Amicus Curiae Brief — Irizarry v. United States
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No. 06-7517 3-24-08
IN THE
Supreme Court of the United States
RICHARD IRIZARRY,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
BRIEF OF COURT-APPOINTED AMICUS
CURIAE URGING AFFIRMANCE OF
THE JUDGMENT BELOW
DOUGLAS A. BERMAN PETER B. RUTLEDGE
OHIO STATE UNIVERSITY Counsel of Record
MORITZ COLLEGE OF LAW Court-Appointed Amicus
55 West 12th Ave. 3600 John McCormack Rd NE
Columbus, OH 43210 Washington, D.C. 20064
(614) 688-8690 (202) 319-5140
WALSON-EPES PRINTING CO.., INC. — (202) 788-0096 - WASHINGTON, D. C. 20002
QUESTION PRESENTED
Whether a criminal defendant forfeits his Sixth
Amendment right “to be confronted with the witnesses
against him” by causing a witness to be unavailable to
testify, even if the defendant did not cause the witness’s
unavailability for the purpose of preventing the witness
from testifying.
(i)
—_-
Question Presented
Interest of Amicus Curiae
IT.
TABLE OF CONTENTS
This Case Falls Far Outside the Limited
Scope of the Framing-Era Forfeiture Rule
A. The Framing-Era Forfeiture Rule Was
a Narrow Rule of Unavailability That
Applied to Prior Cross-Examined
y RENE ASE Ot
. The Framing-Era Forfeiture Rule Did
Not Apply to Misconduct Unrelated to
the Declarant’s Status as a Witness............
The Framing-Era Treatment of Dying
Declarations Refutes California’s Version
of the Forfeiture Rule
A.
B.
Dying Declarations Were Not Admitted
on Forfeiture Grounds, Even When
They Fell Squarely Within the
California Supreme Court’s Version
of the Forfeiture Rule....................ccccccccsseeess
The Dying-Declaration Cases Foreclose
ESE ee
III. The California Supreme Court’s Decision
Would Significantly Expand the Use of
Unreliable Ex Parte Testimony in
A. The California Supreme Court’s Rule
Could Be Extended to a Wide Variety
REEL RREE AO TESIS A R e
SSS SSH TE TESTE FETE SESE SES EEEOE
SESS SESE SESS ESE ESSER EEEEEEEE EEE EE SE EEHEE EEE EEEEEEEEEEESEEESEEEOE
SSSSESSSHSSSHESSHSHESESESESEEE SESE SER ESOEEEEEE
SOSH SESE HESESEEEEEEEEESESESEEEEESEE ESE ROH E EEE
iv
TABLE OF CONTENTS—Continued
B. The California Supreme Court’s Rule
Would Undermine the Fairness of
Conclusion. .........000c0000s ictal lhiehpteamin taciiltalasicsinilached 30
Vv
TABLE OF AUTHORITIES
CASES
Anthony v. State, 19 Tenn. (Meigs) 265
Ayrton v. Addington (1780), in 2 James
Oldham, The Mansfield Manuscripts
and the Growth of English Law in the
Eighteenth Century 1023 (1992) ...........cseseee 9
Bromwich’s Case, 1 Lev. 180, 83 Eng. Rep.
ETRE ST eA 7
Crawford v. Washington, 541 U.S. 36
Drayton v. Wells, 10 S.C.L. (1 Nott &
McC.) 409 (Const. Ct. 1819)........ccccssersseresreees 11, 13
Dunn v. State, 2 Ark. 229 (1840)...........ccccccccssessees 23
Fenwick’s Case, 13 How. St. Tr. 537
7) EE OO, eee eee ee eee ee eee
Gibson v. Commonwealth, 4 Va. (2 Va.
ef BBE) Ee Sa eee 21
Gonzales v. State, 155 S.W.3d 603 (Tex. ;
App. 2004), aff’d on other grounds, 195 )
S.W.3d 114 (Tex. Crim. App. 2006).................. 26 |
|
Harrison’s Case, 12 How. St. Tr. 833
Hill v. Commonwealth, 43 Va. (2 Gratt.)
