FRE 804

On September 29, 2002, Dwayne Giles shot his ex-girlfriend Brenda Avie six times outside the garage of his grandmother’s house. Giles’ niece heard the two speaking in conversational tones before Avie yelled “Granny” several times and a series of gunshots sounded. Giles’ niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie had not been carrying a weapon. Giles fled the scene and was apprehended by police about two weeks later. Three weeks before the shooting, Avie spoke to a police officer responding to a domestic-violence report. 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. At trial, prosecutors sought to introduce these statements. Over Giles’ objection, the trial court admitted them under California Evidence Code section 1370. Giles testified that he had acted in self-defense. 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. A jury convicted Giles of first-degree murder. While Giles’ appeal was pending, the Supreme Court decided Crawford v. Washington. 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. The California Supreme Court affirmed on the same ground. The U.S. Supreme Court granted certiorari.

The events that led to Leon Chambers' prosecution occurred on Saturday evening, June 14, 1969, in the small town of Woodville, Mississippi. Two Woodville policemen entered a local bar and pool hall to execute a warrant for the arrest of C. C. Jackson. Jackson resisted and a hostile crowd of some 50 or 60 persons gathered. During the commotion five or six pistol shots were fired. Officer Liberty was shot several times in the back. Liberty fired both barrels of his riot gun into an alley and hit Leon Chambers in the back of the head and neck. Chambers' friends James Williams, Berkley Turner, and Gable McDonald transported the wounded Chambers to the hospital. Chambers was subsequently charged with Liberty's murder. He pleaded not guilty and has asserted his innocence throughout. In November 1969 Gable McDonald gave a sworn confession to Chambers' attorneys admitting that he shot Officer Liberty with his .22-caliber revolver. One month later at a preliminary hearing McDonald repudiated his prior sworn confession. He testified that Reverend Stokes had persuaded him to confess and had promised that he would not go to jail and would share in the proceeds of a lawsuit Chambers would bring against the town of Woodville. At trial in October of the following year after a change of venue to Amite County Chambers called McDonald as a witness and introduced the sworn confession into evidence. The trial court denied Chambers' request to examine McDonald as an adverse witness under the voucher rule. Chambers attempted to introduce the testimony of Sam Hardin, Berkley Turner, and Albert Carter regarding McDonald's additional confessions to them but the court excluded this evidence as hearsay. The jury convicted Chambers of murder and sentenced him to life imprisonment. The Mississippi Supreme Court affirmed the conviction. The United States Supreme Court granted certiorari to consider whether petitioner's trial was conducted in accord with principles of due process under the Fourteenth Amendment.

On April 12, 1982, John Foster was brutally assaulted while on duty as a correctional counselor at the federal prison in Lompoc, California. His attacker beat him repeatedly about the head and upper body with a metal pipe, inflicting numerous and permanently disabling injuries, one of which was a profound loss of short-term memory. Foster spent nearly a month in the hospital recuperating from his injuries, much of that time in a state of semiconsciousness. In an interview during his hospitalization on May 5, 1982, Foster selected respondent James Owens’ photograph from an array of possible suspects and informed FBI Agent Thomas Mansfield that it was respondent who had attacked him. Foster testified that at the time he made these statements, he was certain that his memory was accurate. He also recalled choosing respondent’s photograph from those Mansfield showed him. By the time of respondent’s trial in December 1983, Foster could no longer remember who had assaulted him or even whether he had seen his attacker. Nor could he recall whether any of the prison officials or other persons who visited him in the hospital had ever suggested that respondent had beaten him. A medical expert who testified on behalf of the prosecution explained that Foster’s inability to remember most of the details of the assault was attributable to a gradual and selective memory loss caused by his head injuries. The government introduced evidence of Foster’s May 5, 1982 out-of-court identification at trial. Defense counsel cross-examined Foster, but his memory loss precluded any inquiry into whether he had actually seen his assailant, whether he had an opportunity to see him, or whether hospital visitors had suggested respondent’s name to him.