

I agree with 4:19, pp. 22 and 23 of the text look like a clue Scalia has left for the next decision (like the statement in Davis that FRE 804(b)(6) codified the common law foreshadowed Giles), that only statements made to police officials or the like will be considered testimonial and thus covered by the confrontation clause.

If statements to friends or doctors are not covered, that suggests that the declarant's intent is irrelevant, for the reasons Prof. Friedman points out at 4:32 (if declarant's intent does matter, can't categorically exclude). This suggests that the only question is whether the objective facts indicate that the primary purpose of the public official taking the statement is to establish or prove past events potentially relevant to later criminal prosecution (Davis 126 S. Ct. at 2273-74)

This would have the virtue of simplifying the analysis, as there would be no question as to objective/subjective intent of the declarant (or the declarant's intent at all); the problem of how to evaluate statements by child declarants would thus disappear as well. Clarity, yes, but at the price of shrinking the Confrontation Clause as much as Crawford originally enlarged it--moreso.

Sure looks to me like that's where we are headed, however.

Anonymous said...

I agree with the Professor on that score; the inferred intent test is ambiguous. I just don't find this lack of clarity too troublesome. There is squabbling between Scalia, Souter, and Kennedy, over the exact nature of what counts as evidence for intent. But I am comfortable with the overriding sense from the majority opinions that this should be a fact-bound inquiry.

As for the issue of narrowing the definition of what is testimonial, I think people are making too much it. Everyone concedes that issue is not before the court and thus comments are dicta. Dicta never has been a good indication of where the SC is going to go, especially in light of the fact that the new president is likely to have as many as three new appointees.

pam said...

I have an issue that gives me a great deal of concern. I currently represent a person accused of domestic violence - the spouse told the treating doctor that her husband hit her and broke her nose. She now has a lawyer and wants to take the fifth. The State says that the statement to the doctor is "not hearsay" and is sufficient to convict.
What bothers me is the implicit rationale that because this is not a statement made to an officer it is not testimonial and therefore not covered by the right to confrontation. Am I just confused or am I missing something here?
I initially thought this opinion would help us but after reading it I am not sure it helps at all.

Richard D. Friedman said...

I think this is an illustration of why narrowing forfeiture doctrine may end up in narrowing the underlying right itself. Wrong way to go on both counts, I think.

Anonymous said...


Is the state saying that the statement to the doctor:

1) Is not testimonial?
2) Is not hearsay?; or
3) Is hearsay but falls within an exception to the hearsay rule? (For example, the statement was made for purposes of medical diagnosis or treatment?)

And what do you mean she wants to take the 5th? Are you really saying that she's not going to take the stand because she's worried her statements will incriminate her in some other crime? Or do you mean that she's going to assert a spousal or marital communications privilege?

I ask all of this because I can't tell from your post.

pam said...

The State is arguing that the statement is an exception based upon the "statements for medical diagnosis and treatment", also argues not testimonial as she was not talking to a cop and statement not made with knowledge that it would be used in court.
I have not personally spoken to her. Her lawyer tells me she is taking the fifth because there is a potential that she may through testifying expose herself to criminal prosecution. I am assuming that this indicates she either lied about how happened or lied to the cops about her behavior - my guy claims self defense but nothing to date would support his assertion until I found out she is determined to take the fifth.
Does that help?

Anonymous said...

It does.

From what you've described, it sounds like the statement is nontestimonial, so the Confrontation Clause doesn't even apply. There's going to have to be more state involvement or contemplation of prosecution that you've described.

As for the hearsay exception issue, you'll need to check your jurisdiction's law, but my understanding is that most courts consider these sorts of statements admissible under 803(4) (or the state equivalent) because they are statements about causation "reasonably pertinent to diagnosis or treatment."

Since you can't ask for an adverse inference based on her taking the Fifth, your best bet may be to ask the statement to be excluded on Rule 403 grounds. My bet would be that most cases letting these sorts of things in under 803(4) involve spouses who merely refuse to testify, have fled the jurisdiction, or are dead rather than spouses than have specifically chosen to take the Fifth.

pam said...

Thank you so much. I have given this much thought and I feel so inadequate but I am grateful that your insight parallels my own thoughts. Today's opinion does not really give me much help but I suspect that if I argue that there is no underlying indicia of reliability and that the question of who did what is really not necessary to diagnosis or treatment and is therefore not within the exception, then maybe I may be able to keep it out. I add that to the argument that since she is taking the fifth it is prima facie evidence that it was not true - and as such should hold no probative value, along with the 401, 403 and 404 objections may help my client if he is convicted. I suspect those of you who post here who are much smarter than I will be able to tell me how I am missing the point or even better, tell me how I can protect my client's rights. Thank you all for the responses.

Anonymous said...


I would not so easily assume the statements are non-testimonial. Despite Scalia's dicta, this is FAR from a settled question, and the court will hear arguments in the fall on a related issue that may provide clarity. By all means you should argue vigorously that the Sixth Amendment DOES apply and that such statement should be excluded. Not only should you, but this is your obligation.

Anonymous said...

Different annoy here.

Pam. I quite agree with the advice you have been given; it's sound.

(1) argue that it's testimonial.
(2) argue that even if it's not testimonial, it should be excluded because it's not necessary to know *who* did the deed to decide a course of treatment.

I don't think either argument is a "gimme" for your case but it's the case you need to make and then let the judge do his job and decide.

Anonymous said...

It would be beyond foolhardy not to vigorously argue the Sixth Amendment issue. If you are the suppression/trial stage, not raising could/would be tantamount to waiving the issue. Read the briefs in the case set for argument next fall, as well as the numerous Circuit/State SCT cases that have grappled with the issue, and also read R.Friedman's many articles on the topic, and put together a coherent argument.

Anonymous said...

Another anon. here.

Pam -- I agree 100% with the advice you've already received, esp. pt. 2 from 12:45. Identity of the actor was likely unnecessary to diagnosis and treatment. Prosecutors will counter, perhaps unsuccessfully, that the doctor had some resp. to ask the question if he suspected abuse.

I have a few other questions, perhaps for Prof. Friedman:

1) What evidentiary standard must prosecutors satisfy in the threshold forfeiture determination? The majority's endorsement of 804(b)(6) as codifying forfeiture doctrine both here and in Davis implies preponderance, per 104. Justice Souter also mentions a preponderance standard.

2) May prosecutors use the statement to be admitted in an effort to satisfy that standard? As Justice Scalia noted, "The evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify." What happens when there is no other ongoing criminal proceeding, and the only evidence of the abusive relationship is the single testimonial statement (the same statement to be admitted under forfeiture doctrine)? I would think the answer should be this: Even if prosecutors can use the statement, the statement alone wouldn’t satisfy even a preponderance standard.

Pam said...

I cannot tell you all how much I appreciate your comments. I agree every issue must be argued and not waived because you never know what is going to happen next.

I keep asking for a reasonable doubt definition instruction in Texas (something they did away with several years ago but I know if we keep makeing the record and objecting, it will come back)!

I love Professor Friedman's work and reread it every so often, as it applies to trial issues, because he keeps me honest and through.

Thank you all for the challenge and the advice. Your willingness to take time and give me thoughtful insights helps me do a better job for all of my clients.