Bench Memos

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“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” So reads (in part) the Sixth Amendment. In his prosecution for First Degree Murder Dwayne Giles did not “confront” one of the “witnesses against him,” because he had (as the jury subsequently found) killed her. The victim-witness whose out-of-court statement was received into evidence was Brenda Avie, Giles’ ex-girlfriend. Three weeks before she was murdered, a tearful Avie told a police officer who responded to her emergency call that Giles had assaulted and threatened to kill her. This hearsay was relevant at Giles’ murder trial because it tended to rebut Giles’ claim that he acted in self-defense.

The issue in the case of Giles v. California, decided this morning by the Supreme Court, was whether receipt of this hearsay violated the Confrontation Clause (above). The Court’s precedents, primarily the 2004 decision in Crawford v. Washington, basically established that the issue depended on whether there was an exception to the right of confrontation at the time of the founding which included a hearsay statement like Ms. Avie’s. The only exception in the vicinity was one for witnesses whose absence was procured or arranged by the defendant himself. A majority of the Court, in an opinion by Scalia, held that this exception pertained only to acts which were designed by the defendant to keep the witness away from trial. Because that was not the case here, the Court vacated Giles’ conviction, and remanded the case for a new trial.

The dissenting Justices — Breyer, Stevens, Kennedy — would have read the longstanding exception to include acts (such as Giles) which, in fact, caused the witness to be unavailable.

No “design” to obstruct trial testimony was needed.

The Giles case was presented to the Court (essentially) on the stipulation that Avie’s statement to the responding officer was “testimonial” and thus within the protections of the Confrontation Clause. Justices Thomas and Alito entered brief concurrences, each making clear that he doubted the correctness of the stipulation. As Alito said: “The Confrontation Clause does not apply to out-of-court statements unless it can be said that they are the equivalent of statements made at trial by witnesses”.

Justices Souter and Ginsburg joined all but a small portion of Scalia’s opinion. They sought to separate themselves from (what they considered to be) Scalia’s embrace of an over-determined historical record; the old materials were not quite “finely… calibrated” enough to answer the question with as much confidence as Scalia exhibited. These two Justices also showed some sympathy for the dissenters’ policy argument in favor of a broader and more flexible reading of the historical materials, an argument keyed to the problems of prosecuting domestic abuses cases today.

Even so, probably the most remarkable feature of Giles v. California is that all nine Justices behaved (more or less, but all to a great degree) as originalists.


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