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Domestic Violence Practicum Confronts Confrontation Clause Before U.S. Supreme Court

In a case with potentially major implications for victims of domestic abuse, the U.S. Supreme Court is expected to clarify the right of criminal defendants to confront witnesses against them.

Boalt Hall's Domestic Violence Practicum (DVP) remains deeply involved with the case, People v. Giles, in which murder defendant Dwayne Giles claims that admitting his deceased victim's out-of-court statements violates the Sixth Amendment's Confrontation Clause. Nancy Lemon, DVP director, co-wrote an amici curiae brief submitted on March 26, and the Court will hear oral arguments on April 22.

"We argue that the Constitution does not protect defendants from the consequences of their own wrongful acts,” says Lemon, who has specialized in domestic violence issues since graduating from Boalt in 1980. "If a defendant's willful conduct causes the witness's unavailability he forfeits his confrontation right, making prior statements by the witness admissible.”

Giles confessed to killing his ex-girlfriend, Brenda Avie, but said it was done in self-defense. Prosecutors introduced evidence of a police interview with Avie several weeks before her death, when officers came to investigate a report of domestic violence. She told them Giles had assaulted her and threatened to kill her while brandishing a knife. At trial, Avie's statements were admitted and Giles was convicted, although he argued the police testimony was inadmissible because he could not face Avie in court.

Invoking the Rule of Forfeiture

After Giles appealed, Lemon and Timna Sites '06 co-wrote an amicus curiae brief to the California Supreme Court, which affirmed the decision and said Giles waived his confrontation right by directly causing Avie's absence. The court invoked the "Rule of Forfeiture," which holds that people forfeit their right to confront a witness if their wrongful actions prevented that witness from testifying. As a result, hearsay testimony from the absent witness can be admissible at trial.

By examining how early U.S. and English courts treated the Rule of Forfeiture, which has roots dating back to Olde English case law, DVP student Katherine Kasameyer '08 recently contributed valuable research to Lemon's U.S. Supreme Court brief.

"Katherine did a tremendous job,” says Lemon. "In addition to the historical research, she also found several contemporary cases with similar fact patterns and victims who even went so far as to tell friends, ‘If I'm missing or found dead next week, open this envelope.' Defendants in these instances often claim accident, mistake, or self-defense in an effort to keep their victim's prior statements out of the courtroom. Statements, letters and diary notations by deceased victims thus are key evidence to rebut the defendants' claims.”

Grappling with Case Law

Questions linger on how the Supreme Court will rule. In Crawford v. Washington (2004), it limited the admissibility of out-of-court "testimonial” statements from unavailable witnesses unless they were subject to cross-examination. In 2006, it issued a split decision in companion domestic violence cases where the victims did not testify. A 911 call was admitted in Davis vs. Washington because it was a plea for present help with an immediate problem; but where a 911 call prompted a police interview in Hammon v. Indiana, interview statements were inadmissible because they were made after the danger had ended.

Lemon questions the Court's statement that the danger was over in Hammon: "In that situation, everyone who has worked in domestic violence knows that as soon as the police leave the victim usually gets beaten up again,” she says. "And if the victim called law enforcement, she often gets beaten worse than she did during the initial attack that led her to call 911.”

The hope among domestic violence groups is that the Court agreed to hear Giles to clarify that the Sixth Amendment does not exclude victim testimony if witness unavailability was a foreseeable consequence of the defendant's actions.

"For years we've been urging prosecutors to treat domestic violence cases like homicide cases and to assume they won't have a victim to testify,” Lemon says. "Prosecutors were making good progress on how to use the Rule of Forfeiture, and I fear we'll have fewer prosecutions if Giles is reversed. It's a crucial decision for domestic violence victims and also for abused children who often are afraid to testify in court.”

— By Andrew Cohen 4/08/08





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