Hearsay, the Sixth Amendment, and Framers’ Intent: The U.S. Supreme Court Hears Argument in Giles v. California

By SHERRY F. COLB


Wednesday, May. 28, 2008/td>

Last month, the U.S. Supreme Court heard argument in Giles v. California. The case presents the question whether the introduction of a murder victim’s prior police statement against a defendant on trial for her murder violates the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides every criminal defendant with the right to be “confronted” with the witnesses against him, which includes the right to cross-examine them.

At Giles’s trial, the prosecutor offered the victim’s police statement as worthy of belief - as “hearsay,” in other words. The victim, because she is deceased, was not available for cross-examination. Was it proper for the trial judge to admit her statement to the police, even though the defendant could not expose its weaknesses through cross-examination? That is what the Court must decide.

The case is especially significant because the Court has recently and dramatically altered its approach to hearsay under the Confrontation Clause, and the change has given rise to many questions about classifying the hearsay that does, and the hearsay that does not, trigger a criminal defendant’s right to cross-examination.  Moreover, the question in Giles provides a fascinating window into some of the Justices’ thought processes, not only about the Confrontation Clause but also about the proper manner of determining what the Constitution means in the year 2008.

Hearsay and the Sixth Amendment:  The Court’s Abrupt, Recent Change of Course

It is widely understood that the Sixth Amendment’s  right of “confrontation” guarantees a criminal defendant the opportunity to cross-examine adverse witnesses.  Murkier definitional inquiries have concerned the content of the term “witnesses.”  Are “witnesses” limited only to those people who testify under oath at trial, or can a person be a “witness” by having her out-of-court statements introduced for their truth at a later trial?  To put the matter differently, when, if ever, does the introduction of hearsay against a criminal defendant implicate and perhaps even violate the Confrontation Clause of the Sixth Amendment?

Whether admitting hearsay violates the Constitution might appear to be a question on which the Court would have had ample opportunity to rule prior to 2008.  Indeed, it has ruled on this question and applied its rulings quite elaborately in the past.  In 2004, however, the Court abruptly changed course and announced a new test for determining whether and when hearsay implicates the Sixth Amendment.  In doing so, the Justices opened the door to a host of claims under the Confrontation Clause. 

In Crawford v. Washington, the Court held that, contrary to its earlier jurisprudence, the defendant’s right under the Sixth Amendment Confrontation Clause, on the one hand, and the evidentiary rule against hearsay (barring the introduction of out-of-court statements, offered to prove the truth of the statements in question), on the other, do not completely overlap – but instead form two largely distinct bodies of legal prohibitions, each with its own exceptions.  Most hearsay, the Court said, does not implicate the Sixth Amendment at all, because the typical out-of-court statement is not “testimonial” and therefore does not present “witnesses” against the defendant, whom he would have a constitutional right to cross-examine.  The decision in Crawford thus means that even hearsay fitting no exception to the general rule against its admission does not necessarily (or even likely) implicate the Sixth Amendment’s Confrontation Clause.

Conversely, the admission of some hearsay that comfortably fits within a “firmly rooted hearsay exception” (the previous Confrontation Clause litmus test) could nonetheless violate the Sixth Amendment because it is “testimonial,” and therefore requires the opportunity for cross-examination of the declarant (the person who made the statement).
Though the Court has not yet fully developed the meaning of “testimonial” in this context, it has said, in Crawford and the cases that followed, that a statement to the police in response to questioning will generally qualify as “bearing witness” for Sixth Amendment purposes so long as the purpose of the conversation was to preserve evidence for the future, rather than to address an emergency in the present.  (A good example of a conversation which does not “bear witness” is one that occurs between a caller and a 9-1-1 operator during an assault).

The reason for its new approach to the Sixth Amendment, the Court explained, was that the framers of the Sixth Amendment were clearly responding to a particular set of abuses, exemplified by the 1603 trial of Sir Walter Raleigh for treason, and those abuses coincided with the conception of “bearing witness” elaborated in Crawford.  The Court thus took an originalist approach to the Sixth Amendment/hearsay dilemma and found that its prior cases (which admitted hearsay into evidence whenever it fell within a “firmly-rooted” exception) betrayed the purpose underlying the creation of the right of confrontation. 

In addition to its originalist approach to classifying hearsay as “testimonial” or “not testimonial,” the Court made clear that it would recognize exceptions to its formulation in cases for which the framers themselves recognized exceptions, as evidenced by the common law rules that applied at the time of the framing.  This meant that even testimonial statements offered against a criminal defendant with no opportunity to cross-examine the declarant might be admissible, under the Sixth Amendment, because such a statement would have been admitted if offered against a defendant in the Eighteenth Century.

