Giles v. California

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GILES v. CALIFORNIA

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

No. 07–6053. Argued April 22, 2008—Decided June 25, 2008

At petitioner Giles’ murder trial, the court allowed prosecutors to intro-

duce statements that the murder victim had made to a police officer

responding to a domestic violence call. Giles was convicted. While

his appeal was pending, this Court held that the Sixth Amendment’s

Confrontation Clause gives defendants the right to cross-examine

witnesses who give testimony against them, except in cases where an

exception to the confrontation right was recognized at the founding.

Crawford v. Washington, 541 U. S. 36, 53–54. The State Court of

Appeal concluded that the Confrontation Clause permitted the trial

court to admit into evidence the unconfronted testimony of the mur-

der victim under a doctrine of forfeiture by wrongdoing. It concluded

that Giles had forfeited his right to confront the victim’s testimony

because it found Giles had committed the murder for which he was

on trial—an intentional criminal act that made the victim unavail-

able to testify. The State Supreme Court affirmed on the same

ground.

Held: The California Supreme Court’s theory of forfeiture by wrongdo-

ing is not an exception to the Sixth Amendment’s confrontation re-

quirement because it was not an exception established at the found-

ing. Pp. 3–20; 22–24.

(a) Common-law courts allowed the introduction of statements by

an absent witness who was “detained” or “kept away” by “means or

procurement” of the defendant. Cases and treatises indicate that this

rule applied only when the defendant engaged in conduct designed to

prevent the witness from testifying. Pp. 4–7.

(b) The manner in which this forfeiture rule was applied makes

plain that unconfronted testimony would not be admitted without a

showing that the defendant intended to prevent a witness from testi-

fying. In cases where the evidence suggested that the defendant

2 GILES v. CALIFORNIA

Syllabus

wrongfully caused the absence of a witness, but had not done so to

prevent the witness from testifying, unconfronted testimony was ex-

cluded unless it fell within the separate common-law exception to the

confrontation requirement for statements made by speakers who

were both on the brink of death and aware that they were dying.

Pp. 7–11.

(c) Not only was California’s proposed exception to the confronta-

tion right plainly not an “exceptio[n] established at the time of the

founding,” Crawford, supra, at 54; it is not established in American

jurisprudence since the founding. No case before 1985 applied forfei-

ture to admit statements outside the context of conduct designed to

prevent a witness from testifying. The view that the exception ap-

plies only when the defendant intends to make a witness unavailable

is also supported by modern authorities, such as Federal Rule of Evi-

dence 804(b)(6), which “codifies the forfeiture doctrine,” Davis v.

Washington, 547 U. S 813, 833. Pp. 11–14.

(d) The dissent’s contention that no testimony would come in at

common law under a forfeiture theory unless it was confronted is not

supported by the cases. In any event, if the dissent’s theory were

true, it would not support a broader forfeiture exception but would

eliminate the forfeiture exception entirely. Previously confronted tes-

timony by an unavailable witness is always admissible, wrongful pro-

curement or not. See Crawford, supra, at 68. Pp. 15–20.

(e) Acts of domestic violence are often intended to dissuade a vic-

tim from resorting to outside help. A defendant’s prior abuse, or

threats of abuse, intended to dissuade a victim from resorting to out-

side help would be highly relevant to determining the intent of a de-

fendant’s subsequent act causing the witness’s absence, as would evi-

dence of ongoing criminal proceedings at which the victim would have

been expected to testify. Here, the state courts did not consider Giles’

intent, which they found irrelevant under their interpretation of the

forfeiture doctrine. They are free to consider intent on remand. Pp.

23–24.

40 Cal. 4th 833, 152 P. 3d 433, vacated and remanded.

SCALIA, J., delivered the opinion of the Court, except as to Part II–D–

2. ROBERTS, C. J., and THOMAS and ALITO, JJ., joined that opinion in

full, and SOUTER and GINSBURG, JJ., joined as to all but Part II–D–2.

THOMAS, J., and ALITO, J., filed concurring opinions. SOUTER, J., filed

an opinion concurring in part, in which GINSBURG, J., joined. BREYER,

J., filed a dissenting opinion, in which STEVENS and KENNEDY, JJ.,

joined.

Cite as: 554 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–6053

_________________

DWAYNE GILES, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

[June 25, 2008]

JUSTICE SCALIA delivered the opinion of the Court,

except as to Part II–D–2.

We consider 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.

I

On September 29, 2002, petitioner Dwayne Giles shot

his ex-girlfriend, Brenda Avie, outside the garage of his

grandmother’s house. No witness saw the shooting, but

Giles’ niece heard what transpired from inside the house.

She heard Giles and Avie speaking in conversational

tones. Avie then 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, who had not been carrying a weapon,

had been shot six times. One wound was consistent with

Avie’s holding her hand up at the time she was shot,

another was consistent with her having turned to her side,

and a third was consistent with her having been shot

while lying on the ground. Giles fled the scene after the

shooting. He was apprehended by police about two weeks

2 GILES v. CALIFORNIA

Opinion of the Court

later and charged with murder.

At trial, Giles testified that he had acted in self-defense.

Giles described Avie as jealous, and said he knew that she

had once shot a man, that he had seen her threaten people

with a knife, and that she had vandalized his home and

car on prior occasions. He said that on the day of the

shooting, Avie came to his grandmother’s house and

threatened to kill him and his new girlfriend, who had

been at the house earlier. He said that Avie had also

threatened to kill his new girlfriend when Giles and Avie

spoke on the phone earlier that day. Giles testified that

after Avie threatened him at the house, he went into the

garage and retrieved a gun, took the safety off, and started

walking toward the back door of the house. He said that

Avie charged at him, and that he was afraid she had

something in her hand. According to Giles, he closed his

eyes and fired several shots, but did not intend to kill

Avie.

Prosecutors sought to introduce statements that Avie

had made to a police officer responding to a domestic-

violence report about three weeks before the shooting.

Avie, who was crying when she spoke, told the officer that

Giles had accused her of having an affair, and that after

the two began to argue, Giles grabbed her by the shirt,

lifted her off the floor, and began to choke her. According

to Avie, when she broke free and fell to the floor, Giles

punched her in the face and head, and after she broke free

again, he opened a folding knife, held it about three feet

away from her, and threatened to kill her if he found her

cheating on him. Over Giles’ objection, the trial court

admitted these statements into evidence under a provision

of California law that permits admission of out-of-court

statements describing the infliction or threat of physical

injury on a declarant when the declarant is unavailable to

testify at trial and the prior statements are deemed trust-

worthy. Cal. Evid. Code Ann. §1370 (West Supp. 2008).

Cite as: 554 U. S. ____ (2008) 3

Opinion of the Court

A jury convicted Giles of first-degree murder. He ap-

pealed. While his appeal was pending, this Court decided

in Crawford v. Washington, 541 U. S. 36, 53–54 (2004),

that the Confrontation Clause requires that a defendant

have the opportunity to confront the witnesses who give

testimony against him, except in cases where an exception

to the confrontation right was recognized at the time of

the founding. The California Court of Appeal held that

the admission of Avie’s unconfronted statements at Giles’

trial did not violate the Confrontation Clause as construed

by Crawford because Crawford recognized a doctrine of

forfeiture by wrongdoing. 19 Cal. Rptr. 3d 843, 847 (2004)

(officially depublished). It concluded that Giles had for-

feited his right to confront Avie because he had committed

the murder for which he was on trial, and because his

intentional criminal act made Avie unavailable to testify.

The California Supreme Court affirmed on the same

ground. 40 Cal. 4th 833, 837, 152 P. 3d 433, 435 (2007).

We granted certiorari. 552 U. S. ___ (2008).

II

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” The Amend-

ment contemplates that a witness who makes testimonial

statements admitted against a defendant will ordinarily

be present at trial for cross-examination, and that if the

witness is unavailable, his prior testimony will be intro-

duced only if the defendant had a prior opportunity to

cross-examine him. Crawford, 541 U. S., at 68. The State

does not dispute here, and we accept without deciding,

that Avie’s statements accusing Giles of assault were

testimonial. But it maintains (as did the California Su-

preme Court) that the Sixth Amendment did not prohibit

prosecutors from introducing the statements because an

exception to the confrontation guarantee permits the use

4 GILES v. CALIFORNIA

Opinion of the Court

of a witness’s unconfronted testimony if a judge finds, as

the judge did in this case, that the defendant committed a

wrongful act that rendered the witness unavailable to

testify at trial. We held in Crawford that the Confronta-

tion 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.”

Id., at 54. We therefore ask whether the theory of forfei-

ture by wrongdoing accepted by the California Supreme

Court is a founding-era exception to the confrontation

right.

A

We have previously acknowledged that two forms of

testimonial statements were admitted at common law

even though they were unconfronted. See id., at 56, n. 6,

62. The first of these were declarations made by a speaker

who was both on the brink of death and aware that he was

dying. See, e.g., King v. Woodcock, 1 Leach 500, 501–504,

168 Eng. Rep. 352, 353–354 (1789); State v. Moody, 3 N. C.

31 (Super. L. & Eq. 1798); United States v. Veitch, 28 F.

Cas. 367, 367–368 (No. 16,614) (CC DC 1803); King v.

Commonwealth, 4 Va. 78, 80–81 (Gen. Ct. 1817). Avie did

not make the unconfronted statements admitted at Giles’

trial when she was dying, so her statements do not fall

within this historic exception.

A second common-law doctrine, which we will refer to as

forfeiture by wrongdoing, permitted the introduction of

statements of a witness who was “detained” or “kept

away” by the “means or procurement” of the defendant.

See, e.g., Lord Morley’s Case, 6 How. St. Tr. 769, 771 (H. L.

1666) (“detained”); Harrison’s Case, 12 How. St. Tr. 833,

851 (H. L. 1692) (“made him keep away”); Queen v. Scaife,

117 Q. B. 238, 242, 117 Eng. Rep. 1271, 1273 (K. B. 1851)

(“kept away”); see also 2 W. Hawkins, Pleas of the Crown

425 (4th ed. 1762) (hereinafter Hawkins) (same); T. Peake,

Cite as: 554 U. S. ____ (2008) 5

Opinion of the Court

Compendium of the Law of Evidence 62 (2d ed. 1804)

(“sent” away); 1 G. Gilbert, Law of Evidence 214 (1791)

(“detained and kept back from appearing by the means

and procurement of the prisoner”). The doctrine has roots

in the 1666 decision in Lord Morley’s Case, at which

judges concluded that a witness’s having been “detained

by the means or procurement of the prisoner,” provided a

basis to read testimony previously given at a coroner’s

inquest. 6 How. St. Tr., at 770–771. Courts and commen-

tators also concluded that wrongful procurement of a

witness’s absence was among the grounds for admission of

statements made at bail and committal hearings con-

ducted under the Marian statutes, which directed justices

of the peace to take the statements of felony suspects and

the persons bringing the suspects before the magistrate,

and to certify those statements to the court, Crawford,

supra, at 43–44; J. Langbein, Prosecuting Crime in the

Renaissance 10–12, 16–20 (1974). See 2 Hawkins 429.

This class of confronted statements was also admissible if

the witness who made them was dead or unable to travel.

Ibid.

The terms used to define the scope of the forfeiture rule

suggest that the exception applied only when the defen-

dant engaged in conduct designed to prevent the witness

from testifying. The rule required the witness to have

been “kept back” or “detained” by “means or procurement”

of the defendant. Although there are definitions of “pro-

cure” and “procurement” that would merely require that a

defendant have caused the witness’s absence, other defini-

tions would limit the causality to one that was designed to

bring about the result “procured.” See 2 N. Webster, An

American Dictionary of the English Language (1828)

(defining “procure” as “to contrive and effect” (emphasis

added)); ibid. (defining “procure” as “to get; to gain; to

obtain; as by request, loan, effort, labor or purchase”); 12

Oxford English Dictionary 559 (2d ed. 1989) (def. I(3))

6 GILES v. CALIFORNIA

Opinion of the Court

(defining “procure” as “[t]o contrive or devise with care (an

action or proceeding); to endeavour to cause or bring about

(mostly something evil) to or for a person”). Similarly,

while the term “means” could sweep in all cases in which a

defendant caused a witness to fail to appear, it can also

connote that a defendant forfeits confrontation rights

when he uses an intermediary for the purpose of making a

witness absent. See 9 id., at 516 (“[A] person who inter-

cedes for another or uses influence in order to bring about

a desired result”); N. Webster, An American Dictionary of

the English Language 822 (1869) (“That through which, or

by the help of which, an end is attained”).

