Giles v. California

United States Supreme Court (2008)

The outcome of this case is critically important for the future prosecution of domestic violence and domestic homicides, because it will determine to what extent the State may introduce evidence of victims' past statements describing the defendant's abuse, in prosecutions for homicide (and potentially, other cases involving domestic violence).  The constitutional right to confrontation normally operates to exclude from trial past out of court accusatory statements by a witness who does not testify at trial, on the theory that the defendant has the right to cross-examine the witnesses against him.  However, that right is subject to "forfeiture by wrongdoing," which means that if a defendant wrongfully causes the witness to be absent from the trial, he forfeits his right to cross-examine them.

In Giles, the State of California charged the defendant with the murder of his former girlfriend. The defendant admitted to killing the victim but claimed it was self-defense.  At trial, the prosecution introduced a statement made by the victim to the police after an earlier incident in which, while crying, she told them he assaulted her, threatened her with a knife, and threatened to kill her.  The defendant argued that these past out of court statements should be excluded as violationg his right to confrontation, since he could not cross-examine the witness. He argued that the "forfeiture by wrongdoing" doctrine- which would mean his right to confrontation is forfeited - does not apply to him unless he killed the victim for the express purpose of excluding her testimony.

The legal issue before the Supreme Court was whether a criminal defendant who killed his victim may exclude her past statements to the police, pursuant to his confrontation right, of whether he "forfeits" the right by wrongfully causing the witness' absence, regardless of whether he killed her with the specific intent to prevent her from testifying against him.

While kiling the witness might appear to be the quintessential instance of "forfeiture by wrongdoing," because the Supreme Court has adopted a new and narrowly "historical" approach to the confrontation clause, what might appear to be the logical answer is by no means guaranteed. As it happens, at the time of the adoption of the Constitution, which is now the Court's benchmark for interpreting the right of confrontation, common law courts typically applied the forfeiture doctrine only to cases involving witness-tampering.   There is no caselaw indicating that the doctrine was (or was not) applied to facts like those presented in Giles.  Given the Supreme Court's new attempted fidelity to Framing-era understandings, the question before the Court was how to interpret this history with respect to the facts presented in Giles.

DV LEAP, with the able assistance of pro bono counsel at Bingham McCutcheon, and supported by Legal Momentum and the California Partnership to End Domestic Violence, spearheaded a domestic violence amicus brief that made the following arguments: (1) the historical cases and treatises do not support a specific intent requirement for forfeiture; (2) the equitable maxim underlying the forfeiture doctrine, that "no one shall be permitted to take advantage of his own wrong," along with constitutional norms, support an application of forfeiture to defendants who wrongfully kill their victim, regardless of whether they did it to silence them; (3) an intent requirement will make admission of victims' previous statements about the abuse, which are often essential to proving who killed her and why, nearly impossible; and (4) a specific intent requirement as a predicate for forfeiture of confrontation rights will create an incentive for batterers to kill their victims, as this will reduce their risk of conviction.  Thus, the brief argues, a specific intent requirement is fundamentally incompatible with achieving justice and upholding the deterrant potential of criminal law in the context of domestic violence murders.

 The high Court concluded that such a defendant retains a right to confront the victim he killed, but , in a victory for the domestic violence community, a majority of the justices agreed that a history of domestic violence is a meaningful indication of the defendant’s “intent to silence” the victim when he killed her.  The multiple opinions demonstrated a remarkable understanding of domestic violence as a form of silencing of the victim.

Please click here to read DV LEAP's amicus brief.  Please click here to read the oral argument transcript.

Please click here to read the Supreme Court's opinion.