Sunday, June 29, 2008

Reflections on Giles, Part 2: Is Giles bad for defendants?

On its surface, Giles appears to be a major victory for defendants. I am not sure that will prove to be right over the long run.

1. The Giles test – however it develops – may turn out to be rather easily satisfied.

We’ll have to see over time how the lower courts, and ultimately the Supreme Court, reconcile the various key passages in the majority opinion and in Justice Souter’s concurrence, which reflects the views of two justices crucial for the majority. But I believe that most courts are (as they should be) strongly inclined to admit statements made by a witness who was precluded form testifying in court by the defendant’s own wrongful conduct. (Indeed, most courts are inclined to admit testimonial statements by unavailable witnesses even when that condition, which should justify admissibility, is not present.) So my guess is that a lot of courts will go through a hearing, in which they receive extensive evidence on the nature of domestic violence (including child abuse), emphasizing control by the man over the woman and a desire to isolate her, and then conclude that the best inference is that the accused did indeed act with the purpose to render the witness unavailable. Non-lethal domestic violence that intimidates the witness is the most common context in which the accused might commit serious intentional misconduct that has the predictable consequence of rendering the witness unavailable even though the misconduct was not clearly and primarily directed towards that end. In other words, in the most common context in which the Giles issue will arise, it may be that the Giles test will usually not benefit defendants, but only make for a more extensive process.

2. Giles will encourage a narrow view of what is testimonial.

To the extent that courts do not deem themselves able to find that the Giles test for forfeiture is satisfied, they will have a large temptation to find other ways to secure admissibility of statements made by witnesses who have been rendered unavailable by serious misconduct of the accused. Probably the chief way in which this will happen is that they will give an unduly construction to the term “testimonial” – a construction that will apply beyond the situation in which the accused should arguably be held to have forfeited the confrontation right. We may already see the beginning of this effect in Giles itself. The majority, making the point that its rule has less impact than might be supposed, points out (correctly) that the rule matters only with respect to testimonial statements – and then it casually tosses off a dictum that statements to treating physicians are not testimonial. Whoa!! That’s a significant issue, one very much in dispute. I don’t think the fact that the audience of a statement is a physician who is treating the declarant should be enough in itself to cause the statement to be characterized as non-testimonial. It may be, for example, that the declarant and the physician know full well that the physician is under a legal and professional obligation to pass on to the authorities any accusation of serious crime that the declarant makes. If such statements are deemed non-testimonial, then we have created a system by which a witness can self-consciously create narrative evidence for trial by speaking to a physician who has some therapeutic purpose in meeting with her. The Court’s dictum on this point should not settle the matter, but it does suggest how an unduly narrow view of forfeiture might contribute to an unduly narrow view of “testimonial” – which may be a consequence of far greater importance.

3. Giles will encourage overly broad applications of the dying declaration exception.

Another means of evading Giles will be to stretch the dying declaration exception beyond its appropriate bounds. We have already seen this, in the Jensen case, discussed in a prior post. This case has reached some notoriety – Julie Jensen, afraid that her husband Mark might poison her, left a note indicating that if she should die unexpectedly suspicion should be cast on Mark. The trial judge, explicitly anticipating the outcome in Giles, held the note to be a dying declaration. I believe this is a rather outlandish application of the dying declaration doctrine – Julie did not believe herself on the verge of death when she wrote the note – but it may become typical under Giles.

4. Creation of a doctrine of mitigation will be much more difficult under Giles.

An important means of limiting forfeiture doctrine would be adoption of a strong doctrine of mitigation – that is, a set of rules governing steps that the state must take in given circumstances to preserve the confrontation right of the accused to the extent reasonably possible notwithstanding the accused’s wrongful conduct. For example, if the wrongful conduct is murdering the witness, who while dying made a testimonial statement, then mitigation doctrine would require the state, as a precondition to invoking forfeiture doctrine, to offer the accused an opportunity to take the witness’s deposition, so long as there was a practical, humane opportunity to do so. If the wrongful conduct is intimidation, a mitigation requirement might require the state to make certain efforts to ascertain the extent to which confrontation might be preserved; for example, the state might be required to bring the witness to chambers to explore whether she might be willing to testify there, subject to cross-examination by counsel. Procedural rules of this sort would, I believe, be less easily avoided than substantive standards that a judge could manipulate around; if the procedural requirement is applicable, courts will just have to satisfy it.

Giles makes it considerably more difficult to achieve a strong mitigation doctrine. Had the Court adopted the historical theory of forfeiture that I have presented, in which dying declaration cases are seen as a manifestation of forfeiture doctrine confined by a mitigation requirement, then necessarily the Court would have made at least the start of adopting such a requirement. But Giles provides no momentum for creation of such a requirement. That does not mean the Court will not adopt one – I still think it should – but now it will be a much harder sell.

5. Giles takes away a basis for challenging Owens.

One unfortunate aspect of modern Confrontation Clause doctrine is the rule of United States v. Owens, that the Clause is satisfied so long as the witness who made the statement testifies at trial, even if the witness does not remember the underlying facts. In this situation, the ability of the accused to cross-examine the witness is seriously undermined, a factor that the Owens Court did not recognize. Owens itself could be explained on the basis of forfeiture, if there were no purpose requirement attached to forfeiture doctrine; the reason the witness there could not remember the underlying facts was that the accused had bashed his head in. But I do not believe the Giles standard could be satisfied in the Owens situation; there is no indication that the accused bashed the witness’s head in for the purpose of rendering the witness unavailable to testify at trial; it was the bashing itself for which Owens was tried.

