Friday, June 27, 2008

Right To Face Accusers Affirmed

Lost in the hoopla of Wednesday's death penalty ruling and yesterday's gun ruling was this 6th amendment case involving the right to confront and cross witnesses, domestic violence, and death.

The Supreme Court yesterday threw out the conviction of a man accused of murdering his ex-girlfriend because the defendant could not challenge an incriminating account she gave the police weeks before her death.

The 6 to 3 ruling drew howls from domestic violence opponents who said the decision could lead to perverse situations in which criminals would reap a legal "windfall" after killing their victims.

The case revolved around the Sixth Amendment, which affords people the bedrock right to confront and cross-examine witnesses who give testimony against them. At issue is whether defendants forfeit their confrontation rights by doing harm to people whose statements are introduced in judicial proceedings.

The six (Scalia, Thomas, Souter, Ginsburg, Roberts, C.J. and Alito) found that the defendant in this case did not forfeit that right, while the dissenters (Stevens, Kennedy and Breyer) did.

Here are the facts of the case, from Justice Breyer's dissent:
This case involves a witness who, crying as she spoke, told a police officer how her former boyfriend (now, the defendant) had choked her, “opened a folding knife,” and “threatened to kill her.” Three weeks later, the defendant did kill her. At his murder trial, the defendant testified that he had acted in self-defense. To support that assertion, he described the victim as jealous, vindictive, aggressive, and violent.
To rebut the defendant’s claim of self-defense and impeach his testimony, the State introduced into evidence the witness’ earlier uncross-examined statements (as state hearsay law permits it to do) to help rebut the defendant’s claim of self-defense. It is important to underscore that this case is premised on the assumption, not challenged here, that the witness’ statements are testimonial for purposes of the Confrontation Clause. With that understanding, we ask whether the defendant, through his wrongdoing, has forfeited his Confrontation Clause right. The Court concludes that he may not have forfeited that right. In my view, however, he has.
Writing for the majority, Justice Scalia:
The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. This is not, as the dissent charges, post, at 25, nothing more than “knowledge-based intent.”
He adds a caveat in the final paragraph of the decision which seems to limit the scope of this decision to the established facts of this particular case, but allows for further consideration of evidence that might show "the defendant's intent" that meets 6th amendment scrutiny.
The state courts in this case did not consider the intent of the defendant because they found that irrelevant to application of the forfeiture doctrine. This view of the law was error, but the court is free to consider evidence of the defendant’s intent on remand.
Nevertheless, Breyer writes:
Regardless of a defendant’s purpose, threats, further violence, and ultimately murder, can stop victims from testifying. See id., at 769 (citing finding that batterers threaten retaliatory violence in as many as half of all cases, and 30 percent of batterers assault their victims again during the prosecution). A constitutional evidentiary requirement that insists upon a showing of purpose (rather than simply intent or probabilistic knowledge) may permit the domestic partner who made the threats, caused the violence, or even murdered the victim to avoid conviction for earlier crimes by taking advantage of later ones...I can find no history, no underlying purpose, no administrative consideration, and no constitutional principle that requires this result.
It's a rather convoluted ruling (hinging on the meanings of "intent" and "purpose"), but let's hope the analysis so far of this decision, that it is limited to the Giles case in California, is correct and is not, as domestic violence opponents argue, a decision which could actually encourage domestic abusers to kill their victims in the hope of silencing said very witnesses against them.

The case is Giles v. California (2008).

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