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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, July 1, 2008

Forfeit Victory, Take 10: Giles Opinion Reveals That "Testimonial" Dying Declarations Don't Violate The Confrontation Clause

While the Supreme Court's opinion last week in Giles v. California was primarily focused upon the forfeiture by wrongdoing doctrine, it also clarified that even "testimonial" dying declarations are not violative of the Confrontation Clause.  As I have noted before, in its seminal ruling in Crawford v. Washington, the Supreme Court stated in footnote 6 of its opinion that "[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis."

So, the Supreme Court did "not decide" whether "testimonial" dying declarations are admissible against a criminal defendant despite the Confrontation Clause, although it clearly hinted at such a finding.  In Giles v. California, however, the Court seemed to clearly come to such a conclusion. 

In the majority opinion, Scalia noted that the state's argument (and the California Supreme Court's holding) was that application of the forfeiture by wrongdoing doctrine would not violate the Confrontation Clause if a defendant rendered a prospective witness unavailable to testify, even if the defendant did not specifically intend to render the prospective witness unavailable.  Scalia then indicated that the relevant question was "whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court [wa]s a founding era exception to the confrontation right."  He then answered the question in the negative, finding that there were only "two forms of testimonial statements...admitted at common law even though they were unconfronted."

     (1) "declarations made by a speaker who was both on the brink of death and aware that he was dying," and

     (2) "statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant."

Finding that the state's formulation of the forfeiture by wrongdoing doctrine was not consistent with either of these forms of testimonial statements, the Supreme Court declined to approve of the California Supreme Court's exception to the Confrontation Clause.

Of course, implicit in this holding, and the question posed by Justice Scalia, is that even "testimonial" dying declarations are indeed admissible without regard for the Confrontation Clause.  So, what exactly does that mean?

Well, take the upcoming murder trial of Clenton "Boo" Sanders in Nebraska.  The 23 year-old Sanders has been charged with murdering Patricia McCaskill, with prosecutors believing that Sanders killed her because, inter alia, she disapproved of his relationship with her teenage daughter.  Before trial, prosecutors moved to admit certain statements McCaskill made to a police officer after she had been shot.  Specifically, after telling the officer that she couldn't breathe, McCaskill told him, "Boo shot me."  When the officer asked McCaskill for the last name of her shooter, she responded, "Sanders."  The judge ruled that the officer could testify concerning these statements because they were dying declarations under Nebraska Rule of Evidence 804(2)(b), which allows for the admission of "[a] statement made by a[n] [unavailable] declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death."

If the Supreme Court had found that "testimonial" dying declarations violate the Confrontation Clause, there is a good chance that McCaskill's statements could not have been admitted against Sanders because they were possibly "testimonial" (in that they were made with the expectation and under circumstances suggesting that the statements would eventually be used in a criminal prosecution), and Sanders obviously had no opportunity to cross-examine her.  But, with the Supreme Court pretty clearly holding in Giles v. California that "testimonial" dying declarations are admissible without regard for the Confrontation Clause, there is no problem with the admission of McCaskill's statements.            

-CM

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