Wednesday, April 23, 2008

Transcript of Giles argument

The transcript of the Giles argument is available through SCOTUSblog -- actually, it was avialable yestgerday -- and you may see it by clicking here.

Further thoughts on the Giles argument, from David Salmons

David Salmons of Bingham McCutchen LLP, lead counsel on the DV LEAP amicus brief in Giles, hasalso taken up my invitation to post thoughts on the argument. here they are, without editing by me.


I too attended the argument yesterday in Giles. The Court spent considerable time on the question of whether the common law dying declaration cases preclude California's application of the forfeiture by wrongdoing doctrine in the Giles case. It seems to me the most persuasive reason for why they do not is because the common law treated dying declarations as a special category of evidence, and subjected statements made after a potentially fatal wound had been suffered to particularly exacting standards of reliability. If a purported dying declaration did not satisfy those standards, it was excluded -- not because the admission would violate the confrontation right, but because the statement was insufficiently reliable given the special and dramatic nature of dying declarations and the risks such statements could overly influence the jury. See DV LEAP Amicus Br. at 17. Because dying declarations were a distinct category of evidence with their own rules for admissibility, the common law cases involving statements that do not satisfy the standards for admission as dying declaration do no go on to examine the evidence under the forfeiture doctrine. But that fact tells us nothing about the application of the forfeiture doctrine to cases that do not involve dying declarations. The dying declaration cases simply did not involve the forfeiture by wrongdoing rule at issue in Giles.

But, importantly, while the dying declaration cases are distinguishable, they are also consistent with the forfeiture doctrine adopted by California. The best example of this is
McDaniel v. State, 1847 WL 5865 (Miss. Err. & App. 1847) -- an early American case. After holding that the standards for a dying declaration were satisfied, the Court rejected the defendant's claim that admission of the statement would nonetheless violate his confrontation right, expressly relying on the forfeiture by wrongdoing principle for why confrontation was not violated. McDaniel therefore supports the view that the dying declaration exception incorporates and is consistent with California's view that the forfeiture-by-wrongdoing doctrine satisfies confrontation concerns even outside the traditional witness-tampering context, even though the dying declaration exception also includes additional reliability limitations above and beyond the confrontation right that are not at issue here.

Reflections on the historical discussion at the Giles argument

I attended the argument in Giles v. California yesterday. The question, for those who have not been following closely, is whether an accused forfeits the confrontation right by murdering a witness, even though he did not do so for the purpose of rendering her unavailable as a witness. I think the answer is clearly affirmative – but now we will have to wait to see what the Court does. I present below a first set of my reflections on the argument. I will follow up tomorrow with some other reactions. I will also post links to the transcript and to the oral recording when they become available.

Giles’ counsel (Marilyn Burkhardt) gained some traction with an historical argument that was emphasized especially in the amicus brief of the National Association of Criminal Defense Lawyers – that if forfeiture was as broad at the time of the framing of the Sixth Amendment as California contends, there would have been no need for a dying declaration that applied only when the victim believed death was imminent. Don DeNicola, for the state, attempted to respond that forfeiture addressed the confrontation concern, and there was a separate hearsay obstacle addressed by the dying declaration exception. But in response to questioning, he pretty much admitted that this was an anachronistic view, because there was no sharp distinction then between a body of confrontation law and one of hearsay law.

One possible response, of course, is to play down the importance of framing era history. Justice Breyer suggested this approach – to the predictable opposition of Justice Scalia (who mistakenly said that Justice Breyer dissented in Crawford). Justice Breyer suggested various respects in which the law of testimony has changed since the framing era, and wondered whether these were binding today. A problem pointed out by Justice Scalia is that these rules – all rules of incompetency, if I heard right – didn’t have much to do with the confrontation right. Nevertheless, it will be interesting to see to what extent the Court feels it is free to decide the case on some basis other than asking what a 1791 court would do in similar circumstances. My own view is that Crawford gained great power by showing that its fundamental conception of the confrontation right was consistent with practice not only at the framing era but for many years before and even after – but when we get down to more detailed issues that the text of the Confrontation Clause does not address the search for historical guidance becomes much less significant.