Cases and treatises of the time indicate that a purpose-

based definition of these terms governed. A number of

them said that prior testimony was admissible when a

witness was kept away by the defendant’s “means and

contrivance.” See 1 J. Chitty, A Practical Treatise on the

Criminal Law 81 (1816) (“kept away by the means and

contrivance of the prisoner”); S. Phillipps, A Treatise on

the Law of Evidence 165 (1814) (“kept out of the way by

the means and contrivance of the prisoner”); Drayton v.

Wells, 10 S. C. L. 409, 411 (S. C. 1819) (“kept away by the

contrivance of the opposite party”). This phrase requires

that the defendant have schemed to bring about the ab-

sence from trial that he “contrived.” Contrivance is com-

monly defined as the act of “inventing, devising or plan-

ning,” 1 Webster, supra, at 47, “ingeniously endeavoring

the accomplishment of anything,” “the bringing to pass by

planning, scheming, or stratagem,” or “[a]daption of

means to an end; design, intention,” 3 Oxford English

Dictionary, supra, at 850.1

——————

1 The dissent asserts that a defendant could have “contrived, i.e.,

devised or planned . . . to murder a victim” without the purpose of

keeping the victim away from trial. See post, at 12 (opinion of

BREYER, J.). But that would not be contriving to keep the witness

away. The dissent further suggests that these authorities are irrele-

Cite as: 554 U. S. ____ (2008) 7

Opinion of the Court

An 1858 treatise made the purpose requirement more

explicit still, stating that the forfeiture rule applied when

a witness “had been kept out of the way by the prisoner, or

by some one on the prisoner’s behalf, in order to prevent

him from giving evidence against him.” E. Powell, The

Practice of the Law of Evidence 166 (1st ed. 1858) (empha-

sis added). The wrongful-procurement exception was

invoked in a manner consistent with this definition. We

are aware of no case in which the exception was invoked

although the defendant had not engaged in conduct de-

signed to prevent a witness from testifying, such as offer-

ing a bribe.

B

The manner in which the rule was applied makes plain

that unconfronted testimony would not be admitted with-

out 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—as in the typical murder case involving accusa-

torial statements by the victim—the testimony was ex-

cluded unless it was confronted or fell within the dying-

declaration exception. Prosecutors do not appear to have

even argued that the judge could admit the unconfronted

statements because the defendant committed the murder

for which he was on trial.

Consider King v. Woodcock. William Woodcock was

accused of killing his wife, Silvia, who had been beaten

——————

vant because “the relevant phrase” in Lord Morley’s Case itself is “ ‘by

means or procurement’ ” of the defendant and means “may, or may not,

refer to an absence that the defendant desired, as compared to an

absence that the defendant caused.” Post, at 12–13 (emphasis added).

But 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.” (Emphasis added.)

8 GILES v. CALIFORNIA

Opinion of the Court

and left near death. A Magistrate took Silvia Woodcock’s

account of the crime, under oath, and she died about 48

hours later. The judge stated that “[g]reat as a crime of

this nature must always appear to be, yet the inquiry into

it must proceed upon the rules of evidence.” 1 Leach, at

500, 168 Eng. Rep., at 352. Aside from testimony given at

trial in the presence of the prisoner, the judge said, there

were “two other species which are admitted by law: The

one is the dying declaration of a person who has received a

fatal blow; the other is the examination of a prisoner, and

the depositions of the witnesses who may be produced

against him” taken under the Marian bail and committal

statutes. Id., at 501, 168 Eng. Rep., at 352–353 (footnote

omitted). Silvia Woodcock’s statement could not be admit-

ted pursuant to the Marian statutes because it was uncon-

fronted—the defendant had not been brought before the

examining Magistrate and “the prisoner therefore had no

opportunity of contradicting the facts it contains.” Id., at

502, 168 Eng. Rep., at 353. Thus, the statements were

admissible only if the witness “apprehended that she was

in such a state of mortality as would inevitably oblige her

soon to answer before her Maker for the truth or falsehood

of her assertions.” Id., at 503, 168 Eng. Rep., at 353–354

(footnote omitted). Depending on the account one credits,

the court either instructed the jury to consider the state-

ments only if Woodcock was “in fact under the apprehen-

sion of death,” id., at 504, 168 Eng. Rep., at 354, or deter-

mined for itself that Woodcock was “quietly resigned and

submitting to her fate” and admitted her statements into

evidence, 1 E. East, Pleas of the Crown 356 (1803).

King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791),

applied the same test to exclude unconfronted statements

by a murder victim. George Dingler was charged with

killing his wife Jane, who suffered multiple stab wounds

that left her in the hospital for 12 days before she died.

The day after the stabbing, a Magistrate took Jane Din-

Cite as: 554 U. S. ____ (2008) 9

Opinion of the Court

gler’s deposition—as in Woodcock, under oath—“of the

facts and circumstances which had attended the outrage

committed upon her.” 2 Leach, at 561, 168 Eng. Rep., at

383. George Dingler’s attorney argued that the state-

ments did not qualify as dying declarations and were not

admissible Marian examinations because they were not

taken in the presence of the prisoner, with the result that

the defendant did not “have, as he is entitled to have, the

benefit of cross-examination.” Id., at 562, 168 Eng. Rep.,

at 384. The prosecutor agreed, but argued the deposition

should still be admitted because “it was the best evidence

that the nature of the case would afford.” Id., at 563, 168

Eng. Rep., at 384. Relying on Woodcock, the court “re-

fused to receive the examination into evidence.” Id., at

563, 168 Eng. Rep., at 384.

Many other cases excluded victims’ statements when

there was insufficient evidence that the witness was

aware he was about to die. See Thomas John’s Case, 1

East 357, 358 (P. C. 1790); Welbourn’s Case, 1 East 358,

360 (P. C. 1792); United States v. Woods, 28 F. Cas. 762,

763 (No. 16,760) (CC DC 1834); Lewis v. State, 17 Miss.

115, 120 (1847); Montgomery v. State, 11 Ohio 424, 425–

426 (1842); Nelson v. State, 26 Tenn. 542, 543 (1847);

Smith v. State, 28 Tenn. 9, 23 (1848). Courts in all these

cases did not even consider admitting the statements on

the ground that the defendant’s crime was to blame for the

witness’s absence—even when the evidence establishing

that was overwhelming. The reporter in Woodcock went

out of his way to comment on the strength of the case

against the defendant: “The evidence, independent of the

information or declarations of the deceased, was of a very

pressing and urgent nature against the prisoner.” 1

Leach, at 501, 168 Eng. Rep., at 352.

Similarly, in Smith v. State, supra, the evidence that the

defendant had caused the victim’s death included, but was

not limited to, the defendant’s having obtained arsenic

10 GILES v. CALIFORNIA

Opinion of the Court

from a local doctor a few days before his wife became

violently ill; the defendant’s paramour testifying at trial

that the defendant admitted to poisoning his wife; the

defendant’s having asked a physician “whether the pres-

ence of arsenic could be discovered in the human stomach

a month after death”; and, the answer to that inquiry

apparently not having been satisfactory, the defendant’s

having tried to hire a person to burn down the building

containing his wife’s body. Id., at 10–11. If the State’s

reading of common law were correct, the dying declara-

tions in these cases and others like them would have been

admissible.

Judges and prosecutors also failed to invoke forfeiture as

a sufficient basis to admit unconfronted statements in the

cases that did apply the dying-declarations exception. This

failure, too, is striking. At a murder trial, presenting evi-

dence that the defendant was responsible for the victim’s

death would have been no more difficult than putting on the

government’s case in chief. Yet prosecutors did not attempt

to obtain admission of dying declarations on wrongful-

procurement-of-absence grounds before going to the often

considerable trouble of putting on evidence to show that the

crime victim had not believed he could recover. See, e.g.,

King v. Commonwealth, 4 Va., at 80–81 (three witnesses

called to testify on the point); Gibson v. Commonwealth, 4

Va. 111, 116–117 (Gen. Ct. 1817) (testimony elicited from

doctor and witness); Anthony v. State, 19 Tenn. 265, 278–

279 (1838) (doctor questioned about expected fatality of

victim’s wound and about victim’s demeanor).

The State offers another explanation for the above

cases. It argues that when a defendant committed some

act of wrongdoing that rendered a witness unavailable, he

forfeited his right to object to the witness’s testimony on

confrontation grounds, but not on hearsay grounds. See

Brief for Respondent 23–24. No case or treatise that we

have found, however, suggested that a defendant who

Cite as: 554 U. S. ____ (2008) 11

Opinion of the Court

committed wrongdoing forfeited his confrontation rights

but not his hearsay rights. And the distinction would

have been a surprising one, because courts prior to the

founding excluded hearsay evidence in large part because

it was unconfronted. See, e.g., 2 Hawkins 606 (6th ed.

1787); 2 M. Bacon, A New Abridgment of the Law 313

(1736). As the plurality said in Dutton v. Evans, 400 U. S.

74, 86 (1970), “[i]t seems apparent that the Sixth Amend-

ment’s Confrontation Clause and the evidentiary hearsay

rule stem from the same roots.”

The State and the dissent note that common-law au-

thorities justified the wrongful-procurement rule by invok-

ing the maxim that a defendant should not be permitted to

benefit from his own wrong. See, e.g., G. Gilbert, Law of

Evidence 140–141 (1756) (if a witness was “detained and

kept back from appearing by the means and procurement”

testimony would be read because a defendant “shall never

be admitted to shelter himself by such evil Practices on

the Witness, that being to give him Advantage of his own

Wrong”). But as the evidence amply shows, the “wrong”

and the “evil Practices” to which these statements referred

was conduct designed to prevent a witness from testifying.

The absence of a forfeiture rule covering this sort of con-

duct would create an intolerable incentive for defendants

to bribe, intimidate, or even kill witnesses against them.

There is nothing mysterious about courts’ refusal to carry

the rationale further. The notion that judges may strip

the defendant of a right that the Constitution deems

essential to a fair trial, on the basis of a prior judicial

assessment that the defendant is guilty as charged, does

not sit well with the right to trial by jury. It is akin, one

might say, to “dispensing with jury trial because a defen-

dant is obviously guilty.” Crawford, 541 U. S., at 62.

C

Not only was the State’s proposed exception to the right

12 GILES v. CALIFORNIA

Opinion of the Court

of confrontation plainly not an “exceptio[n] established at

the time of the founding,” id., at 54; it is not established in

American jurisprudence since the founding. American

courts never—prior to 1985—invoked forfeiture outside

the context of deliberate witness tampering.

This Court first addressed forfeiture in Reynolds v.

United States, 98 U. S. 145 (1879), where, after hearing

testimony that suggested the defendant had kept his wife

away from home so that she could not be subpoenaed to

testify, the trial court permitted the government to intro-

duce testimony of the defendant’s wife from the defen-

dant’s prior trial. See id., at 148–150. On appeal, the

Court held that admission of the statements did not vio-

late the right of the defendant to confront witnesses at

trial, because when a witness is absent by the defendant’s

“wrongful procurement,” the defendant “is in no condition

to assert that his constitutional rights have been violated”

if “their evidence is supplied in some lawful way.” Id., at

158. Reynolds invoked broad forfeiture principles to ex-

plain its holding. The decision stated, for example, that

“[t]he Constitution does not guarantee an accused person

against the legitimate consequences of his own wrongful

acts,” ibid., and that the wrongful-procurement rule “has

its foundation” in the principle that no one should be

permitted to take advantage of his wrong, and is “the

outgrowth of a maxim based on the principles of common

honesty,” id., at 159.

Reynolds relied on these maxims (as the common-law

authorities had done) to be sure. But it relied on them (as

the common-law authorities had done) to admit prior

testimony in a case where the defendant had engaged in

wrongful conduct designed to prevent a witness’s testi-

mony. The Court’s opinion indicated that it was adopting

the common-law rule. It cited leading common-law

cases—Lord Morley’s Case, Harrison’s Case, and Scaife—

described itself as “content with” the “long-established

Cite as: 554 U. S. ____ (2008) 13

Opinion of the Court

usage” of the forfeiture principle, and admitted prior

confronted statements under circumstances where admis-

sibility was open to no doubt under Lord Morley’s Case.

