Wednesday, July 02, 2008

Reflection on Giles, Part 3: What Does It Mean?

The accused has intentionally engaged in serious wrongful conduct that has in fact caused the victim to be unavailable as a witness at trial. What state of mind on the part of the accused with respect to that unavailability will support a finding of forfeiture under Giles? There is some ambiguity about that.

Jsutice Scalia’s opinion, which for the most speaks for a majority of the Court, refers repeatedly to the defendant’s “intent.” As Justice Breyer emphasizes, there is a soft meaning of the term intent – one is deemed to intend the expected consequences of his conduct. If that is what Justice Scalia meant, then there might not be much of a dispute at all, because one expected consequence of Giles’ fatal assault would be that Avie would not be able to testify. Even on this assumption, though, there may be some ambiguity. In arguing that Davis v. Washington is consistent with what I believe to be the proper approach to determining what is testimonial – one based on the reasonable expectation of the declarant – I have noted the difference between “armchair” and “heat of the moment” expectation. In each, we consider the declarant dealing with the same information, but we assume different contexts; I think Davis is consistent with the view that the expectation of a reasonable declarant should be judged as of the moment when she actually spoke, not as if she were considering the situation later from the comfort of an armchair. The same dichotomy might apply to a reasonable-expectation test of forfeiture, though I think that if it did there would be a stronger argument for applying the armchair test – the accused ought to bear the burden of difficulties that would be obvious to him if he carefully considered the likely consequences of his wrongful conduct. If one applied the armchair view of a reasonable-expectation test, that would essentially cause forfeiture doctrine to come out where the state (and I) thought it should.

But, despite his use of “intent,” Justice Scalia does not appear to be thinking of any reasonable-expectation test. He appears rather clearly to mean that forfeiture applies only to conduct that was motivated (at least in part, and how much is another question) by the desire to render the witness unavailable. Thus, for example, in Part II.A of his opinion, emphasizing a limited meaning of the term “procurement,” he writes, “The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying.” Slip op. at 5. On pp. 7 and 14 of the opinion, similarly, in speaking historically he uses “designed” language, and on p. 6 he speaks of the historical materials indicating “a purpose-based definition.” And on p. 13, referring to Fed. R. Evid. 804(b)(6), he endorses Mueller and Kirkpatrick’s comment that courts insist that “the defendant [have] in mind the particular purpose of making the witness unavailable.”

So we seem to have a purpose-based test. But there are a couple of sources of ambiguity – one passage in Justice Scalia’s opinion and one in Justice Souter’s concurrence. Justice Scalia writes:
Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, 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 – rendering her prior statements admissible under the forfeiture doctrine. 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.
Slip op. at 23. Clearly Justice Scalia means to cover the situation in which H, knowing that W will likely testify against him on a charge arising out of a prior incident, murders W so that W will not be able to testify. That is close to a core case of forfeiture, falling within the narrowest plausible definition, but with one twist. The twist is that in the core case the witness's testimonial statement was made in connection with the present case, and the accused murders the witness to prevent testimony in that present case. In the case envisioned by Justice Scalia. the testimonial statement was made with reference to a crime other than the murder charged in the indictment, and the defendant committed the murder to prevent the victim from testifying in that prior case. In other words, the court is willing to allow forfeiture of the confrontation right within a given case if the accused's purpose was to prevent testimony, even if the accused anticipated that testimony being used in another case; if the accused's purpose was only to end a life that he had come to regard as an annoyance, that will not cause forfeiture.

Justice Scalia also means to include abusive conduct “designed” to prevent W from making testimonial statements to authorities – though how this design would be proved in the absence of explicit threats is unclear. Is it enough to present general evidence of the patterns and psychology of abusers, supporting the proposition that in beating W, H was not merely expressing his anger and desire to control her, but also attempting to intimidate her from seeking outside help, including help from the authorities? That seems to be quite an inferential leap.

