Analysis: An old adage may not apply
As long ago as 1879, the Supreme Court made clear that an individual cannot benefit, in a criminal trial, from his own misconduct. That is an adage, the Court said then in Reynolds v. U.S., that dates back at least to 1666 in English history. So, the Court concluded in Reynolds, if an individual accused of crime voluntarily keeps away from the trial a witness against him, he has no constitutional objection if the evidence the witness would have given on the stand is brought in by some other means.
That has a ring of common sense and conventional morality about it even today, as Chief Justice John G. Roberts, Jr., intimated when he remarked on Tuesday: “We usually, under our system, don’t try to give benefits to murderers.”
But, contrary to widespread expectations, it could turn out that the old adage does not apply to the murder case of Giles v. California (07-6053), a case the Justices heard on Tuesday. The strong impression from the argument was that the Court might well refuse to apply the principle in all cases, whenever the accused caused a witness not to appear.
The “benefit” that Dwayne Giles’ attorney was seeking in the case is the exclusion of evidence against him by his former girlfriend, whom he murdered — the crime for which he was on trial. At that trial, the prosecution put on the testimony of a Los Angeles police officer who had interviewed Brenda Avie, the former girlfriend, three weeks before she was shot dead. Ms Avie told the officer that Giles had assaulted her and threatened to kill her. The testimony was offered to show a Giles’ propensity to be violent. The California Supreme Court, contributing to a lower courts conflict on the issue, concluded that there was no need to prove that Giles specifically intended to silence Avie in order to find that he had surrendered his right to face his accuser’s evidence.
The use of her statement, in her absence, violated his right to challenge her evidence, Giles’ lawyers contended, relying upon the Supreme Court’s 2004 decision in Crawford v. Washington. The absence of a chance to cross-examine, the claim was, undercut his claim that he shot her in self-defense. Her statement, Los Angeles attorney Marilyn G. Burkhardt told the Court Tuesday, “obviously was highly prejudicial because it indicated to the jury that he was planning to kill her.”
The hearing ranged widely over what common law principles were regarding the old adage, and whether the Confrontation Clause, when put in the Constitution in 1791, accepted that as an exception to the right to face one’s accusers.
Justice Anthony M. Kennedy, in a comment early in the argument, said that “we are presented with an instance that I’ve never seen, which is that the murder itself makes the declarant unavailable for purposes of the equitable exception. And it is true that that goes much further than the common law did.” Burkhardt readily agreed, saying that the state “has not cited one single case at common law or after that supports its view”that merely causing an absence of a witness, without intent to silence that witness, forfeited the right to confrontation.
Justice Stephen G. Breyer, at that point and throughout the argument, would raise questions about which among a wide range of common law rules on unavailable witnesses were, or were not, valid ways in the modern era to trigger the Confrontation Clause.
But Burkhardt deftly countered him by suggesting that what was at issue was the “basic policy” of the Clause, “which is that we are to have live testimony in court….Any exception to the Confrontation Clause must be very, very narrow.”
Justice Antonin Scalia was the most fervent champion of Giles’ cause, suggesting that the Court in Crawford had interpreted “the meaning of the Confrontation Clause” as it was understood “when the people adopted it.”
The Chief Justice and Justice Ruth Bader Ginsburg speculated over the reasons why Giles might have shot Avie, but Burkhardt suggested that such thoughts were “highly speculative.” Those questions seemed to reflect a concern, not about ruling for Giles, but about ways to narrow such a ruling so that it would not allow the Confrontation Clause limitation to nullify many convictions where the motive for killing a would-be witness was uncertain.
Much of the argument for the state of California, by deputy state solicitor Donald E. De Nicola, was taken up with exchanges over what the common law required about admission at trials of dying declarations that accused the defendant of the crime. Burkhardt had gone to considerable lengths to suggest that the dying declaration basis for admitting evidence imposed significant limits on such evidence.
As De Nicola argued for a flat rule that no defendant could profit under the Confrontation Clause from the wrong of killing a witness, without proof that that was done intentionally to keep the witness off the stand, Chief Justice Roberts questioned whether that rule “would drive a pretty big hole through Crawford [v. Washington].”
Justice Kennedy suggested that a ruling for Giles perhaps would not affect many cases, because the Crawford decision only operated to exclude witness statements that were technically “testimonial” in nature. And, a bit later, Kennedy told De Nicola: “Well, I think it’s an astonishingly broad exception you’re asking for.”
In the end, Justice Scalia suggested that cases like Giles’ “may be very rare….It would be very unusual that someone would kill a victim in order to preent her testifying at a murder trial which is not yet in prospect because you haven’t murdered her…It would be rare on [Burkhardt's] theory; it wouldn’t be rare on yours. It happens all the time on yours, I would think.”