Reynolds, supra, at 158–159.

If the State’s rule had an historical pedigree in the

common law or even in the 1879 decision in Reynolds, one

would have expected it to be routinely invoked in murder

prosecutions like the one here, in which the victim’s prior

statements inculpated the defendant. It was never in-

voked in this way. 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. United

States v. Rouco, 765 F. 2d 983 (CA11).

In 1997, this Court approved a Federal Rule of Evi-

dence, entitled “Forfeiture by wrongdoing,” which applies

only when the defendant “engaged or acquiesced in

wrongdoing that was intended to, and did, procure the

unavailability of the declarant as a witness.” Fed. Rule of

Evid. 804(b)(6). We have described this as a rule “which

codifies the forfeiture doctrine.” Davis v. Washington, 547

U. S. 813, 833 (2006). Every commentator we are aware of

has concluded the requirement of intent “means that the

exception applies only if the defendant has in mind the

particular purpose of making the witness unavailable.” 5

C. Mueller & L. Kirkpatrick, Federal Evidence §8:134, p.

235 (3d ed. 2007); 5 J. Weinstein & M. Berger, Weinstein’s

Federal Evidence §804.03[7][b], p. 804–32 (J. McLaughlin

ed., 2d ed. 2008); 2 S. Brown, McCormick on Evidence 176

(6th ed. 2006).2 The commentators come out this way

——————

2 Only a single state evidentiary code appears to contain a forfeiture

rule broader than our holding in this case (and in Crawford) allow.

Seven of the 12 States that recognize wrongdoing as grounds for forfeit-

ing objection to out-of-court statements duplicate the language of the

federal forfeiture provision that requires purpose, see Del. Rule Evid.

14 GILES v. CALIFORNIA

Opinion of the Court

because the dissent’s claim that knowledge is sufficient to

show intent is emphatically not the modern view. See 1

W. LaFave, Substantive Criminal Law §5.2, p. 340 (2d ed.

2003).

In sum, our interpretation of the common-law forfeiture

rule is supported by (1) the most natural reading of the

language used at common law; (2) the absence of common-

law cases admitting prior statements on a forfeiture the-

ory when the defendant had not engaged in conduct de-

signed to prevent a witness from testifying; (3) the com-

mon law’s uniform exclusion of unconfronted inculpatory

testimony by murder victims (except testimony given with

awareness of impending death) in the innumerable cases

in which the defendant was on trial for killing the victim,

but was not shown to have done so for the purpose of

preventing testimony; (4) a subsequent history in which

the dissent’s broad forfeiture theory has not been applied.

The first two and the last are highly persuasive; the third

——————

804(b)(6) (2001); Ky. Rule Evid. 804(b)(5) (2004); N. D. Rule Evid.

804(b)(6) (2007); Pa. Rule Evid. 804(b)(6) (2005); Vt. Rule Evid.

804(b)(6) (2004); see also Tenn. Rule Evid. 804(b)(6) (2003) (identical

except that it excludes mention of acquiescence); Mich. Rule Evid.

804(b)(6) (2008) (substitutes “engaged in or encouraged” for “engaged or

acquiesced in”). Two others require “purpose” by their terms. Ohio

Rule Evid. 804(B)(6) (2008); Cal. Evid. Code Ann. §1350 (West Supp.

2008). Two of the three remaining forfeiture provisions require the

defendant to have “procured” the unavailability of a witness, Haw. Rule

804(b)(7) (2007); Md. Cts. & Jud. Proc. Code Ann. §10–901 (Lexis

2006)—which, as we have discussed, is a term traditionally used in the

forfeiture context to require intent. Maryland’s rule has thus been

described as “requir[ing] that the judge must find that [the] wrongdo-

ing or misconduct was undertaken with the intent of making the

witness unavailable to testify.” 6A L. McLain, Maryland Evidence,

State and Federal §804(6):1, p. 230 (West Supp. 2007–2008). These

rules cast more than a little doubt on the dissent’s assertion that the

historic forfeiture rule creates intolerable problems of proof. The lone

forfeiture exception whose text reaches more broadly than the rule we

adopt is an Oregon rule adopted in 2005. See 2005 Ore. Laws p. 1232,

Ch. 458 (S. B. 287).

Cite as: 554 U. S. ____ (2008) 15

Opinion of the Court

is in our view conclusive.

D

1

The dissent evades the force of that third point by claim-

ing that no testimony would come in at common law based

on a forfeiture theory unless it was confronted. It explains

the exclusion of murder victims’ testimony by arguing that

wrongful procurement was understood to be a basis for

admission of Marian depositions—which the defendant

would have had the opportunity to confront—but not for

the admission of unconfronted testimony. See post, at 15.

That explanation is not supported by the cases. In

Harrison’s Case, the leading English case finding wrongful

procurement, the witness’s statements were admitted

without regard to confrontation. An agent of the defen-

dant had attempted to bribe a witness, who later disap-

peared under mysterious circumstances. The prosecutor

contended that he had been “spirited, or withdrawn from

us, by a gentleman that said he came to [the witness] from

the prisoner, and desired him to be kind to the prisoner.”

12 How. St. Tr., at 851. The court allowed the witness’s

prior statements before the coroner to be read, id., at 852,

although there was no reason to think the defendant

would have been present at the prior examination.3

——————

3 Wrongful procurement was also described as grounds for admitting

unconfronted testimony in Fenwick’s Case, 13 How. St. Tr. 537 (H. C.

1696), a parliamentary attainder proceeding. Although many speakers

argued for admission of unconfronted testimony simply because Par-

liament was not bound by the rules of evidence for felony cases, see

Crawford v. Washington, 541 U. S. 36, 46 (2004), it was also argued

that witness tampering could be a basis for admitting unconfronted

statements even in common-law felony trials: “[W]here persons do

stand upon their lives, accused for crimes, if it appears to the court that

the prisoner hath, by fraudulent and indirect means, procured a person

that hath given information against him to a proper magistrate, to

withdraw himself, so that he cannot give evidence as regularly as they

16 GILES v. CALIFORNIA

Opinion of the Court

The reasoning of the common-law authorities reinforces

the conclusion that the wrongful-procurement rule did not

depend on prior confrontation. The judge in Harrison’s

Case, after being told that “Mr. Harrison’s agents or

friends have, since the last sessions, made or conveyed

away a young man that was a principal evidence against

him,” declared that if this were proved, “it will no way

conduce to Mr. Harrison’s advantage.” Id., at 835–836.

Similarly, a leading treatise’s justification of the use of

statements from coroner’s inquests when a witness was

“detained and kept back from appearing by the means and

procurement” of the defendant was that the defendant

“shall never be admitted to shelter himself by such evil

Practices on the Witness, that being to give him Advan-

tage of his own Wrong.” G. Gilbert, Law of Evidence 140

(1756). But if the defendant could keep out unconfronted

prior testimony of a wrongfully detained witness he would

profit from “such evil Practices.”

While American courts understood the admissibility of

statements made at prior proceedings (including coroner’s

inquests like the one in Harrison’s Case) to turn on prior

opportunity for cross-examination as a general matter, see

Crawford, 541 U. S., at 47, n. 2, no such limit was applied

or expressed in early wrongful-procurement cases. In Rex

v. Barber, 1 Root 76 (Conn. Super. Ct. 1775), “[o]ne White,

who had testified before the justice and before the grand-

jury against Barber, and minutes taken of his testimony,

——————

used to do; in that case his information hath been read; which, I sup-

pose, with humble submission, is this case . . . .” 13 How. St. Tr., at 594

(remarks of Lovel). The dissent responds that in most circumstances in

which a witness had given information against a defendant before “ ‘a

proper magistrate,’ ” the testimony would have been confronted. Post,

at 20. Perhaps so, but the speaker was arguing that the wrongful-

procurement exception applied in “this case”—Fenwick’s Case, in which

the testimony was unconfronted, see 13 How. St. Tr., at 591–592.

Cite as: 554 U. S. ____ (2008) 17

Opinion of the Court

was sent away by one Bullock, a friend of Barber’s, and by

his instigation; so that he could not be had to testify before

the petit-jury. The court admitted witnesses to relate

what White had before testified.” Two leading evidentiary

treatises and a Delaware case reporter cite that case for

the proposition that grand jury statements were admitted

on a wrongful-procurement theory. See Phillipps, Treatise

on Evidence, at 200, n. (a); T. Peake, Compendium of the

Law of Evidence 91, n. (m) (American ed. 1824); State v.

Lewis, 1 Del. Cas. 608, 609, n. 1 (Ct. Quarter Sess. 1818).

(Of course the standard practice since approximately the

17th century has been to conduct grand jury proceedings

in secret, without confrontation, in part so that the defen-

dant does not learn the State’s case in advance. S. Beale,

W. Bryson, J. Felman, & M. Elston, Grand Jury Law and

Practice §5.2 (2d ed. 2005); see also 8 J. Wigmore Evidence

§2360, pp. 728–735 (J. McNaughton rev. 1961)).4

The Georgia Supreme Court’s articulation of the forfei-

ture rule similarly suggests that it understood forfeiture to

be a basis for admitting unconfronted testimony. The

court wrote that Lord Morley’s Case established that if a

witness “who had been examined by the Crown, and was

then absent, was detained by the means or procurement of

the prisoner,” “then the examination should be read” into

evidence. Williams v. State, 19 Ga. 402, 403 (1856). Its

rule for all cases in which the witness “had been examined

by the Crown” carried no confrontation limit, and indeed,

——————

4 Three commentators writing more than a century after the Barber

decision, said, without explanation, that they understood the case to

have admitted only confronted testimony at a preliminary examination.

W. Best, The Principles of the Law of Evidence 473, n. (e) (American ed.

1883); J. Stephen, A Digest of the Law of Evidence 161 (1902); 2 J.

Bishop, New Criminal Procedure §1197, p. 1024 (2d ed. 1913). We

know of no basis for that understanding. The report of the case does

not limit the admitted testimony to statements that were confronted.

18 GILES v. CALIFORNIA

Opinion of the Court

the court adopted the rule from Lord Morley’s Case which

involved not Marian examinations carrying a confronta-

tion requirement, but coroner’s inquests that lacked one.

The leading American case on forfeiture of the confron-

tation right by wrongful procurement was our 1879 deci-

sion in Reynolds. That case does not set forth prior con-

frontation as a requirement for the doctrine’s application,

and begins its historical analysis with a full description of

the rule set forth in Lord Morley’s Case, which itself con-

tained no indication that the admitted testimony must

have been previously confronted. It followed that descrip-

tion with a citation of Harrison’s Case—which, like Lord

Morley’s Case, applied wrongful procurement to coroner’s

inquests, not confronted Marian examinations—saying

that the rule in those cases “seems to have been recog-

nized as the law of England ever since.” 98 U. S., at 158.

The opinion’s description of the forfeiture rule is likewise

unconditioned by any requirement of prior confrontation:

“The Constitution gives the accused the right to a trial

at which he should be confronted with the witnesses

against him; but if a witness is absent by his own

wrongful procurement, he cannot complain if compe-

tent evidence is admitted to supply the place of that

which he kept away. . . . [The Constitution] grants

him the privilege of being confronted with the wit-

nesses against him; but if he voluntarily keeps the

witnesses away, he cannot insist on his privilege. If,

therefore, when absent by his procurement, their evi-

dence is supplied in some lawful way, he is in no con-

dition to assert that his constitutional rights have

been violated.” Ibid.

There is no mention in this paragraph of a need for prior

confrontation, even though if the Court believed such a

limit applied, the phrase “their evidence is supplied”

would more naturally have read “their previously con-

Cite as: 554 U. S. ____ (2008) 19

Opinion of the Court

fronted evidence is supplied.” Crawford reaffirmed this

understanding by citing Reynolds for a forfeiture exception

to the confrontation right. 541 U. S., at 54. And what

Reynolds and Crawford described as the law became a

seeming holding of this Court in Davis, which, after find-

ing an absent witness’s unconfronted statements intro-

duced at trial to have been testimonial, and after observ-

ing that “one who obtains the absence of a witness by

wrongdoing forfeits the constitutional right to confronta-

tion,” 547 U. S., at 833, remanded with the instruction

that “[t]he Indiana courts may (if they are asked) deter-

mine on remand whether . . . a claim of forfeiture is prop-

erly raised and, if so, whether it is meritorious,” id. at

834.

