James F. Flanagan
Giles v. California
Giles v. California, 128 S.Ct. 2786 (2008) is the third case in which the Supreme Court addressed the Confrontation Clause of the Sixth Amendment. In Crawford v. Washington, 451 U.S. 36, (2004) the Court held that the Confrontation Clause applied only to "testimonial hearsay" which is admisible only if the testifying 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 involved the major exception to Crawford's requirement that testimonial hearsay be subject to cross examination, the doctrine of forfeiture by wrongdoing mentioned in Crawford. All agree that a defendant can lose the right to confront a witness by deliberately preventing the witness from appearing at trial, thereby making the absent witness's hearsay statements admissible. The issue in Giles is whether the exception for forfeiture by wrongdoing is limited only to deliberate witness tampering, or whether it may be applied to any defendant who proximately caused the witness's absence. Giles was 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 victim's hearsay statement to the police was critical to the conviction.
In June 2008 the Supreme Court held, 6-3 that forfeiture by wrongdoing required a showing of intent to prevent the witness from testifying, adopting the view Professor Flanagan had advocated in articles published before the issue arose in the Supreme Court. Dwayne Giles was granted a new trial in 2009 and upon retrial was convicted and the conviction was affirmed on appeal. 2012 WL 130659 (unreported)
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