6. Giles undermines the general theory of the Confrontation Clause.

In my immediately prior post, I pointed out that, if Giles had come out the other way, it would be possible to enunciate a theory of the Confrontation Clause under which there are no exceptions to it. Forfeiture, like waiver, is not really an exception to the right, but a factor causing estoppel against exercise of the right. Under Giles, though, the Clause is clearly subject not only to forfeiture but also to an exception for dying declarations – statements by a murder victim explaining the cause of apparently imminent death. And what is the justification for that exception? The Court states none other than that the exception existed at the time of the Framing. The rationale traditionally given for the exception is principally a reliability one – that the prospect of imminent death guarantees trustworthiness of the statement. But one of the essential propositions of Crawford was that reliability of a testimonial statement, or a category of statements, is not a ground for admitting it absent an opportunity for cross-examination. The Court has therefore complicated and undermined the general theory of the Clause, and that will likely make it less robust – because more complicated, less easily understood, and less rational – in the long run.


Joan Meier said...

Rich's comments are extremely well put and convincing. I particularly agree with his critique of this kind of slavish "originalism" - which is unmoored from reason or consistency.

I also have written elsewhere, as Rich does here, that a close analysis of these opinions suggests that there is much for the State to work with in domestic violence cases. Not only does Scalia acknowledge that a battering history is often bound up with silencing and isolating the victim, the Souter concurrence goes further and seems to imply a presumption that a history of battering is equivalent to that kind of silencing and isolating. This will obviously be debated in cases to come - but the concurrence's language is far stronger than Scalia's. And it is THIS opinion that is dispositive on this issue. Without the concurrence Scalia lacked a majority. Moreover, the three dissenters signed onto the Souter analysis, thereby making five votes for an almost-presumption that a history of "classic abuse" constitutes grounds for forfeiture where the victim does not testify (either bec she is dead, or absent).

The one element of Rich's analysis and theory I take issue with - as he knows - is the idea that the State should be required to "mitigate" by taking a deposition after a fatal attack, so long as it can be done "humanely." There may be cases where that is ok, and the victim even wants to make the statement, but what does it suggest about cross-examination? Can it ever be humane to have a person dying from a fatal attack cross-examined by an advocate for the attacker?

Moreover, of course, the idea that the State will be able to "mitigate" by getting depositions and cross-examinations of intimidated and avoidant/non-cooperative witnesses is implausible. In the non-murder cases, where the victim can vote with her feet, it is hard to imagine the State managing to get these depositions and cross-examinations arranged - and it is virtually inconceivable that a victim who is reluctant to testify would be any less reluctant to participate in a deposition and cross-x. Moreover, the State simply does not have resources to be deposing every battered woman whose call to the police results in an arrest.

Finally, as co-author of one of the two domestic violence amicus briefs, I am quite thrilled to see that the Supreme Court seems to have acquired a sophisticated understanding of domestic violence. For instance, the discussion of the silencing and isolating that batterers inflict on victims means the Court now understands that battering is not mere hitting, not mere "incidents" and not mere "crimes," but a pattern of power and control with many insidious dynamics. This is a huge step forward.

Joan Meier, Professor of Clinical Law, George Washington University Law School, and Director, Domestic Violence Legal Empowerment and Appeals Project

Richard D. Friedman said...

Thanks for the comment, Joan. She asks, "Can it ever be humane to have a person dying from a fatal attack cross-examined by an advocate for the attacker?" Well, why not? It was standard practice during the Framing era to take a deposition of the victim in the presence of the accused, even though the victim was dying. It remains standard practice for law enforcement agents to question a dying victim -- up to the moment of death, if need be. I think there is room in some cases to allow a deposition of a victim who might eventually die of her wounds.

In the context of intimidation, what a mitigation doctrine would require would depend on the facts of the case. The burden on the state would be to make reasonable efforts to preserve as much of the confrontation right as possible. That might consist of bringing the complainant to court and exploring the possibility whether she would testify without the accused in the room. I think prosecution of domestic violence would be improved greatly if the state did what it could to arrange for prompt confrontation -- and if the state were under a legal imperative to try the funds would become available.

Anonymous said...

I disagree with Joan that the Souter opinion is stronger in regards to DV. Outside of the "classic" DV context, there rarely is a "pattern" of violence and isolation. There is no such pattern developed on the record in Giles. In fact, Scalia's majority opinion is stronger because it does not require any such pattern.

This is why I think that Giles is now a free man. Based upon the underlying facts of the case, there is nothing that has been developed on the record that fits the Souter test. There is enough information to fit the Scalia test.

Anonymous said...

I hate to leave a rather belated response, but I simply cannot see how your third comment says anything about Giles that cannot be said about a multitude of other decisions as well. After all, couldn't it be argued that the California Supreme Court's decision in Giles was an attempt to circumvent Crawford and Davis? And wouldn't that mean that Crawford and Davis are "bad for defendants" as well?

Every decision by a high court is going to result, as it seems to have in the Jensen district court ruling, in some push-back from lower courts unhappily bound by the rule set forth in that decision. Such push-back says very little about the quality of the rule, however, but says a great deal about the quality of the judges doing the push-back.