Having said that, I believe that Giles’ historical argument can be met effectively on its own terms. I was not surprised that the state did not raise what I believe to be the best answer to that historical argument (not coincidentally, the answer I presented in my amicus brief), because that answer involves recognition that the state has an obligation, if it wishes to invoke forfeiture doctrine, to do what it reasonably can to preserve the confrontation right. I’ll summarize my view briefly here.

Suppose in the framing era a defendant cast a fatal blow but the victim lingered for some time in a communicative state. If the authorities took a deposition of the victim, standard practice was to conduct the examination in the presence of the accused – and if the accused was not present, the deposition could not be admitted against the accused, even though the victim later died and so was obviously unavailable to testify at trial. But if the victim was aware of impending death when she made the statement, then absence of the accused was excused. Now of course the rationale usually given for the impending death cases was that the imminence of death was a guarantee of reliability akin to an oath. But the results reflect these principles:

1. Even though a victim may be dying, the authorities must, subject to proposition 2 immediately below, do what they reasonably can to preserve the confrontation right.

2. If the victim is aware that death is imminent, then the obligation to preserve the confrontation right does not apply.

And the most sensible rationale for this pair of principles is that the accused forfeits the confrontation right by murdering the witness, but only to the extent that the right cannot be reasonably preserved – and the point at which the victim is aware of the imminence of death marks the point at which, at least in the framing era, it was no longer deemed feasible and humane to examine the witness subject to confrontation.

In Crawford, Justice Scalia crafted a doctrine that adhered to the results of most of the precedents even though not their rationales; even to a strict originalist, it should not be terribly upsetting to do the same with respect to framing-era cases.

Justice Scalia asked Mr. DeNicola whether he had even one framing-era case in which a court had held the confrontation right forfeited in the absence of a demonstrated purpose to render the witness unavailable. Mr. DeNicola gave one important response – there are no cases clearly holding the other way, and the principle guiding forfeiture is broad enough to apply even in the absence of such a purpose. But I think he also could have given another, more satisfying response: “Yes, there are many such cases in which the accused murdered the victim, who made a statement shortly before dying, in circumstances that did not feasibly and humanely allow for confrontation. They are called dying declaration cases, and the rationale then given was that the statements were reliable, but the more persuasive rationale, the one that fits better with Crawford, is is that these were really instances of forfeiture.”

Tuesday, April 22, 2008

Thoughts from Joan Meier on the Giles argument

Giles v. California was argued today. I attended, but I've been traveling most of the time since, and it won't be til later tonight or tomorrow that I'll be able to post my reflections on the argument. Meanwhile, I invited Joan Meier, of George Washington Law School and DV LEAP, to offer her thoughts. They are presented below, without editing by me. I'll be happy to post reactions from anybody else who was at the argument, on any side of the issue.


Today's oral argument in Giles - concerning whether a defendant forfeits his confrontation right by killing the witness for reasons other than to silence her testimony - provided an interesting and frustrating glimpse into the Court's wrestling with the implications of originalism for its confrontation jurisprudence. Several points emerged, for this writer:

1. History does not answer the question presented in this case. Neither side can cite any Framing-era case which addressed the question raised here - of whether a defendant forfeits his right to confrontation under the "forfeiture by wrongdoing" doctrine, when the wrongdoing did not involve intentional witness-tampering. The State does, however, have one case from the mid-18th-century which affirmatively applies forfeiture in such a context (which Petitioner repeatedly fails to acknowledge). Smeade

Petitioner's argument that the fact that the only forfeiture cases in the Framing-era concerned witness-tampering means that those are the only cases we can apply it to today, grossly over-reads history. Merely because the Framing-era courts did not face this problem, and therefore there is no caselaw on it, cannot mean that we, who do face this problem, can do nothing about it.