And, what does Justice Scalia mean by saying that murder may “express[] the intent to isolate the victim” and prevent her from testifying? Murder is not generally an expressive act, so the choice of verb seems odd. Does he mean to cover more than the easy case (in terms of theory even if not of proof) in which the murder was the means by which H effectuated the desire to prevent W from testifying? Does he mean that the murder might reveal that the intent of the prior abuse was to intimidate the witness from testifying – and if so, what does that matter?

Justice Breyer says hopefully that in this passage the majority creates "a kind of presumption that will transform purpose into knowledge-based intent – at least where domestic violence is at issue." Slip op. at 25. Justice Scalia denies that the test he enunciates is one requiring nothing more than "knowledge-based intent," and he is right. But Justice Breyer seems to be making a prediction, and perhaps he is right as well. For example, in a case like Giles itself, perhaps the state will be able to persuade the courts that Giles knew that Avie had made the prior statement to police, so that it should be inferred that killing Avie was designed, at least in part, to prevent her from testifying at a trial.

The interpretive intrigue is greatly compounded by the fact that, even though they joined the key parts of the Scalia opinion, Justice Souter, with Justice Ginsburg concurring, articulates a different standard, with which the three dissenters contingently agree – the contingency being the actual meaning of the standard. Justice Souter says that "the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process." Slip op. at 2-3. Justice Breyer believes this language "in effect presumes 'purpose' based on no more than a history of domestic violence," and on that understanding agrees with it, or is at least satisfied that it gets to the right result. So it could be that we have five justices agreeing on the proposition that if a domestic abuse complainant is intimidated from testifying, and the prosecutor can show that she and the accused were in a "classic abusive relationship," that is sufficient for forfeiture. Well, that isn't pretty – for reasons stated in the second installment of these reflections, I worry about the theoretical problems with this approach – but it will get a lot of the job done. As Justice Breyer indicates, it seems to wash purpose largely out of the picture; it certainly does not demand that purpose to render the complainant unavailable be the accused's dominant purpose in engaging in abuse.

Justice Souter, again with the qualified endorsement of the dissenters, also includes this potentially significant statement as part of the passage quoted above:
If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.
Slip op. at 3. True enough. But in the murder case, the instant before the fatal blow (or perhaps even after it) the complainant was presumably willing to testify, notwithstanding a history of abuse; the last piece of information we generally have is that she did make a testimonial statement (the one at issue) to the authorities. (Contrast the intimidation case, in which the last thing we know is that the complainant is not willing to testify.) So it was the single act of fatal violence that prevented her from testifying at trial, not a history of isolation-causing abuse. Perhaps Justice Souter's logic is something like, "If he engaged previously in the type of abuse that tends to cause isolation, then murder should be considered also as motivated at least in part by a desire to prevent the victim from getting help from authorities." I assume many courts will take advantage of this language to admit statements in Giles-like situations. The logic seems shaky to me, but the results will often be good ones – though I remain concerned about the absence of a mitigation doctrine.


Anonymous said...

I think your initial analysis fails because you are looking for a sociological justification for what the majority of the SC views in psychological terms. This isn’t product liability. Legal constructs such as ‘foreseeable consequence’ and ‘reasonable expectation’ are inapposite in these situations; the person of ordinary experience is not beating his wife and then killing her when she threatens to tell. The question is what evidence illustrates that this specific defendant committed this specific crime to make this specific witness unavailable. All of the discussion in the Souter and Scalia opinions about intent and design are framed in that psychological context.

Your misunderstanding is also the misunderstanding that inflects much of the dissenters’ opinion. The issue isn’t what one can infer from domestic violence in general and then apply to this specific defendant. Nor is it the mere presence of a history of domestic violence that defines intent. The issue is what one can reasonably infer about the defendants state of mind from the history of his specific interactions with the absent witness. Souter uses the “classical case” of domestic violence to illustrate this point, not define it away. This is also what I meant in my earlier post about the clear intent of the majority opinions requiring a fact bound inquiry. “Facts” in the sense I mean them and in the sense the majority means them are not sociological data taken from some academic research study. Nor are they judicially sanctioned speculation about reasonableness that refer to cultural norms. They are facts developed on the record about this specific defendants interactions with the absent witness prior to the crime at issue. From these specific facts the judge then must conclude whether or not it is probable that the defendant specifically intended to make the witness absent.

