Forfeit Victory, Take 7: Supreme Court Vacates Giles, With Key Analysis In a Footnote

The Supreme Court issued its opinion in Giles v. California today.  Justice Scalia wrote the majority opinion, which vacated and remanded the judgment of the Supreme Court of California.  In other words, the Court held that application of the forfeiture by wrongdoing doctrine requires a specific intent on the part of a criminal defendant to render a witness unavailable for trial (e.g., the witness tampering situation) and thus does not apply in a case where, for instance, a husband allegedly murders his wife and then stands trial for her murder. 

In my first pass through the opinion, it strikes me that the key holding in the majority opinion is buried in a footnote.  According to the majority opinion, the only way that it could have accepted the Supreme Court of California's non-specific intent formulation of the forfeiture by wrongdoing doctrine was if its formulation was a founding-era exception to the confrontation right.  Fair enough.  So, what was the founding-era exception?  According to the majority, it was the common law doctrine of "forfeiture by wrongdoing" derived from Lord Morley's Case, which allowed for the "introduction of statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant."  The majority opinion then notes that "[c]ases and treatises of the time indicate that a purpose-based definition of these terms governed" and cites two treatises and one case in alleged support.  The two treatises stated that the doctrine required that the defendant kept the witness away by the defendant's "means and contrivance" while the case required that the witness was "kept away by the contrivance of the opposite party."

There is, however, a large problem with this argument.  And that is that the case said nothing of the sort.  The case -- Drayton v. Wells, 10 S. C. L. 409, 411 (S.C. 1819) -- stated that there are "four cases only, in which the testimony of a witness who has been examined in a former trial, between the same parties, and where the point in issue was the same, may be given in evidence, on a second trial, from the mouths of other witnesses, who heard him give evidence:

1st. Where the witness was dead.

2nd. Where he was insane.

3rd. Where he was beyond seas; and

4th. Where the Court was satisfied that the witness had been kept away by the contrivance of the opposite party."

In other words, as far as I can tell, Drayton was at best tangentially related to the forfeiture by wrongdoing doctrine and, in fact, held that in some cases, the simple fact that the witness was dead allowed for the admission of his former testimony (case 1).  As for the treatises, I don't have access to them, so I can't tell you exactly what they state.

What I do know is that Morley itself said that the defendant merely needed to detain or keep away a witness by "means or procurement" and that, in the dissenting opinion, Justice Breyer cites to authorities such as Williams v. State, 19 Ga. 403 (Ga. 1856), in which courts/authors retained this "means or procurement" language.  According to the dissenting opinion, then, because the term "means" does not necessarily require a finding of specific intent and because Morley merely required "means or procurement[/contrivance]" and not "means and procurement[/contrivance]," the Supreme Court of California acted properly.

And you know what?  The majority opinion failed to disagree with this argument, at least in the body of the opinion.  In the body of its opinion, the majority acknowledges that "the term 'means' could sweep in all cases in which a defendant causes a witness to fail to appear," although "it can also connote that a defendant forfeits confrontation rights when he uses an intermediary for the purpose of making a witness absent."  So, where does the majority address the dissent's argument?  The answer can be found in footnote 1, where the majority notes the dissent's argument about the "means or procurement" language and states that "the authorities we cited resolve this ambiguity in favor of purpose by substituting for the 'means or procurement' of Lord Morley's Case either 'contrivance' or 'means and contrivance.'"

As I noted, though, the case cited by the majority certainly doesn't say this (does anyone have access to the other authorities?).  And I know from reading this article by my colleagues that many cases of the time also did not mean what Scalia thought they meant.  I'm sure that I will have more to say about this opinion in the coming days, but at this point, I firmly disagree with the majority's opinion.

-CM