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This week, the United States Supreme Court narrowed the “forfeiture by wrongdoing” exception to the Sixth Amendment’s Confrontation Clause.  The Court vacated and remanded the California Supreme Court holding in Giles v. California, 2008 WL 2511298 (U.S., June 25, 2008) that a statement made by a victim to the police months before she was killed by the defendant was admissible under the common-law doctrine of “forfeiture by wrongdoing.” 

Giles was accused of murdering his ex-girlfriend. During his trial, the prosecution told the jury about a conversation police had with the victim, in which she said Giles had assaulted and threatened to kill her. Giles asserted that since the victim was deceased, he could not cross examine her, and thus, was denied his Sixth Amendment right to confrontation.  The California Supreme Court disagreed and admitted the victim’s statement under the forfeiture by wrongdoing exception to the Confrontation Clause.

In a 6-3 decision with the majority written by Justice Scalia, the Court found that California’s exception to the Confrontation Clause was too broad, and not an exception that existed when the Sixth Amendment was adopted.  The dissent, written by Justice Breyer and joined by Justices Stevens and Kennedy, argued that historical cases found that an exception applies and the evidence should be admitted.

As the Court noted, it has previously acknowledged an exception to the Confrontation Clause under the “forfeiture by wrongdoing” doctrine, which “permitted the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”  The underlying policy of the rule is that a defendant should not benefit from his wrongdoing by the exclusion of such testimony.  The exception, however, has been narrowly construed by the Court – relying on established common law at the time the Sixth Amendment was adopted – to apply only where the defendant’s purpose was to prevent the witness from testifying at trial, but not where the defendant merely caused the witnesses’ absence.

This Court first addressed the issue in Reynolds v. United States, 98 U. S. 145 (1879) where it held the testimony of a witness from the defendant’s prior trial was admissible where the defendant had kept his wife away from home so that she could not be served with a subpoena to testify.  The doctrine was codified in 1997 when the Court approved FRE 804(b)(6), entitled “forfeiture by wrongdoing.”  In its holding, the Court relied principally on the countless common law cases consistently excluding the admission of such testimony “in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony.”