Court allows criminal defendant to exclude victim's testimony (June 25, 2008)

A murder defendant has the right to exclude the testimony of his victim, the Supreme Court held in a case that sheds light on the state of Confrontation Clause doctrine.

The case, Giles v. California, No. 07-6053, arose when Dwayne Giles was tried for the murder of his ex-girlfriend Brenda Avie. Giles's position was that he shot the woman in self-defense, having heard her vow to hurt him and a friend. Giles maintained that Avie had once shot a man, and had threatened people with knives.

To thwart Giles's defense, prosecutors introduced evidence of a police conversation with Avie one month before the shooting. Investigating a report of domestic violence, officers who interviewed Avie were told that Giles had assaulted her and threatened to kill her while brandishing a knife.

On appeal, Giles argued that the use of Avie's police interview during the trial violated his Sixth Amendment right to confront witnesses against him. The California Supreme Court held that Giles had given up his right to confront Avie because his wrongdoing was the cause of her absence.

Historically, under both the common law and statute, defendants have been subject to the rule of "forfeiture by wrongdoing." That rule provides that those whose own wrongful actions have prevented a witness from testifying are said to forfeit their confrontation rights so that hearsay testimony from the absent witness is admissible.

However, in 2004 the Supreme Court issued Crawford v. Washington, 541 U.S. 36 (2004), announcing a new direction in Confrontation Clause doctrine. Crawford essentially wiped out the admissibility of out-of-court testimony from unavailable witnesses unless the previous testimony was subject to cross-examination by the defendant.

In Crawford, the Court stressed that its goal was to revive confrontation as the primary means of assuring the trustworthiness of a witness's statements. Therefore, exceptions to the hearsay rule that were designed to achieve a result other than reliability were apparently preserved.

The Court will have the opportunity to elaborate on Crawford's application to the forfeiture by wrongdoing exception to out-of-court testimony in the Giles case. The case presents a unique version of that exception because the wrongdoing that kept Avie from court -- the murder -- was not motivated by a desire to prevent her from testifying.

On June 25, a 6-3 court overturned the state court decision.

"Domestic violence is an intolerable offense," Justice Antonin Scalia wrote the majority opinion, adding: "But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State’s arsenal."

In a dissent joined by Justices John Paul Stevens and Anthony M. Kennedy, Justice Stephen G. Breyer suggested that "there are several strong reasons for concluding that the forfeiture by wrongdoing exception applies here—reasons rooted in common-law history, established principles of criminal law and evidence, and the need for a rule that can be applied without creating great practical difficulties and evidentiary anomalies."