Although the case law is sparse, in light of these deci-

sions and the absence of even a single case declining to

admit unconfronted statements of an absent witness on

wrongful-procurement grounds when the defendant

sought to prevent the witness from testifying, we are not

persuaded to displace the understanding of our prior cases

that wrongful procurement permits the admission of prior

unconfronted testimony.

But the parsing of cases aside, the most obvious problem

with the dissent’s theory that the forfeiture rule applied

only to confronted testimony is that it amounts to self-

immolation. If it were true, it would destroy not only our

case for a narrow forfeiture rule, but the dissent’s case for

a broader one as well. Prior confronted statements by

witnesses who are unavailable are admissible whether or

not the defendant was responsible for their unavailability.

Id., at 68. If the forfeiture doctrine did not admit uncon-

fronted prior testimony at common law, the conclusion

must be, not that the forfeiture doctrine requires no spe-

cific intent in order to render unconfronted testimony

available, but that unconfronted testimony is subject to no

20 GILES v. CALIFORNIA

the Court

Opinion of SCALIA, J.

forfeiture doctrine at all.5

2

Having destroyed its own case, the dissent issues a

thinly veiled invitation to overrule Crawford and adopt an

approach not much different from the regime of Ohio v.

Roberts, 448 U. S. 56 (1980), under which the Court would

create the exceptions that it thinks consistent with the

policies underlying the confrontation guarantee, regard-

less of how that guarantee was historically understood.

The “basic purposes and objectives” of forfeiture doctrine,

it says, require that a defendant who wrongfully caused

the absence of a witness be deprived of his confrontation

rights, whether or not there was any such rule applicable

at common law. Post, at 4.

If we were to reason from the “basic purposes and objec-

tives” of the forfeiture doctrine, we are not at all sure we

would come to the dissent’s favored result. The common-

law forfeiture rule was aimed at removing the otherwise

powerful incentive for defendants to intimidate, bribe, and

kill the witnesses against them—in other words, it is

grounded in “the ability of courts to protect the integrity of

their proceedings.” Davis, 547 U. S., at 834. The bounda-

ries of the doctrine seem to us intelligently fixed so as to

avoid a principle repugnant to our constitutional system of

trial by jury: that those murder defendants whom the

judge considers guilty (after less than a full trial, mind

you, and of course before the jury has pronounced guilt)

should be deprived of fair-trial rights, lest they benefit

——————

5 The dissent attempts to reconcile its approach with Crawford by

saying the wrongful-procurement cases used language “broad enough”

to reach every case in which a defendant committed wrongful acts that

caused the absence of a victim, and that there was therefore an “‘excep-

tion” “established at the time of the founding,’ ” post, at 3, reaching all

such misconduct. But an exception to what? The dissent contends that

it was not an exception to confrontation. Were that true, it would be

the end of the Crawford inquiry.

Cite as: 554 U. S. ____ (2008) 21

the Court

Opinion of SCALIA, J.

from their judge-determined wrong.6

Since it is most certainly not the norm that trial rights

can be “forfeited” on the basis of a prior judicial determi-

nation of guilt, the dissent must go far afield to argue even

by analogy for its forfeiture rule. See post, at 5 (discussing

common-law doctrine that prohibits the murderer from

collecting insurance on the life of his victim, or an inheri-

tance from the victim’s estate); post, at 6 (noting that

many criminal statutes punish a defendant regardless of

his purpose). These analogies support propositions of

which we have no doubt: States may allocate property

rights as they see fit, and a murderer can and should be

punished, without regard to his purpose, after a fair trial.

But a legislature may not “punish” a defendant for his evil

acts by stripping him of the right to have his guilt in

a criminal proceeding determined by a jury, and on the

basis of evidence the Constitution deems reliable and

admissible.

——————

6 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 (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 (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 eviden-

tiary ruling. That must sometimes be done under the forfeiture rule

that we adopt—when, for example, the defendant is on trial for murder-

ing 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.

22 GILES v. CALIFORNIA

the Court

Opinion of SCALIA, J.

The larger problem with the dissent’s argument, how-

ever, is that the guarantee of confrontation is no guaran-

tee at all if it is subject to whatever exceptions courts from

time to time consider “fair.” It is not the role of courts to

extrapolate from the words of the Sixth Amendment to the

values behind it, and then to enforce its guarantees only to

the extent they serve (in the courts’ views) those underly-

ing values. The Sixth Amendment seeks fairness indeed—

but seeks it through very specific means (one of which is

confrontation) that were the trial rights of Englishmen. It

“does not suggest any open-ended exceptions from the

confrontation requirement to be developed by the courts.”

Crawford, supra, at 54.7

E

The dissent closes by pointing out that a forfeiture rule

which ignores Crawford would be particularly helpful to

women in abusive relationships—or at least particularly

helpful in punishing their abusers. Not as helpful as the

dissent suggests, since only testimonial statements are

excluded by the Confrontation Clause. Statements to

friends and neighbors about abuse and intimidation, and

statements to physicians in the course of receiving treat-

ment would be excluded, if at all, only by hearsay rules,

which are free to adopt the dissent’s version of forfeiture

by wrongdoing. In any event, we are puzzled by the dis-

sent’s decision to devote its peroration to domestic abuse

cases. Is the suggestion that we should have one Confron-

——————

7 The dissent also implies that we should not adhere to Crawford

because the confrontation guarantee limits the evidence a State may

introduce without limiting the evidence a defendant may introduce.

See post, at 9. That is true. Just as it is true that the State cannot

decline to provide testimony harmful to its case or complain of the lack

of a speedy trial. The asymmetrical nature of the Constitution’s crimi-

nal-trial guarantees is not an anomaly, but the intentional conferring of

privileges designed to prevent criminal conviction of the innocent. The

State is at no risk of that.

Cite as: 554 U. S. ____ (2008) 23

the Court

Opinion of SCALIA, J.

tation Clause (the one the Framers adopted and Crawford

described) for all other crimes, but a special, improvised,

Confrontation Clause for those crimes that are frequently

directed against women? Domestic violence is an intoler-

able offense that legislatures may choose to combat

through many means—from increasing criminal penalties

to adding resources for investigation and prosecution to

funding awareness and prevention campaigns. But for

that serious crime, as for others, abridging the constitu-

tional rights of criminal defendants is not in the State’s

arsenal.

The domestic-violence context is, however, relevant for a

separate reason. Acts of domestic violence often are in-

tended to dissuade a victim from resorting to outside help,

and include conduct designed to prevent testimony to

police officers or cooperation in criminal prosecutions.

Where such an abusive relationship culminates in murder,

the evidence may support a finding that the crime ex-

pressed the intent to isolate the victim and to stop her

from reporting abuse to the authorities or cooperating

with a criminal prosecution—rendering her prior state-

ments admissible under the forfeiture doctrine. Earlier

abuse, or threats of abuse, intended to dissuade the victim

from resorting to outside help would be highly relevant to

this inquiry, as would evidence of ongoing criminal pro-

ceedings at which the victim would have been expected to

testify. This is not, as the dissent charges, post, at 25,

nothing more than “knowledge-based intent.” (Emphasis

deleted.)

The state courts in this case did not consider the intent

of the defendant because they found that irrelevant to

application of the forfeiture doctrine. This view of the law

was error, but the court is free to consider evidence of the

defendant’s intent on remand.

24 GILES v. CALIFORNIA

the Court

Opinion of SCALIA, J.

* * *

We decline to approve an exception to the Confrontation

Clause unheard of at the time of the founding or for 200

years thereafter. The judgment of the California Supreme

Court is vacated, and the case is remanded for further

proceedings not inconsistent with this opinion.

It is so ordered.

Cite as: 554 U. S. ____ (2008) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–6053

_________________

DWAYNE GILES, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

[June 25, 2008]

JUSTICE THOMAS, concurring.

I write separately to note that I adhere to my view that

statements like those made by the victim in this case do

not implicate the Confrontation Clause. The contested

evidence is indistinguishable from the statements made

during police questioning in response to the report of

domestic violence in Hammon v. Indiana, decided with

Davis v. Washington, 547 U. S. 813 (2006). There, as here,

the police questioning was not “a formalized dialogue”; it

was not “sufficiently formal to resemble the Marian ex-

aminations” because “the statements were neither Miran-

dized nor custodial, nor accompanied by any similar indi-

cia of formality”; and “there is no suggestion that the

prosecution attempted to offer [Ms. Avie’s] hearsay evi-

dence at trial in order to evade confrontation.” See id., at

840 (THOMAS, J., concurring in judgment in part and

dissenting in part).

Nonetheless, in this case respondent does not argue that

the contested evidence is nontestimonial, ante, at 3; the

court below noted “no dispute” on the issue, 40 Cal. 4th

833, 841, 152 P. 3d 433, 438 (2007); and it is outside the

scope of the question presented, Brief for Petitioner i.

Because the Court’s opinion accurately reflects our Con-

frontation Clause jurisprudence where the applicability of

that Clause is not at issue, I join the Court in vacating the

decision below.

Cite as: 554 U. S. ____ (2008) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–6053

_________________

DWAYNE GILES, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

[June 25, 2008]

JUSTICE ALITO, concurring.

I join the Court’s opinion, but I write separately to make

clear that, like JUSTICE THOMAS, I am not convinced that

the out-of-court statement at issue here fell within the

Confrontation Clause in the first place. The dissent’s

displeasure with the result in this case is understandable,

but I suggest that the real problem concerns the scope of

the confrontation right. The Confrontation Clause does

not apply to out-of-court statements unless it can be said

that they are the equivalent of statements made at trial by

“witnesses.” U. S. Const., Amdt. 6. It is not at all clear

that Ms. Avie’s statement falls within that category. But

the question whether Ms. Avie’s statement falls within the

scope of the Clause is not before us, and assuming for the

sake of argument that the statement falls within the

Clause, I agree with the Court’s analysis of the doctrine of

forfeiture by wrongdoing.

Cite as: 554 U. S. ____ (2008) 1

SOUTER, J., concurring in part

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–6053

_________________

DWAYNE GILES, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

[June 25, 2008]

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,

concurring in part.

I am convinced that the Court’s historical analysis is

sound and I join all but Part II–D–2 of the opinion. As the

Court demonstrates, the confrontation right as understood

at the Framing and ratification of the Sixth Amendment

was subject to exception on equitable grounds for an ab-

sent witness’s prior relevant, testimonial statement, when

the defendant brought about the absence with intent to

prevent testimony. It was, and is, reasonable to place the

risk of untruth in an unconfronted, out-of-court statement

on a defendant who meant to preclude the testing that

confrontation provides. The importance of that intent in

assessing the fairness of placing the risk on the defendant

is most obvious when a defendant is prosecuted for the

very act that causes the witness’s absence, homicide being

the extreme example. If the victim’s prior statement were

admissible solely because the defendant kept the witness

out of court by committing homicide, admissibility of the

victim’s statement to prove guilt would turn on finding the

defendant guilty of the homicidal act causing the absence;

evidence that the defendant killed would come in because

the defendant probably killed. The only thing saving

admissibility and liability determinations from question

begging would be (in a jury case) the distinct functions of

judge and jury: judges would find by a preponderance of

2 GILES v. CALIFORNIA

SOUTER, J., concurring in part

evidence that the defendant killed (and so would admit the

testimonial statement), while the jury could so find only

on proof beyond a reasonable doubt. Equity demands

something more than this near circularity before the right

to confrontation is forfeited, and more is supplied by show-

ing intent to prevent the witness from testifying. Cf.

Davis v. Washington, 547 U. S. 813, 833 (2006).

It is this rationale for the limit on the forfeiture excep-

tion rather than a dispositive example from the historical

record that persuades me that the Court’s conclusion is

the right one in this case. The contrast between the

Court’s and JUSTICE BREYER’s careful examinations of the

historical record tells me that the early cases on the excep-

tion were not calibrated finely enough to answer the nar-

row question here. The historical record as revealed by

the exchange simply does not focus on what should be

required for forfeiture when the crime charged occurred in

an abusive relationship or was its culminating act; today’s

understanding of domestic abuse had no apparent signifi-

cance at the time of the Framing, and there is no

early example of the forfeiture rule operating in that

circumstance.