Petitioner claims incorrectly that the common law courts required specific intent. There is not only no such requirement in the common law forfeiture cases, several of them actually find witness-tampering on facts that barely indicate a causal link to the defendant, let alone a specific intent. But the more important point - on which we can agree - is that framing-era courts seem to have only applied forfeiture in witness-tampering contexts. The question is - what does the absence of other cases (positive or negative) mean? If it was so clear that forfeiture could not apply outside the witness-tampering context, surely there would be a case, or two or three, saying so. In this writer's view, the complete absence of such caselaw indicates something quite different: That framing-era courts simply did not face this problem.

How/why would this be? For three reasons. First, domestic violence was not dealt with as a crime in the Framing-era's legal system. There would thus not be any police reports or comparable reports, of battering prior to domestic homicide. When a wife was murdered, authorities may have suspected the husband, but they would neither have had evidence of prior wife-beating, (certainly not statements to police), nor would they have been likely to have connected the wife-beating to the murder. Even in this country, the connection between wife-beating and murder was not understood until after the OJ Simpson case. At that time, I had conversations with colleagues - who knew me as a domestic violence lawyer - about the Simpson case. They could not understand why this case was of importance to my work on domestic violence. The unspoken and widespread assumption was that domestic violence is about hitting. Murder was different. We may have a better understanding now, but it was not so long ago, that we lacked it.

Returning to the the framing-era, the triviality with which wife-beating was perceived is aptly captured by John Adams' blythe response to his wife's impassioned plea to include some protection for wives in his "new code of laws": "I cannot but laugh... Depend upon it, we know better than to repeal our masculine systems... [we must avoid] the despotism of the petticoat." It is inconceivable that in that culture, courts or prosecutors would have seen a logical or legal link between wife- beating and murder. One was trivial and laughable - the other a serious crime.

A second reason why framing-era courts would not have faced the question of past hearsay presented in this case, is that they also did not face any other types of cases in which a history of criminal behavior might precede a homicide. Those cases are gang cases, drug cases, and mafia cases. Do any of these appear to have historical resonance?

Third, even assaults and threats between men were minimally prosecuted in Framing-era courts. Assault and battery was "for the most part treated as a civil matter between individuals..." Ruth Bloch, The American Revoslution, Wife Beating, and the Emergent Value of Privacy, Early American Studies, Vol. 5, No. 2, Fall 200, pp. 235-236.

In short, framing-era courts did not regularly prosecute assaults or threats, did not have reports of assaults or threats in the legal system, and would not have logically connected past assaults to a murder. They therefore had no occasion to consider whether a df should forfeit his right to confront the witness when he commits prior criminal wrongdoing which causes the witness not to appear. The Petitioner's (and Scalia's) assumption to the contrary simply misconstrues and over- simplifies history in order to draw inferences that are not supportable by the historical evidence.

2. Finally, lacking direct cases, if we wanted to surmise (or "infer," as the Court has suggested) what the Framer's intent might have been on a question like this one, there are at least two reasons to suspect that Framing-era courts would have applied forfeiture in a case like this, had it arisen (if they operated in an evidentiary world like ours, where, unlike theirs, much hearsay is admissible).
(1) The dying declaration cases, as the State's lawyer argued, are actually indicative of the fact that confrontation was forfeited in cases where the df had killed the witness - if the witness' statements met the dying declaration standards. Since dying declarations of other witnesses were not admissible - presumably, because the df's confrontation rights precluded it - it is clear that the admission of dying declarations in cases where the df killed the witness, represents an implicit recognition that confrontation is forfeited in that context.
(2) The children's rape cases - in which the courts routinely admitted children's hearsay before they could be sworn - and even after they began to be sworn, until at least 1788, continued to admit children's hearsay, for "necessity" and fairness, because no other evidence could prove the crime, which was committed behind closed doors, in secret, against a non- testifying victim - are strong support for inferring that Framing-era courts would have been sympathetic to the need to admit a murdered victim's past statements - IF they existed in a world where hearsay was frequently admissible, unlike their own.

