Nancy Lemon, DVP director, co-wrote an amici curiae brief submitted on March 26, and the Court will hear oral arguments on April 22.
"We argue that the Constitution does not protect defendants from the consequences of their own wrongful acts,” says Lemon, who has specialized in domestic violence issues since graduating from Boalt in 1980. "If a defendant's willful conduct causes the witness's unavailability he forfeits his confrontation right, making prior statements by the witness admissible.”
After Giles appealed, Lemon and Timna Sites '06 co-wrote an amicus curiae brief to the California Supreme Court, which affirmed the decision and said Giles waived his confrontation right by directly causing Avie's absence. The court invoked the "Rule of Forfeiture," which holds that people forfeit their right to confront a witness if their wrongful actions prevented that witness from testifying. As a result, hearsay testimony from the absent witness can be admissible at trial.
The hope among domestic violence groups is that the Court agreed to hear Giles to clarify that the Sixth Amendment does not exclude victim testimony if witness unavailability was a foreseeable consequence of the defendant's actions.
"For years we've been urging prosecutors to treat domestic violence cases like homicide cases and to assume they won't have a victim to testify,” Lemon says. "Prosecutors were making good progress on how to use the Rule of Forfeiture, and I fear we'll have fewer prosecutions if Giles is reversed. It's a crucial decision for domestic violence victims and also for abused children who often are afraid to testify in