Forfeiture By Wrongdoing

At common law, one exception to the prohibition against a prosecutor’s introducing uncross-examinable statements at a criminal trial was for “forfeiture by wrongdoing.”  This generally involved a case in which the defendant had procured the absence of a witness (who would otherwise have provided incriminating testimony against the defendant), and the defendant now wishes to exclude that witness’s out-of-court statements on the grounds that the witness is unavailable for cross-examination.

Take a classic example:  Doe kills his father-in-law, Smith, to prevent him from testifying against Doe at Doe’s criminal trial for drug trafficking.  The prosecution offers into evidence a police statement by Smith describing the workings of Doe’s trafficking operation, and Doe objects to the admission of the evidence.  Smith’s police statement is presumptively inadmissible (at common law and now) because it is testimonial evidence that cannot be tested by cross-examination.  However,  the “forfeiture by wrongdoing” exception holds that because Doe was responsible for deliberately disabling Smith from testifying against him at trial, Doe is barred from complaining about the lack of an opportunity to cross-examine Smith. 

Had Doe left Smith alone instead of tampering with the witness, then Doe would have been able to cross-examine Smith to his heart’s content.  Because this exception had been part of the common law, the Court indicated in Crawford and in two later (consolidated) cases – Davis v. Washington and Hammon v. Indianathat evidence meeting the forfeiture-by-wrongdoing exception of the past would overcome a Confrontation Clause challenge in the present.

Giles and the Scope of Forfeiture By Wrongdoing

In the case pending before the Supreme Court, Dwayne Giles was tried and convicted for the murder of Brenda Avie, a woman with whom the defendant had been previously involved for several years.  In an episode a few weeks prior to the murder, police were called to a domestic violence scene, where Avie reported to the police that Giles had viciously assaulted her, held a knife to her, and threatened to kill her.  At Giles’s trial, the prosecution (successfully) offered these statements by the victim to prove that the defendant had in fact (later) murdered her and that he had not – as he claimed – killed the victim in self-defense. 

Under a California hearsay exception for forfeiture by wrongdoing, the Giles trial court admitted into evidence the statements that the victim had given the police.   When a defendant’s wrongdoing is the cause of a declarant’s unavailability for cross-examination, California law allows for the introduction of that declarant’s statements against the defendant.  On appeal, the Supreme Court of California upheld Giles’s conviction against a Sixth Amendment challenge.  The Supreme Court granted review of the case and heard oral argument on the question last month.

Giles’s attorney argued to the Court that in the absence of a common law exception, any testimonial statement of an unavailable declarant, offered against a criminal defendant, violates the Confrontation Clause of the Sixth Amendment, as re-interpreted in Crawford.  As the parties appeared to agree, Avie’s statement to the police regarding the defendant’s death threats to her constituted a testimonial statement that accordingly triggered the application of the Sixth Amendment.  At common law, moreover, “forfeiture by wrongdoing” applied to witness tampering – the intentional interference with a witness’s ability to testify – rather than to the broader circumstance in which a defendant wrongfully acts in a manner that has the effect (but not necessarily the purpose) of preventing the witness from testifying against him, the circumstances present in Giles

In sum, Giles’s attorney argued as follows:  Because the present case does not fall within the narrow “forfeiture” exception recognized at common law, the rule against the admission of non-cross-examinable testimonial statements against a defendant applies.  Accordingly, the introduction of Avie’s accusations violated Giles’s Sixth Amendment right of confrontation.

The state’s attorney argued, in response, that there is no logical distinction between the type of forfeiture by wrongdoing typically present at common law (i.e., intentional witness tampering to prevent testimony), on the one hand, and the type of forfeiture by wrongdoing present in Giles and admissible under California law (i.e., intentional killing that has the effect – whether or not purposeful – of preventing the murdered witness’s testimony), on the other.  In both cases, the person who would complain about his inability to cross-examine the “witness” (the out-of-court declarant) about her statements should be barred from objecting because it was his own wrongful conduct that put him in the position of being unable to cross-examine the witness in the first place. 

To cite a famous old case, the man who murders his mother and father is barred from asking the court to have mercy on him as an orphan.  Stated differently, the spirit of the common law forfeiture-by-wrongdoing exception contains the intuitive notion that people should not be allowed to profit from their own misconduct:  If you wrongfully make a witness unavailable, you cannot be heard to complain about her unavailability.

