Cert petition on the audience question

An interesting and very capable petition for certiorari was filed this week in Racz v. California, 2011 WL 1689305. The petition seeks review of an unpublished decision of the California Court of Appeal in a "statements from the grave" case. Racz was convicted of murdering his wife, who disappeared. Among the evidence introduced against him at trial was a series of statements made by his wife, shortly before her disappearance, to friends and family members describing him as violent and expressing fear of him.

The petition ably shows that there is a sharp conflict of authority on the question of whether a statement can be deemed testimonial even though it was not made to governmental authorities. Regular readers of this blog will know that I believe the answer to that question should be affirmative. This is an important issue that the Supreme Court should resolve soon; whether this case is a good vehicle for that purpose, I do not know.

Even assuming an affirmative answer to that question, one would have to go further to conclude that the statements here were testimonial, but I think it reasonable to conclude that they were; it appears that the wife probably made the statements fully anticipating the possibility that she would be murdered and that her statements would provide evidence against her husband.

Even assuming the statements are testimonial, in an ideal world I believe a court should consider whether the accused forfeited the confrontation right by murdering his wife. But Giles v. California appears to foreclose that possibility.