Once one accepts that these are fact based inquiries one then can consider what counts as evidence of a particular state of mind. Mens rea cases are somewhat arbitrary by definition anyway, since no one can read another person's mind. All one can do is look for external evidence beyond the statements of the deceased and defendant to form a judgment. The classic case of domestic violence is powerful evidence in support of the proposition that the defendant intended to make the witness absent. Indeed, when one begins to consider what external evidence is relevant to making such inferences, this evidence usually presents one with a rather clear set of conclusions. It normally is not vague or messy. I find it highly improbable that a defense attorney is going to come across a specific fact pattern that will allow him to argue with a straight face that that his client "intended to make the witness unavailable but didn't design to do it". As a practical matter, such fine distinctions in logic will fade into the background in the overwhelming majority of cases similar to Giles. And even if such extreme outliers do exist, there is no need to bend logic or sanity to accommodate them; simply treat them as the outliers they are.

Richard D. Friedman said...

You say, "The issue is what one can reasonably infer about the defendant[']s state of mind from the history of his specific interactions with the absent witness." I almost agree. Two caveats: (1) That's the issue only if it is defined to be the issue. I don't believe the dissent regards the particular defendant's state of mind as dispositive -- and there is nothing irrational in making the standard what a reasonable person in the position of the accused would anticipate. (2) In any event, everything else we know about the world, including the general pattern of domestic abuse, may enter the decision.

As to the difference between design or purpose on the one hand and intent on the other: I believe we have to be very careful with definitions. (1) Intent may mean nothing more than that a reasonable person in the position of the accused, had he considered the situation carefully, would realize that one consequence of his conduct would be to render the witness unavailable to testify in judicial proceedings. (2) Purpose may mean: The fact that his conduct would render the witness unavailable was a significant factor causing the accused to engage in that conduct. I don't think it's at all implausible that an accused would have intent within definition (1) but not purpose within definition (2). Perhaps Giles himself falls within that description.

Paulo Dá Mesquita said...

Dear Professor Friedman,
In criminal law scholarship of the majority of civil law systems we have a very soft concept of intent, which may be applicable to the forfeiture doctrine. I think even the Scalia opinion isn’t closed to that possibility. He wave three degrees (1) direct, (2) necessary and (3) eventual intent:
1- Whoever, representing an act that constitutes a cause to a person not be able to testify, carries it on, with the purpose of accomplishing it, acts with intent.
2- A person still acts with intent when he represents the accomplishment of an act that constitutes a cause to a person not be able to testify as a necessary consequence of his conduct.
3- When the accomplishment of an act that constitutes a cause to a person not be able to testify is represented as a possible consequence of the conduct, there is intent if the agent acts accepting that accomplishment.
I think the opinions of Scalia and Souter admit the necessary intent, which must be analyse with the «armchair» criterion, I have more doubts about the eventual intent, but I think they aren’t closed to that, and if we accept that degree of intent, the only possible way to apply it is also with an objective (probability) test.
In a more analytical development we can divide the intent in two elements, the cognitive element and the intentional element (direct, necessary or eventual), in this approach « “heat of the moment” criterion» is only applicable to the cognitive element (the accused is conscientious about the possibility of the person object of his action may be a usable as a witness in a criminal trial against him)

Paulo Dá Mesquita
(Portuguese researcher, )

Paulo Dá Mesquita said...

In the last paragraph where I speak of intentional element I want to say volition element.

Richard D. Friedman said...

Thanks for the interesting comment and breakdown of possibilities. I'm dubious that Scalia is really open to the broader view, but I suspect it will be some time before this issue is again considered by the Supreme Court, and meanwhile we will have to see what the lower courts do with it.