J. Scalia, like the Petitioner, seems to believe that prosecutors and courts would have fallen back on forfeiture by wrongdoing in those dying declaration cases, had it been understood as the broad doctrine the State now argues for. Hence, they argue, the dying declaration doctrine would have been totally subsumed by forfeiture and would have been unnecessary. But this is another instance of mistakenly projecting modern norms and practices onto an earlier era. In those common law courts, virtually no hearsay ever came in. Only dying declarations, a narrowly cabined category, were admitted, and only as against the killer. Dying declarations were their own little legal box - because they were seen as unduly powerful and prejudicial - therefore, if a statement did not meet the strict standard, it did not come in. Forfeiture could not supply an independent basis for admitting something that failed to meet that category. Credit for this argument - which he can state far better - goes to David Salmons, the pro bono lawyer on the DV LEAP brief.

3. It seems to me that this case is emblematic of the perils and pitfalls of superficial originalism. In addition to the mistaken assumptions discussed above that fuel the "strict" view of what history "requires" here, some deep fault lines in the new jurisprudence are emerging. Crawford said that evidence standards and constitutional (aka confrontation) standards must be treated as distinct. Crawford also said that we must emulate history, with respect to confrontation standards. But framing-era courts treated confrontation and evidence concerns as merged. The implications of this are undoubtedly variable from case to case, and hard to spin out - and ultimately, in the eye of the beholder. There simply is no definitive, objective, nonarguable "meaning" that can be drawn from an ambiguous history. (Hence we spend untold hours speculating about what the Framers would have thought about something they did not think about.) Originalism of this sort, then, becomes merely a mask for values and policy goals, while disclaiming any such values and policies. I prefer a more honest discussion of policy and constitutional values.

Wednesday, April 16, 2008

A preview of Giles

The ABA's Preview of United States Supreme Court Cases asked me to do a write-up of Giles, and you can see it by clicking here. Under the Preview's format, the title of the piece is supposed to be a question of 14-18 words, and I got just under the wire with Does an Accused Forfeit the Confrontation Right by Murdering a Witness, Absent a Purpose to Render Her Unavailable?

Saturday, April 12, 2008

Written opinion in Jensen on the "dying declaration" point

Judge Bruce Schroeder, the trial judge in the Jensen case, has filed a written memorandum in support of the decision he previously issued orally, deeming Julie Jensen’s letter to be a dying declaration. Because I referred to the oral decision in my brief in Giles – and in unflattering terms – the judge has quite appropriately sent copies of the memorandum to counsel of record in the Supreme Court in Giles and to the Court itself. (Despite my jab at his oral opinion, he has been very polite to me in our brief, non-substantive exchange.) You can read the memorandum by clicking here.

In the oral opinion, the judge contended that Julie’s letter spoke only as of the time that it was opened by another person, after her death. The judge repeats the argument in the written memorandum. I stand by my criticism of it. Ascertaining the time of a statement for purposes of the "dying declaration" excpetion to the hearsay rule is not a matter of determining when, say, a contract offer becomes effective. The law of evidence looks to the realities of the situation, and Julie made the statement as of the time she committed words to paper, just as if she were writing a diary.

But the judge's written memorandum appears to make, or at least suggest, an alternative argument, which put in what I think are the strongest terms conflicts with the first argument: Even though the letter spoke as of when it was first written, Julie could have withdrawn it before it was opened, so in some sense it continued to speak until she was no longer able to withdraw it. Under the supposed logic of the dying declaration exception, if the declarant continuously made a statement, the determinative time should probably be the latest time she did so; if the supposed guarantee of reliability applied then, the fact that it did not apply earlier presumably would not matter.

This is a subtler theory than the “letter from the grave” idea, but I still think it is a distortion of the “dying declaration” exception. For it to be even plausible, there would have to have been a moment when Julie knew she was about to die and yet was able to withdraw the letter. The judge does not show that there was such a moment. Was Julie ever aware that death was imminent? And if she was, could she plausibly have gotten in touch with the letter-holder to pull the letter back? Even if the answers to both these questions are affirmative, I don’t think the argument is persuasive even within the strange logic of the “dying declaration” exception. Assuming a dying victim would be precluded by fear of eternal damnation from using her dying breaths to make a lying accusation, it is not clear that the same factor would prompt her to remember a statement made weeks before that expressed a basis for suspicion, and to use her dying breaths to take the initiative to nullify it.