a eeetevettone 21
John’s Case (1790), in 1 Edward Hyde |
East, A Treatise of the Pleas of the |
I ai lai la eta initaai cians 18
vi
TABLE OF AUTHORITIES—Continued
Page
Johnston v. State, 10 Tenn. (2 Yer.) 58
iene telacectieileeeastemmestigannnemeaneneccnee 9
King v. Commonwealth, 4 Va. (2 Va. Cas.)
re 21
King v. Dingler, 2 Leach 561, 168 Eng.
itera iesincsirnenmcentnctmnatenccseresne 9, 20
King v. Drummond, 1 Leach 337, 168 Eng.
acini sntcrcereatedcantesenscescecssccesses 17
King v. Ely (1720), in 12 Charles Viner,
A General Abridgment of Law and
ES 16
King v. Eriswell, 3 T.R. 707, 100 Eng.
Rep. 815 (K.B. 1790) cccsesssscccscsssssssssssssucesseesen 9, 10
King v. Radbourne, 1 Leach 457,
168 Eng. Rep. 330 (1787)............c-.0-000 9, 14, 19, 22
King v. Woodcock:
1 Leach 500, 168 Eng. Rep. 352
Eee 9, 17, 18, 19
Thomas Leach, Cases in Crown
Law 437 (1st ed. 1789) .........c.ccccsceccecereseseeeees 19
Old Bailey Sessions Papers, Jan. 14,
LE LLL 19
Lewis v. State, 17 Miss. (9 S. & M.) 115
EEE 20, 21
Logan v. State, 28 Tenn. (9 Hum.) 24
LEE 22
Lord Morley’s Case:
Kel. 53, 84 Eng. Rep. 1079 (H.L. 1666)..... 6, 7,14
6 How. St. Tr. 769 (H.L. 1666).............cccecceseees 7
Mattox v. United States, 156 U.S. 237
vii
TABLE OF AUTHORITIES—Continued
Page
McDaniel v. State, 16 Miss. sine & =
Ee - ee 21, 22
McLean v. State, 16 Ala. 672 a 22
McLean v. State, 8 Mo. 153 (1848)..............c00+ 21
Montgomery v. State, 11 Ohio 424 (1842)............ 21
Nelson v. State, 26 Tenn. (7 Hum.) 542
RT ae 21
Ohio v. Roberts, 448 U.S. 56 (1980) .............00+. 24, 25
People v. Bauder, 712 N.W.2d 506
CBR ais. GR, Ba, GIGI ccccececsnsesssescsssszscsccsescscssceees 26
People v. Monterroso, 101 P.3d 956
ES re 24
People v. Moreno, 160 P.3d 242
ES SE eee 27, 28
People v. Restell, 3 Hill 289 (N.Y. Sup. Ct.
EERE REE Se ee 10
People v. Stechly, 870 N.E.2d 333
Ea 27, 28
People v. Wood, 2 Edm. Sel. Cas. 71 (N.Y.
Sup. Ct. 1849)..........000 si adianioaitlainbtepeepeamneacnees 22
Queen v. Scaife, 17 Q.B. 238, 117 Eng.
