554 U.S. 353 (2008)
On September 29, 2002, Dwayne Giles shot his ex-girlfriend Brenda Avie six times outside the garage of his grandmother’s house.1
Giles’ niece heard the two speaking in conversational tones before Avie yelled “Granny” several times and a series of gunshots sounded.2 Giles’ niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand.3 Avie had not been carrying a weapon.4 Giles fled the scene and was apprehended by police about two weeks later.5
Three weeks before the shooting, Avie spoke to a police officer responding to a domestic-violence report.6 Avie, who was crying, told the officer that Giles had accused her of having an affair, grabbed her by the shirt, lifted her off the floor, choked her, punched her in the face and head, and threatened her with a folding knife.7 At trial, prosecutors sought to introduce these statements.8 Over Giles’ objection, the trial court admitted them under California Evidence Code section 1370.9
Giles testified that he had acted in self-defense.10 He described Avie as jealous and violent, said she had threatened to kill him and his new girlfriend on the day of the shooting, and claimed she charged at him before he fired.11 A jury convicted Giles of first-degree murder.12 While Giles’ appeal was pending, the Supreme Court decided Crawford v. Washington.13 The California Court of Appeal held that admission of Avie’s statements did not violate the Confrontation Clause because Giles had forfeited his confrontation right by committing the murder.14 The California Supreme Court affirmed on the same ground.15 The U.S. Supreme Court granted certiorari.16
Whether a defendant forfeits his Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial?17
The Sixth Amendment’s Confrontation Clause is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.18
No. The common-law forfeiture-by-wrongdoing doctrine required a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent but had not done so to prevent the person from testifying, the testimony was excluded unless it was confronted or fell within the separate common-law exception for dying declarations. Prosecutors did not argue that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial.19 Here the state courts did not consider Giles’ intent, which they found irrelevant under their interpretation of the forfeiture doctrine.20
The California Supreme Court’s theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the time of the founding.
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Joined by Justices Stevens And Kennedy
Justice Breyer dissented. He argued that the forfeiture rule applies when the defendant’s wrongful act renders the witness unavailable regardless of purpose.21 The language of common-law cases was broad enough to cover murder.22
Equitable principles support admission when the defendant knows the consequence of his act will be the witness’s absence.23 Breyer emphasized that domestic violence cases often involve prior abuse intended to isolate the victim.24 Requiring purpose creates practical problems and evidentiary anomalies.
The majority’s rule can create incentives to commit further crimes and produces strange anomalies in which a defendant who kills to prevent testimony may keep the confrontation right while one who kills for other reasons may lose it.
Whether the common-law forfeiture-by-wrongdoing doctrine permitted admission of unconfronted statements only when the defendant engaged in conduct designed to prevent the witness from testifying?25
The terms used to define the scope of the forfeiture rule at common law indicate that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying.26
Yes. The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.27 In cases where the evidence suggested that the defendant had caused a person to be absent but had not done so to prevent the person from testifying, the testimony was excluded unless it was confronted or fell within the dying-declaration exception. No case before 1985 applied forfeiture to admit statements outside the context of conduct designed to prevent a witness from testifying.28
The common-law forfeiture-by-wrongdoing doctrine permitted admission of unconfronted statements only when the defendant engaged in conduct designed to prevent the witness from testifying.29
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Joined by Justice Ginsburg
Justice Souter concurred in part. He agreed that the historical analysis supports requiring intent to prevent testimony before the confrontation right is forfeited.30 Equity demands something more than near circularity before the right is forfeited.31
The element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship meant to isolate the victim from outside help.32 If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim.
Whether California’s theory of forfeiture by wrongdoing was an exception to the confrontation right established at the time of the founding?
Not only was California’s proposed exception to the confrontation right plainly not an exception established at the time of the founding, it is not established in American jurisprudence since the founding.33
No. American courts never invoked forfeiture outside the context of deliberate witness tampering prior to 1985. This Court first addressed forfeiture in Reynolds v. United States in a case where the defendant had engaged in wrongful conduct designed to prevent a witness’s testimony.34 The earliest case identified by the litigants and amici curiae which admitted unconfronted statements on a forfeiture theory without evidence that the defendant had acted with the purpose of preventing the witness from testifying was decided in 1985.35
California’s theory of forfeiture by wrongdoing was not an exception to the confrontation right established at the time of the founding.
Whether the forfeiture doctrine applies to admit unconfronted statements when the defendant’s wrongful act caused the witness’s unavailability without a showing of intent to prevent testimony?36
The forfeiture doctrine does not apply to admit unconfronted statements when the defendant’s wrongful act caused the witness’s unavailability without a showing of intent to prevent testimony.37 The view that the exception applies only when the defendant intends to make a witness unavailable is supported by modern authorities such as Federal Rule of Evidence 804(b)(6).38
No. The state courts did not consider Giles’ intent, which they found irrelevant under their interpretation of the forfeiture doctrine. Acts of domestic violence are often intended to dissuade a victim from resorting to outside help.39 A defendant’s prior abuse or threats of abuse intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant’s subsequent act causing the witness’s absence.40 The state courts are free to consider intent on remand.41
The forfeiture doctrine does not apply to admit unconfronted statements when the defendant’s wrongful act caused the witness’s unavailability without a showing of intent to prevent testimony.
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Justice Thomas concurred in the judgment. He adhered to his view that statements like those made by the victim in this case do not implicate the Confrontation Clause.42 The contested evidence is indistinguishable from the statements made during police questioning in response to the report of domestic violence in Hammon v. Indiana.43
The police questioning was not sufficiently formal to resemble the Marian examinations.44 There is no suggestion that the prosecution attempted to offer the hearsay evidence at trial in order to evade confrontation.45 Because the Court’s opinion accurately reflects our Confrontation Clause jurisprudence where the applicability of that Clause is not at issue, he joined the Court in vacating the decision below.
Justice Alito joined the Court’s opinion. He wrote separately to make clear that, like JUSTICE THOMAS, he is not convinced that the out-of-court statement at issue here fell within the Confrontation Clause in the first place.46 It is not at all clear that Ms. Avie’s statement falls within the category of statements made by witnesses.47
The question whether Ms. Avie’s statement falls within the scope of the Clause is not before the Court.48 Assuming for the sake of argument that the statement falls within the Clause, he agreed with the Court’s analysis of the doctrine of forfeiture by wrongdoing.