Giles v. California and Confrontation Clause

This 6-3 decision of the Court (Opinion by Scalia; dissent by Stevens, Kennedy, Breyer), vacating the decision of the CA Supreme Court and remanding the case to the CA Supreme Court, which will send it down to the trial court for further consideration, was strange at first to me, especially since the Four Conservatives were all in agreement that an evidentiary decision in a criminal conviction shouldn't stand. At first I said to myself, "Has the world been turned upside down? Are the Four Conservatives, and two more liberal justices, experiencing some kind of latter-day conversion? Has the frenetic pace of the last days of the Court's term addled their brains?" But then, upon thinking about the rationale of the decision for a minute, it became clear what was "up." The Court was reversing the CA court not because they were "soft on crime" (Giles, indeed, would also be convicted on other grounds), but because of their approach to the Confrontation Clause in the 6th Amendment.

In short, ever since the Crawford case of a few terms ago (discussion of Crawford appears in the Giles summary, here), the Conservatives, led by Scalia, have been very firm that confrontation between accuser and defendant must needs happen in all but a narrow range of circumstances. In this case, the CA Supreme Court had held that as long as Giles had created the conditions for the hearsay testimony (i.e., not confronted testimony) to take place, by murdering the testifier after she told police about his violent tendencies toward her, the testimony of the murdered person was allowable. What the US Supreme Court held, however, was that this was not an exception to the Confrontation Clause of the Sixth Amendment which predated the enactment of that Amendment. Thus, since it was a "modern invention," it must not have been in the Founders' mind. Thus, the modern doctrine must be disallowed. What is an exception to the Confrontation Clause, however, is if the defendant purposefully made the accuser "unavailable" specifically because he wanted to prevent her testimony. Since the courts below didn't weigh in on that issue (i.e., facts were not presented on that theory), the case is remanded for an evidentiary hearing on that issue.

I suppose the way things will work is that prosecution will put on the case that he killed her in order to keep her from testifying about him. If they win on that point, then Giles will quickly be convicted. If, however, they don't prevail on that point, Giles will probably still be convicted on the basis of other evidence. Thus, as is so often the case in law, legal points are argued to satisfy the curiosity or doctrinal/systemic interest of the judges. The end result for the defendant might not be that different..

Justice Scalia's Argument

Here is how Justice Scalia argued in the majority opinion:

"Common-law courts allowed the introduction of statements by an absent witness who was “detained” or “kept away” by “means or procurement” of the defendant. Cases and treatises indicate that this rule applied only when the defendant engaged in conduct designed to prevent the witness from testifying."

Furthermore,

"the manner in which this forfeiture rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant wrongfully caused the absence of a witness, but had not done so to prevent the witness from testifying, unconfronted testimony was excluded unless it fell within the separate common-law exception to the confrontation requirement for statements made by speakers who were both on the brink of death and aware that they were dying."

Crucial for Justice Scalia was that the CA court's proposed exception to the Confrontation Clause didn't exist as an exception at the time of the founding of the Republic; hence it is a "later addition" that can't stand.

"Not only was California's proposed exception to the confrontation right plainly not an “exceptio[n] established at the time of the founding,” Crawford, supra, at 54, 124 S.Ct. 1354; it is not established in American jurisprudence since the founding. No case before 1985 applied forfeiture to admit statements outside the context of conduct designed to prevent a witness from testifying. The view that the exception applies only when the defendant intends to make a witness unavailable is also supported by modern authorities, such as Federal Rule of Evidence 804(b)(6), which “codifies the forfeiture doctrine,” Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224."

There you have it. We now have a historical jurisprudence for the Sixth Amendment which requires us to look at historical conditions before and at the time of the Amendment's enactment. If it was a "well-established" exception then, it survives. If it wasn't, it doesn't survive. Simple as that, even though that statement is a lot simpler than the historical investigation itself.

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