EvidenceProf Blog

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

Wednesday, September 12, 2012

Unauthorized Transfer, Take 3: Justice Scalia's Giles Opinion & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Justice Scalia: I had thought that the common law rule is that you have to have rendered the...intentionally rendered the witness unavailable with regard to the particular trial that’s before the court.

Not rendering the witness unavailable for some other litigation.

Mr. Burkhardt: That was--

Justice Scalia: Do you know of any case where it was some other litigation that--

Mr. Burkhardt: --No.

Justice Scalia: --I didn't think so.

Mr. Burkhardt: No.

That is the common law

Exchange between Justice Scalia and petitioner's attorney Marilyn Burkhardt during oral argument in Giles v. California.

Based on this exchange, you might think that Justice Scalia, who wrote the plurality opinion in Giles, believes that forfeiture by wrongdoing is simply a witness tampering rule and would not support the transferred intent doctrine of forfeiture by wrongdoing applied in the prosecution of Drew Peterson.

But the Justice's opinion reveals something quite different. Here's footnote 6 of Justice Scalia's opinion:

The dissent identifies one circumstance—and only one—in which a court may determine the outcome of a case before it goes to the jury: A judge may determine the existence of a conspiracy in order to make incriminating statements of co-conspirators admissible against the defendant under Federal Rule of Evidence 801(d)(2)(E). Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), held that admission of the evidence did not violate the Confrontation Clause because it "falls within a firmly rooted hearsay exception"—the test under Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the case that Crawford overruled. In fact it did not violate the Confrontation Clause for the quite different reason that it was not (as an incriminating statement in furtherance of the conspiracy would probably never be) testimonial. The co-conspirator hearsay rule does not pertain to a constitutional right and is in fact quite unusual.  

We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent.

Yes, Justice Scalia said what he said during oral argument, but...how can we read this footnote as anything else than an endorsement of the transferred intent doctrine of forfeiture by wrongdoing. Justice Scalia is clearly saying that when a defendant kills a witness to prevent him from testifying at Trial A (e.g., a robbery trial), the doctrine of forfeiture by wrongdoing might apply to allow the prosecution to admit the witness's statements at Trial B (the defendant's trial for murdering witness).

Moreover, I think that Justice Scalia's reasoning might actually make some sense, contrary to my prior post on the issue. Why? Well, I'm tapping out an essay on the issue that I hope to have finished by early next week. 



| Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Unauthorized Transfer, Take 3: Justice Scalia's Giles Opinion & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing:


I can't see how to read Scalia's footnote any other way? It seems relatively clear he's discussing transferred intent.

Thanks for all the posts. This has been a fun discussion.
There appears to be an article, "Thoughts About Giles and Forfeiture in Domestic Violence Cases", available on LexisNexis. It's 75 Brooklyn L. Rev. 1329.
It appears to take the position that when evidence of DV is presented, transferred intent is permitted under Giles in a subsequent murder trial.
However, I have limited access due to my Westlaw account.

- Matt

Posted by: Matt | Sep 12, 2012 9:02:22 AM


I hope you are planning to discuss the applicability of the doctrines of transferred intent and forfeiture by wrongdoings to the Peterson case in your essay because this case actually spearheadad the legal discussion of these matters.

A few posts ago (in a different thread), I posited the notion that the forfeiture by wrongdoins act was inaptly applied in the Peterson case - even assuming arguendo that transferred intent doctrine does apply. I have cut and pasted my thoughts below and curious if you agree:

1. As applicable to the Peterson case and Stacy, I think we are both in agreement that the admission of Harry Smith's, double hearsay testimony re: what Stacy purportedly told Harry about what Drew purportedly told Stacy forms an excellent basis for appeal because 1.) Stacy was arguably was not killed to prevent her testimony "as a witness" in any pending case against him and 2.) even if Drew did kill Stacy in anticipation of the Savio case, for which he was not yet charged at the time of her killing, he gained no ostensible legal adavantage by killing her (the very reason for allowing the declarations of an unavailable witness whose unavailibily was caused by defendant) because Drew could have kept Stacy off the stand anyway. Anything Stacy would have testified about could have only been gleaned from confidential, marital communications, and Drew could prevented Stacy from testifying about this even if she wanted.