Examining the early cases and commentary, however,

reveals two things that count in favor of the Court’s un-

derstanding of forfeiture when the evidence shows domes-

tic abuse. The first is the substantial indication that the

Sixth Amendment was meant to require some degree of

intent to thwart the judicial process before thinking it

reasonable to hold the confrontation right forfeited; other-

wise the right would in practical terms boil down to a

measure of reliable hearsay, a view rejected in Crawford v.

Washington, 541 U. S. 36 (2004). The second is the ab-

sence from the early material of any reason to doubt that

the element of intention would normally be satisfied by

the intent inferred on the part of the domestic abuser in

the classic abusive relationship, which is meant to isolate

Cite as: 554 U. S. ____ (2008) 3

SOUTER, J., concurring in part

the victim from outside help, including the aid of law

enforcement and the judicial process. 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, say in a fit of anger.

The Court’s conclusion in Part II–E thus fits the rationale

that equity requires and the historical record supports.

Cite as: 554 U. S. ____ (2008) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–6053

_________________

DWAYNE GILES, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

[June 25, 2008]

JUSTICE BREYER, with whom JUSTICE STEVENS and

JUSTICE KENNEDY join, dissenting.

In Crawford v. Washington, 541 U. S. 36 (2004), we held

that the Sixth Amendment’s Confrontation Clause bars

admission against a criminal defendant of an un-cross-

examined “testimonial” statement that an unavailable

witness previously made out of court. Id., at 68. We

simultaneously recognized an exception: that the defen-

dant, by his own “wrongdoing,” can forfeit “on essentially

equitable grounds” his Confrontation Clause right. Id., at

62. In Davis v. Washington, 547 U. S. 813 (2006), we

again recognized this exception, stating that “one who

obtains the absence of a witness by wrongdoing forfeits the

constitutional right to confrontation.” Id., at 833.

This case involves a witness who, crying as she spoke,

told a police officer how her former boyfriend (now, the

defendant) had choked her, “opened a folding knife,” and

“threatened to kill her.” Ante, at 2 (opinion of the Court).

Three weeks later, the defendant did kill her. At his

murder trial, the defendant testified that he had acted in

self-defense. To support that assertion, he described the

victim as jealous, vindictive, aggressive, and violent. To

rebut the defendant’s claim of self-defense and impeach

his testimony, the State introduced into evidence the

witness’ earlier uncross-examined statements (as state

hearsay law permits it to do) to help rebut the defendant’s

2 GILES v. CALIFORNIA

BREYER, J., dissenting

claim of self-defense. It is important to underscore that

this case is premised on the assumption, not challenged

here, that the witness’ statements are testimonial for

purposes of the Confrontation Clause. With that under-

standing, we ask whether the defendant, through his

wrongdoing, has forfeited his Confrontation Clause right.

The Court concludes that he may not have forfeited that

right. In my view, however, he has.

I

Like the majority, I believe it important to recognize the

relevant history and I start where the majority starts,

with Lord Morley’s Case, 6 How. St. Tr. 769 (H. L. 1666).

In that case, the judges of the House of Lords wrote that a

coroner’s out-of-court “examinations” of witnesses “might

be read” in court if “the witnesses . . . were dead or unable

to travel.” Id., at 770. Additionally, they agreed, an ex-

amination “might be read” if the “witness who had been

examined by the coroner, and was then absent, was de-

tained by the means or procurement of the prisoner.” Id.,

at 770–771 (emphasis added). Later cases repeated this

rule and followed it, admitting depositions where, e.g.,

“there ha[d] been evidence given of ill practice to take [the

witness] out of the way,” Harrison’s Case, 12 How. St. Tr.

833, 868 (H. L. 1692), where “the prisoner ha[d], by

fraudulent and indirect means, procured a person that

hath given information against him to a proper magis-

trate, to withdraw himself,” Lord Fenwick’s Case, 13 How.

St. Tr. 537, 594 (H. C. 1696), where the prisoner “had

resorted to a contrivance to keep the witness out of the

way,” Queen v. Scaife, 17 Ad. E. 238, 242, 117 Eng. Rep.

1271, 1273 (Q. B. 1851), and so forth.

Nineteenth-century American case law on the subject

said approximately the same thing. See Reynolds v.

United States, 98 U. S. 145, 158 (1879). For example, an

1819 South Carolina case held that a witness’ prior formal

Cite as: 554 U. S. ____ (2008) 3

BREYER, J., dissenting

examination could be admitted because “the witness had

been kept away by the contrivance of the opposite party.”

Drayton v. Wells, 10 S. C. L. 409, 411. An 1856 Georgia

case, relying on Lord Morley’s Case, held that a similar

“examination should be read” if the witness “was detained

by means or procurement of the prisoner.” Williams v.

State, 19 Ga. 403. And in 1878, this Court held that “if a

witness is absent by [the defendant’s] . . . own wrongful

procurement, he cannot complain” about the admission of

the witness’ prior testimonial statement. Reynolds, supra,

at 158.

Reynolds stated that, “if [the defendant] voluntarily

keeps the witnesses away, he cannot insist on” the “privi-

lege of being confronted with the witnesses against him,”

in part because of Lord Morley’s Case and in part because

the rule of forfeiture “has its foundation in the maxim that

no one shall be permitted to take advantage of his own

wrong . . . a maxim based on the principles of common

honesty.” 98 U. S., at 158–159.

These sources make clear that “forfeiture by wrongdo-

ing” satisfies Crawford’s requirement that the Confronta-

tion Clause be “read as a reference to the right of confron-

tation at common law” and that “any exception” must be

“established at the time of the founding.” 541 U. S., at 54.

The remaining question concerns the precise metes and

bounds of the forfeiture by wrongdoing exception. We ask

how to apply that exception in the present case.

II

There are several strong reasons for concluding that the

forfeiture by wrongdoing exception applies here—reasons

rooted in common-law history, established principles of

criminal law and evidence, and the need for a rule that

can be applied without creating great practical difficulties

and evidentiary anomalies.

First, the language that courts have used in setting

4 GILES v. CALIFORNIA

BREYER, J., dissenting

forth the exception is broad enough to cover the wrongdo-

ing at issue in the present case (murder) and much else

besides. A witness whom a defendant murders is kept

from testifying “by the means . . . of the prisoner” i.e., the

defendant, Lord Morley’s Case, supra, at 771; murder is

indeed an “ill practice,” that leads to the witness’ absence,

Harrison’s Case, supra, at 868; one can fairly call a mur-

der a “contrivance to keep the witness out of the way”,

Queen v. Scaife, supra, at 242, 117 Eng. Rep., at 1273;

murder, if not a “fraudulent and indirect means” of keep-

ing the witness from testifying, is a far worse, direct one,

Fenwick’s Case, supra, at 594; and when a witness is

“absent” due to murder, the killer likely brought about

that absence by his “own wrongful procurement,” Rey-

nolds, supra, at 158. All of the relevant English and

American cases use approximately similar language. See,

e.g., 1 G. Gilbert, Law of Evidence 214–215 (1791) (exami-

nations are “to be read on the Trial” where it can be

proved that the witness is “kept back from appearing by

the means and procurement of the prisoner”). And I have

found no case that uses language that would not bring a

murder and a subsequent trial for murder within its scope.

Second, an examination of the forfeiture rule’s basic

purposes and objectives indicates that the rule applies

here. At the time of the founding, a leading treatise writer

described the forfeiture rule as designed to assure that the

prisoner “shall never be admitted to shelter himself by

such evil Practices on the Witness, that being to give him

Advantage of his own Wrong.” Id., at 214–215. This

Court’s own leading case explained the exception as find-

ing its “foundation in the maxim that no one shall be

permitted to take advantage of his own wrong.” Reynolds,

supra, at 159. What more “evil practice,” what greater

“wrong,” than to murder the witness? And what greater

evidentiary “advantage” could one derive from that wrong

than thereby to prevent the witness from testifying, e.g.,

Cite as: 554 U. S. ____ (2008) 5

BREYER, J., dissenting

preventing the witness from describing a history of physi-

cal abuse that is not consistent with the defendant’s claim

that he killed her in self-defense?

Third, related areas of the law motivated by similar

equitable principles treat forfeiture or its equivalent simi-

larly. The common law, for example, prohibits a life in-

surance beneficiary who murders an insured from recover-

ing under the policy. See, e.g., New York Mut. Life Ins. Co.

v. Armstrong, 117 U. S. 591, 600 (1886) (“It would be a

reproach to the jurisprudence of the country, if one could

recover insurance money payable on the death of a party

whose life he had feloniously taken”). And it forbids re-

covery when the beneficiary “feloniously kills the insured,

irrespective of the purpose.” National Life Ins. Co. v.

Hood’s Adm’r, 264 Ky. 516, 518, 94 S. W. 2d 1022, 1023

(Ct. App. 1936) (emphasis added) (“no difference of opinion

among the courts” on the matter). Similarly, a beneficiary

of a will who murders the testator cannot inherit under

the will. See 1 W. Page, Wills §17.19, pp. 999–1001

(2003). And this is so “whether the crime was committed

for that very purpose or with some other felonious design.”

Van Alstyne v. Tuffy, 103 Misc. 455, 459, 169 N. Y. S. 173,

175 (1918); see also 1 Page, supra, §17.19, at 1002 (“[T]his

common law doctrine applies alike whether the devisee is

guilty of murder, or of manslaughter” (footnote omitted));

see generally H. Hart & A. Sacks, The Legal Process:

Basic Problems in the Making and Application of Law 76–

94 (W. Eskridge & P. Frickey eds. 1994) (discussing so-

called “slayer’s rules”); Wade, Acquisition of Property by

Willfully Killing Another—A Statutory Solution, 49 Harv.

L. Rev. 715, 716 (1936) (“[I]t must be recognized that . . .

the adoption of some means to prevent a slayer from ac-

quiring property as the result of the death of a man whom

he has killed is desirable”).

Fourth, under the circumstances presented by this case,

there is no difficulty demonstrating the defendant’s intent.

6 GILES v. CALIFORNIA

BREYER, J., dissenting

This is because the defendant here knew that murdering

his ex-girlfriend would keep her from testifying; and that

knowledge is sufficient to show the intent that law ordi-

narily demands. As this Court put the matter more than a

century ago: A “ ‘man who performs an act which it is

known will produce a particular result is from our common

experience presumed to have anticipated that result and

to have intended it.’ ” Allen v. United States, 164 U. S.

492, 496 (1896); see United States v. Aguilar, 515 U. S.

593, 613 (1995) (SCALIA, J., dissenting) (“[T]he jury is

entitled to presume that a person intends the natural and

probable consequences of his acts”); see also G. Williams,

Criminal Law §18, p. 38 (2d ed. 1961) (“There is one situa-

tion where a consequence is deemed to be intended though

it is not desired. This is where it is foreseen as substan-

tially certain”); ALI, Model Penal Code §2.02(2)(b)(ii)

(1962) (a person acts “knowingly” if “the element involves

a result of his conduct” and “he is aware that it is practi-

cally certain that his conduct will cause such a result”);

Restatement (Second) of Torts §8A (1977) (“The word

‘intent’ is used throughout . . . to denote that the actor

desires to cause consequences of his act, or that he be-

lieves that the consequences are substantially certain to

result from it”).

With a few criminal law exceptions not here relevant,

the law holds an individual responsible for consequences

known likely to follow just as if that individual had in-

tended to achieve them. A defendant, in a criminal or a

civil case, for example, cannot escape criminal or civil

liability for murdering an airline passenger by claiming

that his purpose in blowing up the airplane was to kill

only a single passenger for her life insurance, not the

others on the same flight. See 1 W. LaFave, Substantive

Criminal Law §5.2(a), p. 341 (2003).

This principle applies here. Suppose that a husband, H,

knows that after he assaulted his wife, W, she gave state-

Cite as: 554 U. S. ____ (2008) 7

BREYER, J., dissenting

ments to the police. Based on the fact that W gave state-

ments to the police, H also knows that it is possible he will

be tried for assault. If H then kills W, H cannot avoid

responsibility for intentionally preventing W from testify-

ing, not even if H says he killed W because he was angry

with her and not to keep her away from the assault trial.

