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.

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.

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.

Top-side amicus briefs in Melendez-Diaz (updated, June 24, pm)

Yesterday was the deadline for amicus briefs in support of the petitioner in Melendez-Diaz v. Massachusetts, No. 07-591, the case raising the issue of whether forensic laboratory reports are testimonial within the meaning of the Confrontation Clause. I have filed a brief, which you can see by clicking here. For the brief of several other law professors, click here. For the brief of the National Innocence Network, click here. And for the brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders, and the National College for DUI Defense, click here. My understanding is that these are no other amicus briefs filed in support of the petitioner.

Petitioner's brief in Melendez-Diaz

While we wait for the Supreme Court to decide Giles, Melendez-Diaz v. Massachusetts, the case that will decide whether forensic lab reports are testimonial, is moving ahead. To see the petitioner's main brief on the merits, filed this past Monday, click here. Jeff Fisher is lead counsel for the petitioner. Amicus briefs supporting the petitioner are due next Monday, June 23. I expect to file one; I believe these statements are clearly testimonial.