Can the courts allow testimony from murder victims?

The Associated Press

What will the Supreme Court decide?

Featured Topic | Posted 13 weeks 2 days ago

Can the courts allow testimony from murder victims?

The Sixth Amendment gives criminal defendants the right to cross-examine witnesses against them. But what if the crime is murder -- and the witness is the murder victim? The U.S. Supreme Court on Tuesday heard arguments over whether juries should hear testimony of dead witnesses in such cases.

The case involves Dwayne Giles, who was convicted of the 2002 murder of his girlfriend in Los Angeles. Giles says his Sixth Amendment rights were violated because because a police officer had testified at his trial that the murder victim, Brenda Avie, had said Giles threatened to kill her. But prosecutors said Giles had forfeited his right by killing the witness, and that the law recognizes "that no one may profit from wrongdoing."

Should testimony be allowed when there's no chance of cross-examination? How should the court decide?

Ben likes: Confronting the 'confrontation clause'

Richard Friedman/Volokh Conspiracy

In Crawford v. Washington (2004), the Supreme Court dramatically changed its conception of the Confrontation Clause of the Sixth Amendment to the Constitution. The effects on criminal prosecutions will likely be very significant. Justice Scalia's opinion for seven justices in Crawford narrows the focus of the Confrontation Clause to statements that are considered "testimonial," but as to these the demand of the Clause is unequivocal: The statement cannot be admitted against an accused, no matter how reliable a court might consider it to be, unless the defendant has had an opportunity to examine the maker of the statement.

Prosecutors afraid that witnesses who have made favorable statements may not be available to testify at trial should no longer prepare to argue that the statements are reliable. Instead, they should arrange an early opportunity for the defendant to cross-examine.

For example, what are the consequences with respect to the admissibility of statements made in 911 calls, some of which seem more designed to create evidence than to secure immediate assistance? Should routine laboratory reports made in contemplation of prosecution be inadmissible if the technician does not testify? Shall statements to private persons, made in circumstances suggesting likely transmittal to the authorities, be considered testimonial? In what circumstances should a court find that an accused has forfeited the confrontation right, as by killing or intimidating the witness? The last two questions are particularly significant with respect to children, as are others: Shall some child declarants be considered at too early a stage of development, either cognitively or morally, to be considered witnesses?

Joel likes: The confrontation clause

Boalt Hall

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