Of course, the trial here is not for assault; it is for murder.

But I should think that this fact, because of the nature of

the crime, would count as a stronger, not a weaker, reason

for applying the forfeiture rule. Nor should it matter that

H, at the time of the murder, may have believed an assault

trial more likely to take place than a murder trial, for W’s

unavailability to testify at any future trial was a certain

consequence of the murder. And any reasonable person

would have known it. Cf. United States v. Falstaff Brew-

ing Corp., 410 U. S. 526, 570, n. 22 (1973) (Marshall, J.,

concurring in result) (“[P]erhaps the oldest rule of evi-

dence—that a man is presumed to intend the natural and

probable consequences of his acts—is based on the com-

mon law’s preference for objectively measurable data over

subjective statements of opinion and intent”).

The majority tries to overcome this elementary legal

logic by claiming that the “forfeiture rule” applies, not

where the defendant intends to prevent the witness from

testifying, but only where that is the defendant’s purpose,

i.e., that the rule applies only where the defendant acts

from a particular motive, a desire to keep the witness from

trial. See ante, at 5–6 (asserting that the terms used to

describe the scope of the forfeiture rule “suggest that the

exception applied only when the defendant engaged in

conduct designed to prevent the witness from testifying”

and that a “purpose-based definition . . . governed”). But

the law does not often turn matters of responsibility upon

motive, rather than intent. See supra, at 5. And there

is no reason to believe that application of the rule of for-

feiture constitutes an exception to this general legal

8 GILES v. CALIFORNIA

BREYER, J., dissenting

principle.

Indeed, to turn application of the forfeiture rule upon

proof of the defendant’s purpose (rather than intent), as

the majority does, creates serious practical evidentiary

problems. Consider H who assaults W, knows she has

complained to the police, and then murders her. H knows

that W will be unable to testify against him at any future

trial. But who knows whether H’s knowledge played a

major role, a middling role, a minor role, or no role at all,

in H’s decision to kill W? Who knows precisely what

passed through H’s mind at the critical moment? See, e.g.,

State v. Romero, 2007–NMSC–013, 156 P. 3d 694, 702–703

(finding it doubtful that evidence associated with the

murder would support a finding that the purpose of the

murder was to keep the victim’s earlier statements to

police from the jury).

Moreover, the majority’s insistence upon a showing of

purpose or motive cannot be squared with the exception’s

basically ethical objective. If H, by killing W, is able to

keep W’s testimony out of court, then he has successfully

“take[n] advantage of his own wrong.” Reynolds, 98 U. S.,

at 159. And he does so whether he killed her for the pur-

pose of keeping her from testifying, with certain knowledge

that she will not be able to testify, or with a belief that

rises to a reasonable level of probability. The inequity

consists of his being able to use the killing to keep out of

court her statements against him. That inequity exists

whether the defendant’s state of mind is purposeful, inten-

tional (i.e., with knowledge), or simply probabilistic.

Fifth, the majority’s approach both creates evidentiary

anomalies and aggravates existing evidentiary incongrui-

ties. Contrast (a) the defendant who assaults his wife and

subsequently threatens her with harm if she testifies, with

(b) the defendant who assaults his wife and subsequently

murders her in a fit of rage. Under the majority’s inter-

pretation, the former (whose threats make clear that his

Cite as: 554 U. S. ____ (2008) 9

BREYER, J., dissenting

purpose was to prevent his wife from testifying) cannot

benefit from his wrong, but the latter (who has committed

what is undoubtedly the greater wrong) can. This is

anomalous, particularly in this context where an equitable

rule applies.

Now consider a trial of H for the murder of W at which

H claims self-defense. As the facts of this very case dem-

onstrate, H may be allowed to testify at length and in

damning detail about W’s behavior—what she said as well

as what she did—both before and during the crime. See,

e.g., Tr. 643–645 (Apr. 1, 2003). H may be able to intro-

duce some of W’s statements (as he remembers them)

under hearsay exceptions for excited utterances or present

sense impressions or to show states of mind (here the

victim’s statements were admitted through petitioner’s

testimony to show her state of mind). W, who is dead,

cannot reply. This incongruity arises in part from the

nature of hearsay and the application of ordinary hearsay

rules. But the majority would aggravate the incongruity

by prohibiting admission of W’s out-of-court statements to

the police (which contradict H’s account), even when they

too fall within a hearsay exception, simply because there

is no evidence that H was focused on his future trial when

he killed her. There is no reason to do so.

Consider also that California’s hearsay rules authorize

admission of the out-of-court statement of an unavailable

declarant where the statement describes or explains the

“infliction or threat of physical injury upon the declarant,”

if the “statement” was “made at or near the time of the

infliction or threat of physical injury.” Cal. Evid. Code

Ann. §1370 (Supp. 2008). Where a victim’s statement is

not “testimonial,” perhaps because she made it to a nurse,

the statement could come into evidence under this rule.

But where the statement is made formally to a police

officer, the majority’s rule would keep it out. Again this

incongruity arises in part because of pre-existing confron-

10 GILES v. CALIFORNIA

BREYER, J., dissenting

tation-related rules. See Davis, 547 U. S., at 830, n. 5

(“[F]ormality is indeed essential to testimonial utterance”).

But, again, the majority would aggravate the incongruity

by prohibiting admission of W’s out-of-court statements to

the police simply because there is no evidence that H was

focused on his future trial when he killed her. Again,

there is no reason to do so.

Sixth, to deny the majority’s interpretation is not to

deny defendants evidentiary safeguards. It does, of

course, in this particular area, deny defendants the right

always to cross-examine. But the hearsay rule has always

contained exceptions that permit the admission of evi-

dence where the need is significant and where alternative

safeguards of reliability exist. Those exceptions have

evolved over time, see 2 K. Brown, McCormick on Evi-

dence §326 (2006) (discussion the development of the

modern hearsay rule); Fed. Rule Evid. 102 (“[T]hese rules

shall be construed to secure . . . promotion of growth

and development of the law of evidence”), often in a direc-

tion that permits admission of hearsay only where ade-

quate alternative assurance of reliability exists, see, e.g.,

Rule 807 (the “Residual Exception”). Here, for example,

the presence in court of a witness who took the declarant’s

statement permits cross-examination of that witness as to

just what the declarant said and as to the surrounding

circumstances, while those circumstances themselves

provide sufficient guarantees of accuracy to warrant ad-

mission under a State’s hearsay exception. See Cal. Evid.

Code Ann. §1370.

More importantly, to apply the forfeiture exception here

simply lowers a constitutional barrier to admission of

earlier testimonial statements; it does not require their

admission. State hearsay rules remain in place; and those

rules will determine when, whether, and how evidence of

the kind at issue here will come into evidence. A State, for

example, may enact a forfeiture rule as one of its hearsay

Cite as: 554 U. S. ____ (2008) 11

BREYER, J., dissenting

exceptions, while simultaneously reading into that rule

requirements limiting its application. See ante, at 13–14,

n. 2. To lower the constitutional barrier to admission is to

allow the States to do just that, i.e., to apply their eviden-

tiary rules with flexibility and to revise their rules as

experience suggests would be advisable. The majority’s

rule, which requires exclusion, would deprive the States of

this freedom and flexibility.

III

A

The majority tries to find support for its view in 17th-,

18th-, and 19th-century law of evidence. But a review of

the cases set forth in Part I, supra, makes clear that no

case limits forfeiture to instances where the defendant’s

purpose or motivation is to keep the witness away. See

supra, at 2–3. To the contrary, this Court stated in Rey-

nolds that the “Constitution does not guarantee an ac-

cused person against the legitimate consequences of his

own wrongful acts.” 98 U. S., at 158 (emphasis added).

The words “legitimate consequences” do not mean “desired

consequences” or refer to purpose or motive; in fact, the

words “legitimate consequences” can encompass imputed

consequences as well as intended consequences. And this

Court’s statement in Reynolds that the rule “has its foun-

dation in the maxim that no one shall be permitted to take

advantage of his own wrong” suggests that forfeiture

applies where the defendant benefits from a witness’

absence, regardless of the defendant’s specific purpose.

Id., at 159.

Rather than limit forfeiture to instances where the

defendant’s act has absence of the witness as its purpose,

the relevant cases suggest that the forfeiture rule would

apply where the witness’ absence was the known conse-

quence of the defendant’s intentional wrongful act. Lord

Morley’s Case and numerous others upon which the forfei-

12 GILES v. CALIFORNIA

BREYER, J., dissenting

ture rule is based say that a Marian deposition (i.e., a

deposition taken by a coroner or magistrate pursuant to

the Marian bail and commitment statutes) may be read to

the jury if the witness who was absent was detained “by

means or procurement of the prisoner.” Lord Morley’s

Case, 6 How. St. Tr., at 771. The phrase “by means of”

focuses on what the defendant did, not his motive for (or

purpose in) doing it. In Diaz v. United States, 223 U. S.

442 (1912), which followed Reynolds, this Court used the

word “by” (the witness was absent “by the wrongful act of”

the accused), a word that suggests causation, not motive

or purpose. Id., at 452; see Eureka Lake & Yuba Canal

Co. v. Superior Court of Yuba Cty., 116 U. S. 410, 418

(1886). And in Motes v. United States, 178 U. S. 458, 473–

474 (1900), the Court spoke of absence “with the assent of”

the defendant, a phrase perfectly consistent with an ab-

sence that is a consequence of, not the purpose of, what the

assenting defendant hoped to accomplish.

Petitioner’s argument that the word “procurement”

implies purpose or motive is unpersuasive. See Brief for

Petitioner 26–28. Although a person may “procure” a

result purposefully, a person may also “procure” a result

by causing it, as the word “procure” can, and at common

law did, mean “cause,” “bring about,” and “effect,” all

words that say nothing about motive or purpose. 2 N.

Webster, An American Dictionary of the English Lan-

guage (1828); see also 2 C. Richardson, New Dictionary of

the English Language 1514 (1839) (defining “procure” to

mean “[t]o take care for; to take care or heed, . . . that any

thing be done; to urge or endeavor, to manage or contrive

that it be done; to acquire; to obtain”). The majority’s

similar argument about the word “contrivance” fares no

better. See ante, at 6 (citing, e.g., 1 J. Chitty, A Practical

Treatise on the Criminal Law 81 (1816) (hereinafter

Chitty) (“kept away by the means and contrivance of the

prisoner”)). Even if a defendant had contrived, i.e., de-

Cite as: 554 U. S. ____ (2008) 13

BREYER, J., dissenting

vised or planned, to murder a victim, thereby keeping her

away, it does not mean that he did so with the purpose of

keeping her away in mind. Regardless, the relevant

phrase in Lord Morley’s Case is “by means or procurement

of” the defendant. 6 How. St. Tr., at 771 (emphasis added).

And, as I have explained, an absence “by means of” the

defendant’s actions may, or may not, refer to an absence

that the defendant desired, as compared to an absence

that the defendant caused.

The sole authority that expressly supports the major-

ity’s interpretation is an 1858 treatise stating that deposi-

tions were admissible if the witness “had been kept out of

the way by the prisoner, or by some one on the prisoner’s

behalf, in order to prevent him from giving evidence

against him.” E. Powell, Practice of the Law of Evidence

166. This treatise was written nearly 70 years after the

founding; it does not explain the basis for this conclusion;

and, above all, it concerns a complete exception to the

hearsay rule. Were there no such limitation, all a murder

victim’s hearsay statements, not simply the victim’s testi-

monial statements, could be introduced into evidence.

Here we deal only with a constitutional bar to the admis-

sion of testimonial statements. And an exception from the

general constitutional bar does not automatically admit

the evidence. Rather, it leaves the State free to decide, via

its own hearsay rules and hearsay exceptions, which such

statements are sufficiently reliable to admit.

B

Given the absence of any evidence squarely requiring

purpose rather than intent, what is the majority to say?

The majority first tries to draw support from the absence

of any murder case in which the victim’s Marian state-

ment was read to the jury on the ground that the defen-

dant had killed the victim. See ante, at 7–10. I know of no

instance in which this Court has drawn a conclusion about

14 GILES v. CALIFORNIA

BREYER, J., dissenting

the meaning of a common-law rule solely from the absence

of cases showing the contrary—at least not where there

are other plausible explanations for that absence. And

there are such explanations here.