Be ee GD cetrcerennscncnsscenccsncensnsnsseommmensesees 11,13
Raleigh’s Case:
ER 17, 30
1 David Jardine, Criminal Trials 400
EE ETE eee 17
Respublica v. Langcake, 1 Yeates 415
FO rn 16
Rex v. Barber, 1 Root 76
ee 11, 12,13
TABLE OF AUTHORITIES—Continued
Page
Rex v. Reason & Tranter:
1 Strange 499, 93 Eng. Rep. 659
EE 16
16 How. St. Tr. 1 (K.B. 1722)...........cccccccsceseeeees 16
Reynolds v. United States, 98 U.S. 145
IEEE ARR ee ae 12, 13
Smith v. State, 28 Tenn. (9 Hum.) 9 (1848)......... 21
State v. Campbell, 30 S.C.L. (1 Rich.) 124
| a 10
State v. Ferguson, 20 $.C.L. (2 Hill) 619
TN cceereees 21
State v. Henderson, 160 P.3d 776
EE 28
State v. Hill, 20 S.C.L. (2 Hill) 607
a rrrereennenrnanaee 10
State v. Houser, 26 Mo. 431 (1858) ...........cccc0c000 10
State v. Jensen, 727 N.W.2d 518
EE 26
State v. Mason, 162 P.3d 396 (Wash. 2007)......... 26
State v. Mechling, 633 S.E.2d 311
EE 28
State v. Meeks, 88 P.3d 789 (Kan. 2004),
overruled in part on other grounds by
State v. Davis, 158 P.3d 317
ST 26
State v. Moody, 3 N.C. (2 Hayw.) 31
A icitinninentiiishinnttisinntsinateeneneces 9, 16, 20
State v. Poll, 8 N.C. (1 Hawks) 442 (1821)........... 21
State v. Webb, 2 N.C. (1 Hayw.) 103
ERE EE 9
ix
TABLE OF AUTHORITIES—Continued
Page
Tinckler’s Case (1781), in 1 Edward Hyde
East, A Treatise of the Pleas of the
EE 19
United States v. Garcia-Meza, 403 F.3d
I a 26
Uniied States v. Mayhew, 380 F. Supp. 2d
ET 26
United States v. McGurk, 26 F. Cas. 1097
(C.C.D.C. 1802) (No. 15,680)...............ccccsceseeee 16
United States v. Veitch, 28 F. Cas. 367
(C.C.D.C. 1808) (No. 16,614).............c.cccecceeseees 21
United States v. Woods, 28 F. Cas. 762
(C.C.D.C. 1834) (No. 16,760)..........cc.ccecccceseeeeees 21
Welbourn’s Case (1792), in 1 Edward
Hyde East, A Treatise of the Pleas of
| en 18
Williams v. State, 19 Ga. 402 (1856)...............0002+ 12
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES
A aR 3,5
i I... sssenensennnstinasons 2
Cal. Penal Code § 1846(d)..........c.ccceccscsscssessccseeseees 27
Colo. Rev. Stat. § 18-3-413(38) ......................-csessees 27
1 & 2 Phil. & M., c. 13 (1554) ..00...........cc.ccccccccccsees 6
2 & 3 Phil. & M., c. 10 (1565) ..................00.00.000000-. 6
Fed. R. Evid. 804(0)(6)...........csssssssssssssseessseeeees 3, 5, 13
x
TABLE OF AUTHORITIES—Continued
Page
TREATISES
John Frederick Archbold, A Summary of
the Law Relative to Pleading and
Evidence in Criminal Cases (1822) ...........0+++: 11
William Blackstone, Commentaries on the
Laws of England (1768) .........sssssseceeeeeeeeeeees 29
Richard Burn, The Justice of the Peace and
8
Joseph Chitty, A Practical Treatise on
the Criminal Law (1816)............ccccececesereeseee 11,14
Edward Hyde East, A Treatise of the Pleas
Er 20
Geoffrey Gilbert, The Law of Evidence
I 17
William Hawkins, A Treatise of the Pleas
of the Crown:
EE 8
Ce 17, 20
ee I icrtertccccncstnscecncsesosesceneses 9
Leonard MacNally, The Rules of Evidence
on Pleas of the Crown (1802) ............cceseseseesevees 20
John Morgan, Essays upon the Law of
Evidence, New Trials, Special Verdicts,
Trials at Bar, and Repleaders (1789)............. 9
Thomas Peake, A Compendium of the Law
of Evidence:
RE 9, 10, 20
Te ae 9
S.M. Phillipps;.A Treatise on the Law of
Evidence (2d ed. 1815) (1814)..........cc.cc0ssseee. 11,14
xi
TABLE OF AUTHORITIES—Continued
Page
Thomas Starkie, A Practical Treatise on
the Law of Evidence (1st Am. ed. 1826)
John H. Wigmore, A Treatise on the Anglo-
American System of Evidence in Trials
at Common Law (2d ed. 19238) ..........ccecsee 12, 23
Thomas Wood, An Institute of the Laws of
pS af)
MISCELLANEOUS
J.M. Beattie, Crime and the Courts in
Te 6
Beattie, Scales of Justice, 9 Law & Hist.
