James F. Flanagan
Oliver Ellsworth Professor of Federal Practice
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Contact Information
Room 317
USC School of Law
701 Main Street
Columbia, South Carolina 29208
v 803-777-7744
f 803-777-8613
flanagjf@gwm.sc.edu
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USC School of Law Professor Files Brief in United States Supreme Court
Synopsis of the Issue in Giles v. California
Giles v. California, No. 6053, opinion below, 152 P.3d 433 (2007), is the third case in which the Supreme Court will address the Confrontation Clause of the Sixth Amendment. In Crawford v. Washington, 451 U.S. 36 (2004), the Supreme Court overruled Ohio v. Roberts, 448 U.S. 56 (1980), in which the Court held that hearsay was admissible so long as it was reliable. According to Crawford, the Confrontation Clause applies only to testimonial hearsay, which is admissible only if the witness is unavailable and the defendant had an opportunity to cross examine the witness. Davis v. Washington, 547 U.S. 813 (2006), defined testimonial hearsay generally to include statements made to the police, in non emergency situations, who are investigating the case for prosecution.
Giles involves the major exception to Crawford’s requirement that testimonial hearsay be subject to cross examination the rule of forfeiture by wrongdoing. The Court previously held in Reynolds v. United States, 98 U.S. 145 (1879), that a defendant can lose the right to confront a witness by deliberately acting to prevent the witness from appearing at trial. The issue in Giles is whether the exception for forfeiture by wrongdoing is limited only to deliberate witness tampering, as in Reynolds, or whether it may be applied to any defendant who proximately caused the witness’s absence. Giles is a domestic homicide case in which there is no evidence of witness tampering, but the petitioner’s homicide was the reason that the victim did not appear to testify in person. The decision will have major ramifications for the admission of testimonial hearsay statements of victims of homicides, as well as crimes in which the witnesses are able to testify, but are reluctant, or refuse to appear for various reasons. The argument is scheduled for April 22, 2008, with the opinion expected in June.
For more information see:
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