The most obvious reason why the majority cannot find

an instance where a court applied the rule of forfeiture at

a murder trial is that many (perhaps all) common-law

courts thought the rule of forfeiture irrelevant in such

cases. In a murder case, the relevant witness, the murder

victim, was dead; and historical legal authorities tell us

that, when a witness was dead, the common law admitted

a Marian statement. See, e.g., Lord Morley’s Case, supra,

at 770–77 (Marian depositions “might be read” if the

witness was “dead or unable to travel”); King v. Woodcock,

1 Leach 500, 502, 168 Eng. Rep. 352, 353 (1789) (“[I]f the

deponent should die between the time of examination and

the trial of the prisoner, [the Marian deposition] may be

substituted in the room of that viva voce testimony which

the deponent, if living, could alone have given, and is

admitted of necessity as evidence of the fact”); J. Archbold,

A Summary of the Law Relative to Pleading and Evidence

in Criminal Cases 85 (1822) (where a witness was “dead,”

“unable to travel,” or “kept away by the means or pro-

curement of the prisoner,” Marian depositions “may be

given in evidence against the prisoner”). Because the

Marian statements of a deceased witness were admissible

simply by virtue of the witness’ death, there would have

been no need to argue for their admission pursuant to a

forfeiture rule.

Historical authorities also tell us that a Marian state-

ment could not be admitted unless it was a proper Marian

deposition, meaning that the statement was given in the

presence of the defendant thereby providing an opportu-

nity to cross-examine the witness. And this was the case

whether the witness’ unavailability was due to death or

the “means or procurement” of the defendant. See, e.g.,

Cite as: 554 U. S. ____ (2008) 15

BREYER, J., dissenting

ibid. (Where a witness was “dead,” “unable to travel,” or

“kept away by the means or procurement of the prisoner”

depositions could be read but they “must have been taken

in the presence of the prisoner, so that he might have had

an opportunity of cross examining the witness” (emphasis

added)); 2 W. Hawkins, Pleas of the Crown 605–606 (6th

ed. 1787) (hereinafter Hawkins); Chitty, 78–80; 2 J.

Bishop, New Criminal Procedure §§1194–1195, pp. 1020–

1022 (2d ed. 1913) (hereinafter Bishop); Lord Fenwick’s

Case, 13 Haw., at 602. Thus, in a murder trial, where the

witness was dead, either the Marian statement was proper

and it came into evidence without the forfeiture exception;

or it was improper and the forfeiture exception could not

have helped it come in. Cf. King v. Dingler, 2 Leach 561,

563, 168 Eng. Rep. 383, 384 (1791) (a top barrister of the

day argued successfully that “it is utterly impossible,

unless the prisoner had been present [at the Marian depo-

sition], that depositions thus taken can be read”). No

wonder then that the majority cannot find a murder case

that refers directly to the forfeiture exception. Common-

law courts likely thought the forfeiture exception irrele-

vant in such a case.

The majority highlights two common-law murder cases

that demonstrate this point—King v. Woodcock and King

v. Dingler. See ante, at 7–9. As the majority explains, in

each of these two cases, the defendant stood accused of

killing his wife. In each case, the victim had given an

account of the crime prior to her death. And in each case,

the court refused to admit the statements (statements that

might have been admitted simply by virtue of the fact that

the witness had died) on the ground that they were not

properly taken Marian statements, i.e., not made in the

presence of the defendant. Because admission pursuant to

the forfeiture rule also would have required the state-

ments to have been properly taken, there would have been

no reason to argue for their admission on that basis.

16 GILES v. CALIFORNIA

BREYER, J., dissenting

Instead, in each case, the prosecution argued that the

statement be admitted as a dying declaration. In Wood-

cock, depending on the account, the court either instructed

the jury to consider whether the statements were made

“under the apprehension of death,” or determined for itself

that they were and admitted them into evidence. 1 Leach,

at 504, 168 Eng. Rep., at 354; see 1 E. East, Pleas of the

Crown 356 (1803) (reprinted 2004). In Dingler, because

the Crown admitted that the statements were not made

“under apprehension of immediate death,” the statements

were excluded. 2 Leach, at 563, 168 Eng. Rep., at 384.

The forfeiture rule thus had no place in Woodcock or Din-

gler, not because of the state of mind of the defendant

when he committed his crime, but because the victim’s

testimony was not a properly taken Marian statement.

The American murder cases to which the majority refers

provide it no more support. See ante, at 9 (citing United

States v. Woods, 28 F. Cas. 762, 763 (CC DC 1834); Lewis

v. State, 17 Miss. 115, 120 (1847); Montgomery v. State, 11

Ohio 424, 425–426 (1842); Nelson v. State, 26 Tenn. 542,

543 (1847); Smith v. State, 28 Tenn. 9, 23 (1848)). Like

Woodcock and Dingler, these are dying declaration cases.

While it is true that none refers to the forfeiture exception,

it is also true that none of these cases involved a previ-

ously given proper Marian deposition or its equivalent.

There are other explanations as well for the absence of

authority to which the majority points. The defendant’s

state of mind only arises as an issue in forfeiture cases

where the witness has made prior statements against the

defendant and where there is a possible motive for the

killing other than to prevent the witness from testifying.

(Where that motive is certain, for example where the

defendant knows the witness only because she has previ-

ously testified against him, the prior statements would be

admitted under the majority’s purpose rule and the ques-

tion of intent would not come up.) We can see from mod-

Cite as: 554 U. S. ____ (2008) 17

BREYER, J., dissenting

ern cases that this occurs almost exclusively in the domes-

tic violence context, where a victim of the violence makes

statements to the police and where it is not certain

whether the defendant subsequently killed her to prevent

her from testifying, to retaliate against her for making

statements, or in the course of another abusive incident.

But 200 years ago, it might have been seen as futile for

women to hale their abusers before a Marian magistrate

where they would make such a statement. See, e.g., State

v. Rhodes, 61 N. C. 453, 459 (1868) (per curiam) (“We will

not inflict upon society the greater evil of raising the

curtain upon domestic privacy, to punish the lesser evil of

trifling violence”).

I also recognize the possibility that there are too few old

records available for us to draw firm conclusions. Indeed,

the “continuing confusion about the very nature of the law

of evidence at the end of the eighteenth century under-

scores how primitive and undertheorized the subject then

was.” See J. Langbein, The Origins of Adversary Criminal

Trial 248 (2003).

Regardless, the first explanation—that the forfeiture

doctrine could not have helped admit an improperly taken

Marian deposition—provides a sufficient ground to con-

clude that the majority has found nothing in the common-

law murder cases, domestic or foreign, that contradicts the

traditional legal principles supporting application of the

rule of forfeiture here. See Williams, Criminal Law §18,

at 39 (relying on sources at common law for the proposi-

tion that the accused “necessarily intends that which must

be the consequence of the act” (internal quotation marks

omitted)); LaFave, Substantive Criminal Law §5.2(a), at

341 (“the traditional view is that a person who acts . . .

intends a result of his act . . . when he knows that that

result is practically certain to follow from his conduct,

whatever his desire may be as to that result”).

The majority next points to a second line of common-law

18 GILES v. CALIFORNIA

BREYER, J., dissenting

cases, cases in which a court admitted a murdered wit-

ness’ “dying declaration.” But those cases do not support

the majority’s conclusion. A dying declaration can come

into evidence when it is “made in extremity” under a sense

of impending death, “when every hope of this world is

gone: when every motive to falsehood is silenced, and the

mind is induced by the most powerful considerations to

speak the truth.” Woodcock, supra, at 502, 168 Eng. Rep.,

at 353; see King v. Drummond, 1 Leach 337, 338, 168 Eng.

Rep. 271, 272 (1784) (“[T]he mind, impressed with the

awful idea of approaching dissolution, acts under a sanc-

tion equally powerful with that which it is presumed to

feel by a solemn appeal to God upon an oath”); see also

Hawkins 619, n. 10; Mattox v. United States, 156 U. S.

237, 243–244 (1895). The majority notes that prosecutors

did not attempt to obtain admission of dying declarations

on forfeiture grounds before trying to meet these strict

“dying declaratio[n]” requirements. See ante, at 10. This

failure, it believes, supports its conclusion that admission

pursuant to the forfeiture exception required a showing

that the defendant killed the witness with the purpose of

securing the absence of that witness at trial.

There is a simpler explanation, however, for the fact

that parties did not argue forfeiture in “dying declaration”

cases. And it is the explanation I have already mentioned.

The forfeiture exception permitted admission only of a

properly taken Marian deposition. And where death was

at issue, the forfeiture exception was irrelevant. In other

words, if the Marian deposition was proper, the rule of

forfeiture was unnecessary; if the deposition was im-

proper, the rule of forfeiture was powerless to help. That

is why we find lawyers in “dying declaration” cases argu-

ing that the dying declaration was either a proper Marian

deposition (in which case it was admitted) or it was a

“dying declaration” (in which case it was admitted), or

both. See, e.g., Dingler, supra, at 562, 168 Eng. Rep., at

Cite as: 554 U. S. ____ (2008) 19

BREYER, J., dissenting

383–384 (discussing the admission of statements either

“as a deposition taken pursuant to the [Marian] statutes”

or, in the alternative, “as the dying declaration of a party

conscious of approaching dissolution”); King v. Radbourne,

1 Leach 457, 46–461, 168 Eng. Rep. 330, 332 (1787)

(same); People v. Restell, 3 Hill 289 (N. Y. 1842) (same);

see also Chitty 79–81. Under these circumstances, there

would have been little reason to add the word “forfeiture.”

For the same reason, we can find “dying declarations”

admitted in murder cases where no proper Marian deposi-

tion existed, see, e.g., King v. Woodcock, 1 Leach 500, 168

Eng. Rep. 352; 1 East, Pleas of the Crown, at 356, or in

cases involving, say, wills or paternity disputes, where

Marian statements were not at all at issue, see 5 J. Wig-

more, Evidence §1431, p. 277, n. 2 (J. Chadbourn rev.

1974) (citing such cases from the 18th and 19th centuries).

Cf. Langbein, supra, at 245–246, nn. 291, 292 (at common

law, there existed both oath-based and cross-examination-

based rationales for the hearsay rule, with the latter only

becoming dominant around the turn of the 19th century

(citing Gallanis, The Rise of Modern Evidence Law, 84

Iowa L. Rev. 499, 516–550 (1999))).

The upshot is that the majority fails to achieve its basic

objective. It cannot show that the common law insisted

upon a showing that a defendant’s purpose or motive in

killing a victim was to prevent the victim from testifying.

At the least its authority is consistent with my own view,

that the prosecution in such a case need show no more

than intent (based on knowledge) to do so. And the most

the majority might show is that the common law was not

clear on the point.

IV

A

The majority makes three arguments in response. First,

it says that I am wrong about unconfronted statements at

20 GILES v. CALIFORNIA

BREYER, J., dissenting

common law. According to the majority, when courts

found wrongful procurement, they admitted a defendant’s

statements without regard to whether they were con-

fronted. See ante, at 15–19. That being so, the majority’s

argument goes, one must wonder why no one argued for

admissibility under the forfeiture rule in, say, Woodcock or

Dingler. See ante, at 7–11. The reason, the majority

concludes, is that the forfeiture rule would not have

helped secure admission of the (unconfronted) prior

statements in those cases, because the forfeiture rule

applied only where the defendant purposely got rid of the

witness. See ante, at 7. But the majority’s house of cards

has no foundation; it is built on what is at most common-

law silence on the subject. The cases it cites tell us next to

nothing about admission of unconfronted statements.

Fenwick’s Case, see ante, at 16 n. 3, for example, was a

parliamentary attainder proceeding; Parliament voted to

admit unconfronted statements but it is not clear what

arguments for admission Parliament relied upon. See

generally 13 How. St. Tr. 537. Hence it is not clear that

Parliament admitted unconfronted statements pursuant to

a forfeiture theory. In fact, the forfeiture rule in a felony

case was described in Fenwick’s Case as applying where

the witness “hath given information against [the defen-

dant] to a proper magistrate,” id., at 594 (remarks of

Lovel), i.e., a magistrate who normally would have had the

defendant before him as well.

