United States Supreme Court (June 25, 2008)

When offering hearsay statements by an unavailable declarant under the "forfeiture by wrongdoing" doctrine, the state must establish not only that the defendant caused the absence of the declarant, but that he acted with the specific intent of keeping the witness from testifying.


In Crawford v. Washington, 541 U.S. 36, 62 (2004) the U.S. Supreme Court recognized the rule of "forfeiture by wrongdoing," under which "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right of confrontation," and that this rule "extinguishes confrontation claims on essentially equitable grounds."

The issue in this case was whether, in offering hearsay statements of an unavailable declarant under this doctrine, the state must prove not only that the defendant caused the witness's unavailability (in this case, by murder) but also that the defendant's actions were done for the purpose of preventing the witness from testifying. The United States Supreme Court answered affirmatively.

The Facts

Giles was charged and convicted of murdering his ex-girlfriend outside the garage of his grandmother's house. No witness saw the shooting, but the defendant's niece heard them speaking, and heard the gunshots. After running into the garage, the niece observed the defendant standing near the victim with a gun in his hand. The victim was unarmed and was shot 6 times. At trial (pre- Crawford), the defendant admitted that he shot the victim, but argued that he acted in self-defense. In relating his version of the events, the defendant repeated statements allegedly made by the victim. He testified that the victim had a history of violent behavior and that, after arriving at his grandmother's house, she threatened to kill him and his new girlfriend. He also testified that since he was afraid, he retrieved a loaded gun from the garage and that when the victim "charged" at him, he closed his eyes and shot her because he thought she had something in her hand.

Over the defendant's objection, a police officer testified that approximately three weeks before the murder he had responded to a domestic violence call involving the defendant and the victim. He testified that the victim was crying, and she told the officer that the defendant had accused her of infidelity and assaulted her, choked her, punched her in the face and head, and threatened her with a knife, stating, "If I catch you fucking around I'll kill you." The jury found the defendant guilty of murder.

The Appeal

During the appeal, Crawford was decided and the defendant argued that the victim's hearsay statements violated his Sixth Amendment right to confrontation. The California Appeals Court and Supreme Court affirmed the conviction, upholding the trial court's admission of the victim's prior statements to the officer. The Court rejected the defendant's attempt to limit the forfeiture by wrongdoing doctrine to circumstances where the defendant was motivated by a specific desire to prevent testimony. The California Supreme Court reasoned that the forfeiture doctrine was grounded in "the equitable principle that no person should benefit from his wrongful acts," which is equally applicable "whether or not the defendant specifically intended to prevent the witness from testifying." The defendant appealed to the U.S. Supreme Court.


In a split decision, the Court held that the forfeiture by wrongdoing doctrine was not an exception to the Sixth Amendment's confrontation requirement since it was not an exception "established at the founding." Prior cases and treatises indicated that the forfeiture rule only applied when the defendant engaged in conduct designed to prevent the witness from testifying. Therefore, the majority held that the state must establish that the defendant acted with the specific intent to keep the witness from testifying, in order to prove that he had forfeited his right to confrontation. Only then can the state introduce the unavailable witness' testimonial hearsay statements.

In order to prove this intent, at least five justices agreed that evidence of a history of domestic violence - - "the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process," - - meets this intent requirement. In his opinion, Scalia (joined by the majority) indicated the significant relevance of acts of domestic violence in proving a defendant's intent to keep a witness from testifying:

"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 a 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."

The U.S. Supreme Court reversed and remanded the decision since the California courts did not consider the defendant's intent under this analysis.