2. As applicable to the Peterson case and Kathleen, I query whether the trial court made a proper finding that Drew killed Kathleen to prevent her from being "a witness" in the divorce proceeding - the triggering event to the forfeiture by wrongoings doctrine. He might have killed her to prevent her from "getting his pension" and "forcing him to pay child support" as some witnesses testified, but this is not the same as kiling her from serving "as a witness." Absent her being killed to prevent her "witness testimony," the doctrine of forfeiture could never apply - in the divorce or criminal case (assuming transferred intent is allowed).


Posted by: Barry | Sep 12, 2012 11:13:40 AM

Matt: That is indeed the claim, and the same claim was made on SCOTUSblog immediately after Giles was decided.


As I noted then, though, I don't see any reason to limit that analysis to DV cases.

Posted by: Colin Miller | Sep 13, 2012 6:11:25 AM


1. I don't dig too deeply into the reasoning of the Appellate Court, but I do acknowledge in a footnote that the factual findings of the court are tenuous. The piece is more about the general notion that there is a transferred intent doctrine of forfeiture by wrongdoing.


You discuss "legal advantage" as the sine qua non of a forfeiture claim, and I would have agreed with you a few days ago. But in re-reading Justice Scalia's opinion, I realized that he dispenses with "benefit" as a forfeiture rationale, focusing instead on intent and the integrity of the trial process.

2. I'm not sure that these 2 things are meaningfully different. Wouldn't killing Savio to prevent her from testifying at the hearing be a way to prevent her from getting his pension, etc.?

Posted by: Colin Miller | Sep 13, 2012 6:16:48 AM


I do believe the forfeiture doctrine is rooted in the concept that a defendant should not be allowed to gain an unfair advantage at trial by making a witness unavailable for trial.

As you, Scalia and the plurailty have noted, the forfeiture doctrine ensures if a defendant makes a witness unavailable for trial (kills her) our system of jurisprudence will allow her to speak from the grave (via hearsay testimony of others) "to preserve the integrity of the trial process."

However, if one makes a putative witness unavailable and gains no "unfair advantage," it appears to me, the "integrity of th trial process" is preserved. A classic example of making a witness unavailable and NOT gaining an unfair trial advantage is when the defendant could keep the witness off the stand anyway (i.e., by objecting to the witness testifying as to confidential martial communications) - even if she were alive.

As to your question: "Wouldn't killing Savio to prevent her from 'testifying at the hearing' be a way to prevent her from getting his pension." I think not, and if I were representing Peterson in the appeal (and I am not), I would argue that the condition precedent to her being awarded a portion of his pension (and child support) is that she simply remain alive - not that she testify against him. In short, Peterson may have benefited in his divorce case because Kathleen was no longer "a party" to rhe case, not because she was not "a witness."

I have enjoyed our disussions on the subject and look forward to reading your essay.


Posted by: Barry | Sep 13, 2012 10:03:15 AM

Barry: Consider the analogy to the crime-fraud exception, which I mention in my article. Both the crime-fraud exception and forfeiture by wrongdoing are aimed at deterring conduct that would deter the integrity of the trial process. If we want to get maximum deterrence, how do we achieve that goal? The crime-fraud exception applies (1) regardless of whether the defendant derives any benefit from seeking to use his attorney's advice to perpetrate a crime or a fraud; and (2) in any future trial, regardless of whether it is related to the advice sought by the defendant. I think this makes sense. Could you imagine a world in which (1) the crime-fraud exception only applied if the defendant actually used the attorney's advice to successfully commit a crime or fraud, and/or (2) the exception applied at a first trial, but the defendant could then assert attorney-client privilege at subsequent trials?

For me, the same reasoning applies to forfeiture by wrongdoing. If the goal is deterrence, why shouldn't we focus on intent rather than benefit and find that it applies at all trials in which the witness's testimony would be relevant?

Posted by: Colin Miller | Sep 13, 2012 10:35:49 AM

Post a comment