Harrison’s Case, see ante, at 15–16, did admit an uncon-

fronted statement, but it was a statement made before a

coroner. See 12 How. St. Tr., at 852. Coroner’s state-

ments seem to have had special status that may some-

times have permitted the admission of prior unconfronted

testimonial statements despite lack of cross-examination.

But, if so, that special status failed to survive the Atlantic

voyage. See Crawford, 541 U. S., at 47, n. 2 (early Ameri-

can authorities “flatly rejected any special status for coro-

Cite as: 554 U. S. ____ (2008) 21

BREYER, J., dissenting

ner statements”).

The American case upon which the majority primarily

relies, Rex v. Barber, 1 Root 76 (Conn. Super. Ct. 1775),

see ante, at 16, consists of three sentences that refer to

“[o]ne White, who had testified before the justice and

before the grand-jury against Barber.” 1 Root, at 76.

White was “sent away” at Barber’s “instigation” and the

“court admitted witnesses to relate what White had before

testified.” Ibid. I cannot tell from the case whether

White’s statement was made before a grand jury or was

taken before a justice where cross-examination would

have been possible. At least some commentators seem to

think the latter. See W. Best, The Principles of the Law of

Evidence 467, 473, n. (e) (American ed. 1883) (listing

Barber as a case “of preliminary investigation before a

magistrate” where “evidence ha[d] been admitted, there

having been a right of cross-examination”); 2 Bishop,

§§1194–1197, at 1020–1024 (explaining that where a

witness had been “kept out of the way” by the defendant,

his prior testimony is admissible “if the defendant had the

opportunity to cross-examine the witness against him, not

otherwise,” and giving as a “[f]amiliar illustration” of this

principle cases before a committing magistrate including

Barber); J. Stephen, A Digest of the Law of Evidence 161,

American Note, General (1902) (citing Barber for the

proposition that evidence at a preliminary hearing was

admissible “if the party against whom it is offered was

present).

The majority’s final authority, Williams v. State, 19 Ga.

403 (1856), see ante, at 17, involved the admission of an

“examination” taken by “the committing magistrate.”

Such examinations were ordinarily given in the presence

of the defendant. See R. Greene & J. Lumpkin, Georgia

Justice 99 (1835) (describing procedures relevant to a

magistrate’s examination of a witness in Georgia); see also

M. M’Kinney, The American Magistrate and Civil Officer

235 (1850) (testimony of the accuser and his witnesses

22 GILES v. CALIFORNIA

BREYER, J., dissenting

taken by a magistrate “must be done in the presence of the

party accused, in order that he may have the advantage of

cross-examining the witnesses”).

At the same time, every Supreme Court case to apply

the forfeiture rule has done so in the context of previously

confronted testimony. See, e.g., Reynolds, 98 U. S., at 158

(admitting previously confronted statements pursuant to a

forfeiture rule); Diaz, 223 U. S., at 449 (same); Mattox, 156

U. S., at 240 (same); Motes, 178 U. S., at 470–471 (same).

Of course, modern courts have changed the ancient

common-law forfeiture rule—in my view, for the better.

They now admit unconfronted prior testimonial state-

ments pursuant to such a rule. See, e.g., United States v.

Carlson, 547 F. 2d 1346, 1357–1360 (CA8 1976) (the earli-

est case to do so); United States v. Mastrangelo, 693 F. 2d

269 (CA2 1982); United States v. Rouco, 765 F. 2d 983

(CA11 1985); see also Davis, 547 U. S., at 834. But, as the

dates of these cases indicate, the admission of uncon-

fronted statements under a forfeiture exception is a fairly

recent evidentiary development. The majority evidently

finds this elephant of a change acceptable—as do I. With-

out it, there would be no meaningful modern-day forfei-

ture exception. Why then does the majority strain so hard

at what, comparatively speaking, is a gnat (and a nonexis-

tent gnat at that)?

In sum, I have tried to show the weakness of the foun-

dation upon which the majority erects its claim that the

common law applied the forfeiture rule only where it was

a defendant’s purpose or motive (not his intent based on

knowledge) to keep the witness away. The majority says

that “the most natural reading of the language used at

common law” supports its view. Ante, at 14. As I have

shown, that is not so. See supra, at 3–4. The majority

next points to “the absence of common-law cases admitting

prior statements on a forfeiture theory” where the defen-

dant prevented, but did not purposely prevent, the witness

Cite as: 554 U. S. ____ (2008) 23

BREYER, J., dissenting

from testifying. Ante, at 14. As I have pointed out, this

absence proves nothing because (1) the relevant circum-

stances (there has been a prior testimonial statement, the

witness is now unavailable due to defendant’s actions, and

the defendant knows that the witness will not testify but

that is not his purpose) are likely to arise almost exclu-

sively when the defendant murders the witness, and (2) a

forfeiture theory was ordinarily redundant or useless in

such cases. See supra, at 14–15. The majority, describing

its next argument as “conclusive,” points to “innumerable

cases” where courts did not admit “unconfronted inculpa-

tory testimony by murder victims” against a defendant.

Ante, at 14–15. The majority is referring to those dying

declaration cases in which unconfronted statements were

not admitted because the witness was not sufficiently

aware of his impending death when he made them. See

ante, at 9. But as I have explained, the forfeiture rule

would have been unhelpful under these circumstances.

See supra, at 18. Finally, the majority points to a “subse-

quent history” in the United States where questions about

the defendant’s state of mind did not begin to arise until

the 1980’s. Ante, at 14. I have explained why that history

does not support its view. See supra, at 22. Having only

begun to swallow the elephant in the late 1970’s and early

1980’s, it makes sense that courts would not have previ-

ously considered the gnat.

While I have set forth what I believe is the better read-

ing of the common-law cases, I recognize that different

modern judges might read that handful of cases differ-

ently. All the more reason then not to reach firm conclu-

sions about the precise metes and bounds of a contempo-

rary forfeiture exception by trying to guess the state of

mind of 18th century lawyers when they decided not to

make a particular argument, i.e., forfeiture, in a reported

case. That is why, in Part II, supra, I have set forth other,

more conclusive reasons in support of the way I would

24 GILES v. CALIFORNIA

BREYER, J., dissenting

read the exception.

Second, the majority objects to that aspect of the forfei-

ture rule that requires a judge to make a preliminary

assessment of the defendant’s wrongful act in order to

determine whether the relevant statements should be

admitted. See ante, at 23. But any forfeiture rule requires

a judge to determine as a preliminary matter that the

defendant’s own wrongdoing caused the witness to be

absent. Regardless, preliminary judicial determinations

are not, as the majority puts it “akin . . . to ‘dispensing

with jury trial.’ ” Ante, at 11. (quoting Crawford, 541

U. S., at 62). We have previously said that courts may

make preliminary findings of this kind. For example,

where a defendant is charged with conspiracy, the judge is

permitted to make an initial finding that the conspiracy

existed so as to determine whether a statement can be

admitted under the co-conspirator exception to the hear-

say rule. See Bourjaily v. United States, 483 U. S. 171,

175–176 (1987) (“The inquiry made by a court concerned

with these matters is not whether the proponent of the

evidence wins or loses his case on the merits, but whether

the evidentiary Rules have been satisfied”). And even the

plurality is forced to admit that it is “sometimes” neces-

sary for “judge . . . to inquire into guilt of the charged

offense in order to make a preliminary evidentiary ruling.”

Ante, at 21, n. 6.

Third, the plurality seems to believe that an ordinary

intent requirement, rather than a purpose or motive re-

quirement, would let in too much out-of-court testimonial

evidence. See ante, at 20–22. Ordinarily a murderer

would know that his victim would not be able to testify at

a murder trial. Hence all of the victim’s prior testimonial

statements would come in at trial for use against a defen-

dant. To insist upon a showing of purpose rather than

plain (knowledge-based) intent would limit the amount of

unconfronted evidence that the jury might hear.

Cite as: 554 U. S. ____ (2008) 25

BREYER, J., dissenting

This argument fails to account for the fact that overcom-

ing a constitutional objection does not guarantee admissi-

bility of the testimonial evidence at issue. The States will

still control admissibility through hearsay rules and ex-

ceptions. And why not? What important constitutional

interest is served, say, where a prior testimonial state-

ment of a victim of abuse is at issue, by a constitutional

rule that lets that evidence in if the defendant killed a

victim purposely to stop her from testifying, but keeps it

out if the defendant killed her knowing she could no longer

testify while acting out of anger or revenge?

B

Even the majority appears to recognize the problem

with its “purpose” requirement, for it ends its opinion by

creating a kind of presumption that will transform pur-

pose into knowledge-based intent—at least where domestic

violence is at issue; and that is the area where the prob-

lem is most likely to arise.

JUSTICE SOUTER, concurring in part, says:

“[The requisite] element of intention would normally

be satisfied by the intent inferred on the part of the

domestic abuser in the classic abusive relationship,

which is meant to isolate the victim from outside help,

including the aid of law enforcement and the judicial

process. If the evidence for admissibility shows a con-

tinuing relationship of this sort, it would make no

sense to suggest that the oppressing defendant mi-

raculously abandoned the dynamics of abuse the in-

stant before he killed his victim, say in a fit of anger.”

Ante, at 3.

This seems to say that a showing of domestic abuse is

sufficient to call into play the protection of the forfeiture

rule in a trial for murder of the domestic abuse victim.

Doing so when, in fact, the abuser may have had other

26 GILES v. CALIFORNIA

BREYER, J., dissenting

matters in mind apart from preventing the witness from

testifying, is in effect not to insist upon a showing of “pur-

pose.” Consequently, I agree with this formulation,

though I would apply a simple intent requirement across

the board.

V

The rule of forfeiture is implicated primarily where

domestic abuse is at issue. In such a case, a murder vic-

tim may have previously given a testimonial statement,

say, to the police, about an abuser’s attacks; and introduc-

tion of that statement may be at issue in a later trial for

the abuser’s subsequent murder of the victim. This is not

an uncommon occurrence. Each year, domestic violence

results in more than 1,500 deaths and more than 2 million

injuries; it accounts for a substantial portion of all homi-

cides; it typically involves a history of repeated violence;

and it is difficult to prove in court because the victim is

generally reluctant or unable to testify. See Bureau of

Justice Statistics, Homicide trends in the U. S.,

http://www.ojp.usdoj.gov/bjs/homicide/tables/relationshipt

ab.htm (as visited June 23, 2008, and available in Clerk of

Court’s case file); Dept. of Health and Human Services,

Centers for Disease Control and Prevention, National

Center for Injury Prevention and Control, Costs of Inti-

mate Partner Violence Against Women in the United

States 19 (2003); N. Websdale, Understanding Domestic

Homicide 207 (1999); Lininger, Prosecuting Batterers

after Crawford, 91 Va. L. Rev. 747, 751, 768–769 (2005).

Regardless of a defendant’s purpose, threats, further

violence, and ultimately murder, can stop victims from

testifying. See id., at 769 (citing finding that batterers

threaten retaliatory violence in as many as half of all

cases, and 30 percent of batterers assault their victims

again during the prosecution). A constitutional eviden-

tiary requirement that insists upon a showing of purpose

Cite as: 554 U. S. ____ (2008) 27

BREYER, J., dissenting

(rather than simply intent or probabilistic knowledge) may

permit the domestic partner who made the threats, caused

the violence, or even murdered the victim to avoid convic-

tion for earlier crimes by taking advantage of later ones.

In Davis, we recognized that “domestic violence” cases

are “notoriously susceptible to intimidation or coercion of

the victim to ensure that she does not testify at trial.” 547

U. S., at 832–833. We noted the concern that “[w]hen this

occurs, the Confrontation Clause gives the criminal a

windfall.” Id., at 833. And we replied to that concern by

stating that “one who obtains the absence of a witness by

wrongdoing forfeits the constitutional right to confronta-

tion.” Ibid. To the extent that it insists upon an addi-

tional showing of purpose, the Court breaks the promise

implicit in those words and, in doing so, grants the defen-

dant not fair treatment, but a windfall. I can find no

history, no underlying purpose, no administrative consid-

eration, and no constitutional principle that requires this

result.

Insofar as JUSTICE SOUTER’s rule in effect presumes

“purpose” based on no more than evidence of a history of

domestic violence, I agree with it. In all other respects,

however, I must respectfully dissent.