Reflections on Giles, Part 1: History, Dying Declarations, and Forfeiture

As readers of this blog will recognize, I am obviously very disappointed by the result in Giles. It has unfortunate consequences for the theory of the Confrontation Clause. It will complicate litigation. And it will lead to some bad results – though to what extent it will do so is unclear, depending on how some language in the Scalia and Souter opinions is applied.

It’s going to take me a while to write out all my comments, so I will post them in pieces.

Justice Scalia’s opinion, which except for one section is an opinion for the Court, is overwhelmingly historical. For the most part, it adopts the argument put forward in the amicus brief of the National Association of Criminal Defense Lawyers, written by his former clerk Robert Kry. The basic argument is this: At the time of the Framing, there were two separate doctrines, one for dying declarations and one for forfeiture. (1) The dying declaration exception does not apply because the statement in question was not made while death was, or appeared to be, imminent. (2) (a) The language used to describe the forfeiture doctrine suggests it was limited to situations in which the defendant took actions designed to prevent the witness from testifying, (b) No cases applied the doctrine absent that condition. (c) There were many murder cases in which that condition was not satisfied, and the statement was not admitted unless it satisfied the dying declaration exception. (d) Until relatively recently forfeiture doctrine was not applied absent that condition.

I have offered, in my amicus brief and in a prior posting on this blog, an argument that I believe completely and adequately responds to this line of reasoning. The state did not endorse it, presumably because it did not like the long-term implications. Justice Scalia never addressed the argument. Briefly, the argument is this:

The dying declaration exception should be regarded as a manifestation of forfeiture doctrine, limited by the principle that the state cannot invoke forfeiture doctrine if it has not taken advantage of reasonable opportunities to preserve the confrontation right in whole or in part. When a lingering murder victim made an accusatory statement, it was standard practice to bring the accused to the victim, and take the victim’s testimony, under oath and in the presence of the accused. If the testimony of such a victim was taken without the presence of the accused, it would not be admitted. But if the victim was, and appeared to be, on death’s door, then the testimony of the victim could be admitted even though the accused was not present. So the results of these cases are in accord with the following principles:

(1) The accused forfeits the confrontation right with respect to testimonial statements by the victim by murdering her.

(2) Notwithstanding (1), if the state can reasonably arrange for testimony by the victim subject to confrontation, but it does not do so, then it cannot invoke forfeiture doctrine.

(3) If death is, or appears to be, imminent, then it is no longer reasonably practical and humane to provide for testimony subject to confrontation, and so the absence of confrontation is excused.

I don’t believe a single one of the old cases cited in the course of briefing and arguing Giles is inconsistent with this set of principles. In a case in which the victim makes the statement at issue after the fatal blow, but the accused has had no opportunity for confrontation, then principle (2) would prevent admission of the statement unless the circumstances satisfying principle (3) are present. But Giles fits a different mold. In cases like Giles, the victim makes a testimonial statement against the accused before the crime being charged, and then is murdered; in Giles, there was no opportunity after the fatal blow to arrange for confrontation. Cases fitting that mold apparently didn’t arise in the Framing era – none of the litigants or amici cited such a case. The reason is simple. Domestic violence short of death generally wasn’t prosecuted. A victim of domestic violence who was not likely to die as a result of the wounds already suffered had no occasion to make a testimonial statement of the type that Brenda Avie, Giles’s victim, did. There is really no basis for saying that if such cases did arise, the courts would have excluded the evidence on the basis of the defendant’s argument that he had no chance to be confronted with the witness. The principles I have enunciated suggest that courts would have admitted the evidence. Certainly there was no settled practice of exclusion.

Note the appealing structure of Confrontation Clause doctrine that can emerge from the principles that I have enunciated: The accused forfeits the confrontation right if he commits serious misconduct that can be reasonably expected to, and does, cause the unavailability of the witness. But the accused should not be deemed to have caused that unavailability to the extent that the state could, by reasonable measures, preserve confrontation notwithstanding the accused’s wrongdoing. Putting aside waiver and forfeiture – not really exceptions to the right, but rather qualifications on its exercise, ones that apply to other Sixth Amendment rights as well – there are no exceptions to the confrontation right.

Now compare the structure that apparently emerges given the result in Giles: The accused forfeits the confrontation right if he engages in conduct that is designed to, and does, render the witness unavailable. But if the accused engages in serious intentional misconduct without a purpose to render the witness unavailable, the facts that the misconduct did in fact make her unavailable, and that this was entirely predictable, do not lead to forfeiture. Apart from forfeiture doctrine, there is an exception to the confrontation right for declarations made in the anticipation of imminent death. The reason this exception is recognized – without any basis for it in the text of the Confrontation Clause – is that it was extant at the time the Sixth Amendment was adopted. (The Court offers no other reason.) The fact that the principal reason given for it at that time – that such statements are highly reliable because of the imminence of death – conflicts squarely with the essence of Crawford is of no apparent concern.

This strikes me as originalism gone way overboard. As I have said, my argument accounts for the results of all the cases. It varies from the language and stated rationale of the old cases. But to say that the modern doctrine of the Confrontation Clause is bound – with respect to forfeiture, a doctrine that has a basis outside the text of the Clause (because it has no basis in the text) – by the language and stated rationale of 18th century cases, precluding a more sensible doctrine consistent with the results of those cases, seems to me to be taking originalism at least a step too far. Put another way: Crawford did to prior doctrine exactly what I am saying the Court should have done to the old cases – articulate a different and far more satisfactory rationale that is consistent with at least most of the results.