The Correct Answer

As in many cases before the Court, the right answer is not clear in this case.  The defense is correct to point out that the Sixth Amendment was generally intended to protect a criminal defendant against testimonial evidence that cannot be cross-examined.  Avie’s statements seem clearly to qualify as testimonial evidence.  And although there was a common law exception for forfeiture by wrongdoing, the exception should perhaps be construed narrowly to provide maximal Sixth Amendment protection to the defendant.  That is, there is an argument that even narrowly construed, this exception is somewhat at odds with the objectives of the confrontation right.  On this approach, the exception should be limited – as we might do for any unavoidable but regrettable doctrine – to its particulars. 

There is, moreover, a plausible conceptual distinction between deliberate and accidental witness tampering, and the evident injustice of excluding statements in the former case would appear greater than in the latter, simply because in the former case, exclusion gives the murdering defendant precisely what he sought in killing his witness.

The prosecutor, however, is also correct to observe that in all cases of forfeiture by wrongdoing – those present at common law and that presented in Giles – the defendant is blocked from profiting from his own wrongdoing.  Whether his decision to murder his victim resulted from a desire to prevent her from testifying or whether it resulted, instead, from his desire to avenge some imagined insult to his virility, he demonstrates a reprehensible audacity when he says at trial that her death and consequent unavailability – which he himself brought about – should bestow upon him the right to exclude her statements.  In either case, he is seeking to exploit the consequences of his own wrongful conduct.

However one views the merits of these arguments, there is something peculiar about adhering to the forfeiture-by-wrongdoing exception simply because it happened to be part of the common law at the time of the framing of the Sixth Amendment.  For one thing, the Sixth Amendment (and the Bill of Rights more generally) did not originally apply to the states at all but only to the federal government.  It was therefore the framers of the Fourteenth Amendment (through which the Sixth Amendment was incorporated against the states), rather than of the Sixth Amendment itself, whose intent should be examined, if in fact “framers’ intent” is the correct way to approach the contours of exceptions to the Sixth Amendment Confrontation Clause at a state trial.  Yet the Justices do not even raise this alternative framers’ intent approach, focusing obsessively on Eighteenth Century common law. 

More fundamentally, if the forfeiture-by-wrongdoing exception is truly incompatible with the right of confrontation, then the fact that the exception existed at common law should not compel today’s Supreme Court to neglect the meaning of the right itself, any more than the fact of segregation at the time of the framing of the Fourteenth Amendment should mandate an exception to the Equal Protection Clause for de jure (official) segregation.  If the inequity that sparked the Sixth Amendment logically includes the case of forfeiture by wrongdoing, then so much the worse for the forfeiture-by-wrongdoing exception, however narrowly construed. 

On the other hand, if we find compelling a doctrine that prevents the defendant from profiting from his own wrongdoing (and we therefore do not simply adopt the exception by fiat because the common law included it in 1789), then we should be open to the possibility that murdering a witness and then seeking to suppress her out-of-court statements is the moral equivalent of murdering a witness in order to preclude her in-court testimony.  And if they are morally equivalent “equitable” exceptions, then they ought to be treated in the same way now, regardless of what courts did in the Eighteenth Century.  As Justice Breyer asked humorously during oral argument:

“I know there wasn’t, but suppose there was a common-law rule that said in cases involving witches you cannot admit any evidence because either the witch, the accused witch, came up out of the water when they were dunking her, and, therefore, she is guilty, so there is no need; or she is under water, which shows she is, you know, [not] guilty, but you can’t cross-examine a person under water.  Now if there were a rule like that, would we now incorporate it into the Constitution of the United States?”

In addition to Justice Breyer, Justices Stevens, Kennedy, and Ginsburg all showed some reluctance during oral argument to be completely tethered to the peculiar practices of pre-constitutional America in determining the scope of the forfeiture-by-wrongdoing exception.  In contrast, the other Justices who spoke (Justices Scalia, Souter, Alito, and Chief Justice Roberts), though seeming to differ among one another on the merits of this case, all appeared either to accept or to endorse the tethering approach.  Regardless of how this particular case is resolved, the apparent lurch toward a rigid originalism is thus a matter for concern, especially as Election Day 2008 draws near.


Sherry F. Colb, a FindLaw columnist, is currently a Visiting Professor at Columbia Law School and will be joining the Cornell Law School faculty in the fall. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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