Giles v. California, No. 07–6053.

• Court: U.S. Supreme Court
• Writing for the Court: Justice SCALIA delivered the opinion of the Court
• Citation: 171 L.Ed.2d 488,76 USLW 4568,21 Fla. L. Weekly Fed. S 439,08 Cal. Daily Op. Serv. 7838,554 U.S. 353,128 S.Ct. 2678,2008 Daily Journal D.A.R. 9491
• Docket Number: No. 07–6053.
• Decision Date: 25 June 2008
• Parties: Dwayne GILES, Petitioner, v. CALIFORNIA.

08 Cal. Daily Op. Serv. 7838
128 S.Ct. 2678
171 L.Ed.2d 488
2008 Daily Journal D.A.R. 9491
21 Fla. L. Weekly Fed. S 439
554 U.S. 353
76 USLW 4568

Dwayne GILES, Petitioner,
v.
CALIFORNIA.

No. 07–6053.

Supreme Court of the United States

Argued April 22, 2008.Decided June 25, 2008.

[128 S.Ct. 2679]

[554 U.S. 353]

Syllabus ^*

At petitioner Giles' murder trial, the court allowed prosecutors to introduce statements that the murder victim had made to a police officer responding to a domestic-violence call. Giles was convicted. While his appeal was pending, this Court held that the Sixth Amendment's Confrontation Clause gives defendants the right to cross-examine witnesses who give testimony against them, except in cases where an exception to the confrontation right was recognized at the founding. Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177. The State Court of Appeal concluded that the Confrontation Clause permitted the trial court to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing. It concluded that Giles had forfeited his right to confront the victim's testimony because it found Giles had committed the murder for which he was on trial—an intentional criminal act that made the victim [128 S.Ct. 2680] unavailable to testify. The State Supreme Court affirmed on the same ground.

Held: The California Supreme Court's theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment's confrontation requirement because it was not an exception established at the founding. Pp. 2682 – 2691; 2692 – 2693.

(a) 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. Pp. 2682 – 2684.

(b) 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. Pp. 2684 – 2687.

(c) 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

[554 U.S. 354]

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. Pp. 2686 – 2688.

(d) The dissent's contention that no testimony would come in at common law under a forfeiture theory unless it was confronted is not supported by the cases. In any event, if the dissent's theory were true, it would not support a broader forfeiture exception but would eliminate the forfeiture exception entirely. Previously confronted testimony by an unavailable witness is always admissible, wrongful procurement or not. See Crawford, supra, at 68, 124 S.Ct. 1354. Pp. 2688 – 2691.

(e) Acts of domestic violence are often intended to dissuade a victim from resorting to outside help. A defendant's prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant's subsequent act causing the witness's absence, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. Here, the state courts did not consider Giles' intent, which they found irrelevant under their interpretation of the forfeiture doctrine. They are free to consider intent on remand. Pp. 2693.

40 Cal.4th 833, 55 Cal.Rptr.3d 133, 152 P.3d 433, vacated and remanded.

SCALIA, J., delivered the opinion of the Court, except as to Part II–D–2. ROBERTS, C. J., and THOMAS and ALITO, JJ., joined that opinion in full, and SOUTER and GINSBURG, JJ., joined as to all but Part II–D–2. THOMAS, J., and ALITO, J., filed concurring opinions. SOUTER, J., filed an opinion concurring in part, in which GINSBURG, J., joined. BREYER, J., filed a dissenting opinion, in [128 S.Ct. 2681] which STEVENS and KENNEDY, JJ., joined.

Marilyn G. Burkhardt, Los Angeles, CA, for Petitioner.

Donald E. De Nicola, Los Angeles, CA, for Respondent.

Samuel Estreicher, New York, NY, James F. Flanagan, Columbia, SC, Marilyn G. Burkhardt, Los Angeles, CA, Donald B. Ayer, Meir Feder, Jones Day, Washington, D.C., for Petitioner.Edmund G. Brown Jr., Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer Jorstad, Deputy Attorney General, Donald E. DeNicola, Deputy State Solicitor General, Los Angeles, California, for Respondent.Justice SCALIA delivered the opinion of the Court, except as to Part II–D–2.

[554 U.S. 355]

We consider whether a defendant forfeits his Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial.

[554 U.S. 356]

I

On September 29, 2002, petitioner Dwayne Giles shot his ex-girlfriend, Brenda Avie, outside the garage of his grandmother's house. No witness saw the shooting, but Giles' niece heard what transpired from inside the house. She heard Giles and Avie speaking in conversational tones. Avie then yelled “Granny” several times and a series of gunshots sounded. Giles' niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie, who had not been carrying a weapon, had been shot six times. One wound was consistent with Avie's holding her hand up at the time she was shot, another was consistent with her having turned to her side, and a third was consistent with her having been shot while lying on the ground. Giles fled the scene after the shooting. He was apprehended by police about two weeks later and charged with murder.

At trial, Giles testified that he had acted in self-defense. Giles described Avie as jealous, and said he knew that she had once shot a man, that he had seen her threaten people with a knife, and that she had vandalized his home and car on prior occasions. He said that on the day of the shooting, Avie came to his grandmother's house and threatened to kill him and his new girlfriend, who had been at the house earlier. He said that Avie had also threatened to kill his new girlfriend when Giles and Avie spoke on the phone earlier that day. Giles testified that after Avie threatened him at the house, he went into the garage and retrieved a gun, took the safety off, and started walking toward the back door of the house. He said that Avie charged at him, and that he was afraid she had something in her hand. According to Giles, he closed his eyes and fired several shots, but did not intend to kill Avie.

Prosecutors sought to introduce statements that Avie had made to a police officer responding to a domestic-violence report about three weeks before the shooting. Avie, who was crying when she spoke, told the officer that Giles had

[554 U.S. 357]

accused her of having an affair, and that after the two began to argue, Giles grabbed her by the shirt, lifted her off the floor, and began to choke her. According [128 S.Ct. 2682] to Avie, when she broke free and fell to the floor, Giles punched her in the face and head, and after she broke free again, he opened a folding knife, held it about three feet away from her, and threatened to kill her if he found her cheating on him. Over Giles' objection, the trial court admitted these statements into evidence under a provision of California law that permits admission of out-of-court statements describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial and the prior statements are deemed trustworthy. Cal. Evid.Code Ann. § 1370 (West Supp.2008).

A jury convicted Giles of first-degree murder. He appealed. While his appeal was pending, this Court decided in Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the Confrontation Clause requires that a defendant have the opportunity to confront the witnesses who give testimony against him, except in cases where an exception to the confrontation right was recognized at the time of the founding. The California Court of Appeal held that the admission of Avie's unconfronted statements at Giles' trial did not violate the Confrontation Clause as construed by Crawford because Crawford recognized a doctrine of forfeiture by wrongdoing. 19 Cal.Rptr.3d 843, 847 (2004) (officially depublished). It concluded that Giles had forfeited his right to confront Avie because he had committed the murder for which he was on trial, and because his intentional criminal act made Avie unavailable to testify. The California Supreme Court affirmed on the same ground. 40 Cal.4th 833, 837, 55 Cal.Rptr.3d 133, 152 P.3d 433, 435 (2007). We granted certiorari. 552 U.S. 1136, 128 S.Ct. 976, 169 L.Ed.2d 800 (2008).

II

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted

[554 U.S. 358]

with the witnesses against him.” The Amendment...