The distortion of the exception is suggested by the fact that the prosecutor declined to rely on the exception, and the judge was not prompted to do so until the grant of certiorari in Giles made him think that the forfeiture theory on which the state supreme court relied might be vulnerable – therefore possibly leading to a mistrial and precluding the sensible result of allowing admission of the document. Really, rather than stretching the exception out of shape, it would be much better to hold that Mark Jensen forfeited the confrontation right with respect to Julie by killing her. I believe the judge’s reasons for reluctance to adopt this approach are addressed in my amicus brief in Giles.

While I'm at it -- in my discussion of Jensen in the amicus brief, I committed a blooper by saying that in Jensen the Wisconsin Supreme Court cited the California Supreme Court's decision in Giles. Would be amazing if true, given that Giles came down after Jensen. I've corrected the mistake by notifying the Court and counsel. I don't think my substantive argument is changed in the slightest.

Reply brief in Giles filed (updated April 12)

The petitioner in Giles filed his reply brief on Thursday. You can read it by clicking here. I believe this brief leaves intact the main arguments I made in my amicus brief. I just want to emphasize three points here.

1. My basic historical argument is this: (1) The traditional doctrine admitting certain dying declarations is best viewed as an implementation of forfeiture doctrine (though it was rarely articulated that way in the framing era) – a doctrine that applies if serious misconduct by the accused foreseeably rendered the witness unavailable, whether or not that was the purpose of the misconduct. (2) The traditional rule limiting the dying declaration exception to statements made when death appeared imminent to the victim, on which Giles puts great weight, is best viewed as a reflection of a rule that to invoke forfeiture doctrine the state must act reasonably to mitigate the loss of the confrontation right. I do not believe Giles offers any resistance to this view.

Even though a framing-era victim may have been dying, it was standard practice to examine her in the presence of the accused; if the accused was not present, the deposition generally could not be admitted. Only if the victim was aware that death was imminent was the accused’s presence excused. I believe that this well-established practice is entirely consistent with the doctrinal resolution that I recommend – that the accused forfeits the confrontation right if the witness is unavailable as a foreseeable consequence of the accused’s serious wrongful conduct, but that the forfeiture does not apply to the extent reasonable conduct by the state could have preserved the right. Thus, the fact that an assault victim eventually dies means that the accused forfeits the right to be confronted with her at trial – but it should not mean that he forfeits the right to be confronted with her at a deposition, if there was ample opportunity to hold one before the victim died. When is there an adequate opportunity for the state to offer a deposition? That, I believe, should be a matter of judgment on all the circumstances. But if the victim is aware of imminent death, that might be regarded as a pretty good indication that it is no longer civil and humane to make her confront the accused.

2. A case fitting the mold of Giles – in which the ultimate murder victim made a testimonial statement after an earlier, non-fatal incident – is probable only when there is a continuing relationship between the accused and the victim. But non-lethal domestic violence was not generally prosecuted in the framing era, and for many years afterwards, so there would be little occasion for a victim of a non-lethal assault to make a testimonial statement. Giles contends that “there surely were many incidents in which a homicide victim, prior to the fatal attack, had previously reported threats made by the killer in the course of seeking help from a relative, neighbor, local vicar, or even local constable . . . .” Reply Brief at 6. But what is most striking is that Giles does not cite any such case. Perhaps there were occasional cases of this sort (and if there were, under the doctrine of Davis v. Washington, 547 U.S. 813 (2006), some of the statements would not be considered testimonial), but there was obviously no settled practice governing it. Even if one is inclined to give primacy to framing-era practice – and the weight to be attached to it should be diminished given that forfeiture doctrine is not rooted in the language of the Constitution – in this setting there was no well-established practice that should control this case.

3. It is very easy for an advocate to take pot shots at an academic who takes a contrary point of view. But both Giles and the NACDL are very gracious to me in their briefs, and I appreciate that.