Giles v. California involve a fairly narrow disagreement over a fairly narrow issue - but it shows us a lot about the Supreme Court. We think it makes a good prelude to Heller.
Giles is about the Confrontation Clause of the 6th Amendment of the Constitution ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted by the witnesses against him.") For years, the Supreme Court had taken this to mean that "hearsay" testimony could be OK in a criminal prosecution if it was "reliable."
A few years ago, Judge Scalia spurred a minor revolution by changing re-interpreting the clause. In Scalia's view, the right to confrontation meant no more and no less that what the Framers of the Constitution thought it did. Like a lot of recent Scalia decisions, this development was generally good for criminal defendants, and generally bad for prosecutors, because it (usually) made it harder to introduce hearsay testimony.
There are no exceptions to the right to "confront" witnesses in the clause itself. But according to Scalia, there are some exceptions - because the framers understood that there were exceptions. According to Scalia, the Framers recognized two basic exceptions - "dying declarations" and "forfeiture by wrongdoing."
Giles is about "forfeiture by wrongdoing." Some examples of forfeiture are clear. For example, if you threaten to kill a witness if he testifies against you in court, and then the witness doesn't appear, you have forfeited your right to confront (cross-examine) that witness at your trial. The prosecutor would then be OK introducing statements that witness made to other people (a police officer, for example) without having to worry about the constitution.
Giles involved a situation that was a bit less clear. Giles was being prosecuted for murder. To prove that Giles had committed murder, the prosecutor introduced damaging statements made by Giles' wife. Giles wasn't able to confront his wife at trial because she was dead. The wife, you see, was the person that Giles was accused of killing.
This case is like an O. Henry story. The narrow question is whether "forfeiture by wrongdoing" applied here. Does the "wrongdoing" that kept the witness from testifying (in this case, the alleged murder) need to have been designed to keep the witness from testifying? Or is it enough that the wrongdoing resulted in the witnesses absence from trial?
Scalia wrote the opinion. Remember, in his view, the only way to answer this question is to determine what the framers of the constitution thought. Unfortunately, the framers were not kind enough to provide posterity with a set of FAQs about the meaning of the constitution. In fact, it doesn't appear that the Framers provided any particularly detailed contemporary explanation of the Confrontation clause.
(There are many other issues here. Whose opinions count? The drafters of the constitution? The authors of the Federalist Opinions? The states that ratified the constitution? What if there were disagreements? Whose opinions mattered more? And the bigger issue - even if we can assume that the framers had a particular opinion on the meaning of the constitution, how do we know that they intended this meaning to be binding on future generations? We have yet to see Mr. Scalia offer definitive answers to these questions - and don't wish to wade into them right now ourselves).
The way that Scalia divines the "original meaning" of the Constitution under these circumstances is to study the "common law" as it existed in the late 18th century. The theory is that the rights in the constitution were based on rights already existing in the law of England and America. The Framers, thus, understood the rights as the "common law" did.
So Scalia's opinion is an extensive discussion of old cases - mostly from England, and some over three hundred years old. Scalia's conclusion is that the cases say the doctrine by forfeiture requires a finding that the defendant's wrongdoing was designed to keep the witness from trial. This is good news for Giles, who may get a new trial out of the deal.
We'll pose a question: Is Scalia's method of analysis the best way to decide Constitutional issues in the 21st century? Consider a few things. First, the "common law" isn't some list of rules and laws set down in a book somewhere. Instead, it consists of thousands of different decisions made by different judges over a period of hundreds of years. The judges who made these decisions looked at decisions made by other judges (only some of which were recorded) - but adapted them to their own circumstances, and sometimes changed them. It's not always easy to figure out what the "common law" held at any given point in time. It's particularly hard to do with an issue as narrow as the one presented by the Giles case.
Is it really surprising that judges in the 21st century might disagree over what the common law meant in the 18th century? Breyer writes a dissent (joined by Stevens and Kennedy) in which he looks at the same materials as Scalia, but comes to a different result.
Who's correct? Scalia or Breyer? We don't know - the issue would require more study than we're able to devote to it. As a defense attorney, we like the result in Scalia's opinion better. But we were struck by this passage in Breyer's dissent:
I also recognize the possibility that there are too few old records available for us to draw firm conclusions. Indeed, the "continuing confusion about the very nature of the law of evidence at the end of the eighteenth century underscores how primitive and undertheorized the subject then was." See J. Langbein, The Origins of Adversary Criminal Trial 248 (2003).
Breyer's only discussing 18th century evidentiary law here. But might the principle be extended to the common law in general? To any attempt to divine the intent of the framers?
THREE CHEERS FOR JUDGE SOUTER: In a concurrence, he actually explains why Scalia's result might make more sense (a question that Scalia himself is not greatly concerned with)
As the Court demonstrates, the confrontation right as understood at the Framing
and ratification of the Sixth Amendment was subject to exception on equitable grounds for an absent witness's prior relevant, testimonial statement, when the defendant brought about the absence with intent to prevent testimony. It was, and is, reasonable to place the risk of untruth in an unconfronted, out-of-court statement on a defendant who meant to preclude the testing that confrontation provides. The importance of that intent in assessing the fairness of placing the risk on the defendant is most obvious when a defendant is prosecuted for the very act that causes the witness's absence, homicide being the extreme example. If the victim's prior statement were admissible solely because the defendant kept the witness out of
court by committing homicide, admissibility of the victim's statement to prove guilt would turn on finding the defendant guilty of the homicidal act causing the absence; evidence that the defendant killed would come in because the defendant probably killed. The only thing saving admissibility and liability determinations from question begging would be (in a jury case) the distinct functions of judge and jury: judges would find by a preponderance of evidence that the defendant killed (and so would admit the testimonial statement), while the jury could so find only on proof beyond a reasonable doubt. Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying.
Q: Why did the defendant kill his wife? A: So she couldn't testify at his murder trial! Yes, something seems a bit wrong there. Joseph Heller might have written about this.
NEXT: We discuss the "other" Heller.