TE eR 23
Carter & Lyons, The Potential Impact of
Crawford v. Washington on Child Abuse,
Elderly Abuse and Domestic Violence
Litigation, Champion, Sept.-Oct. 2004,
| jnininnieetitininntantinrensne 27
Julius Goebel, Jr. & T. Raymond Naughton,
Law Enforcement in Colonial New York
|: A aac ee ca 9
Huff, Confronting Crawford, 85 Neb. L.
- hha 29
King-Ries, Forfeiture by Wrongdoing:
A Panacea for Victimless Domestic
Violence Prosecutions, 39 Creighton L.
8 EE 28
Krischer, “Through Justice May Be Blind,
It Is Not Stupid”: Applying Common
Sense to Crawford in Domestic Violence
Cases, Prosecutor, Nov.-Dec. 2004, at 14....... 28
xii
TABLE OF AUTHORITIES—Continued
| Page
Kry, Confrontation Under the Marian
Statutes, 72 Brook. L. Rev. 493 (2007)............ 8,9
Landsman, The Rise of the Contentious
Spirit, 75 Cornell L. Rev. 497 (1990)................ 22
John H. Langbein, The Origins of
Adversary Criminal Trial (2008)............ 6, 18, 22
John H. Langbein, Prosecuting Crime in
the Renarssance (1974)..........ccescerecsereeseresersere 6
Raeder, Remember the Ladies and the
Children Too: Crawford’s Impact on
Domestic Violence and Child Abuse
Cases, 71 Brook. L. Rev. 311 (20085) ................ 28
Gerry Spence, Win Your Case: How To
Present, Persuade, and Prevail—Every
Place, Every Time (2005).......ssscssecsesessereeeerers 29
IN THE
Supreme Court of the Anited States
No. 07-6053
DWAYNE GILES,
Petitioner,
v.
STATE OF CALIFORNIA,
Respondent.
On Writ of Certiorari to the
Supreme Court of California
BRIEF OF THE NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
INTEREST OF AMICUS CURIAE
The National Association of Criminal Defense Law-
yers (“NACDL”) is a non-profit corporation with a mem-
bership of more than 10,000 attorneys and 28,000 affiliate
members in 50 States, including private criminal defense
lawyers, public defenders, and law professors. NACDL
was founded in 1958 to promote study in the field of
' The parties have consented to the filing of this brief, and their let-
ters of consent have been filed with the Clerk. No counsel for a
party authored this brief in whole or in part, no such counsel or party
made a monetary contribution intended to fund the preparation or
submission of this brief, and no person other than amicus, its mem-
bers, and its covnsel made such a contribution.
2
criminal law, to disseminate and advance knowledge of
the law in the area of criminal practice, and to encourage
the integrity, independence, and expertise of defense
lawyers in criminal cases. NACDL seeks to defend indi-
vidual liberties guaranteed by the Bill of Rights and has a
keen interest in ensuring that criminal proceedings are
handled in a proper and fair manner. NACDL has fre-
quently appeared before this Court as amicus curiae.
NACDL has grave concerns about the California Su-
preme Court’s decision in this case. The decision ex-
pands the forfeiture doctrine well beyond its historical
roots and thus denies defendants a right the Confronta-
tion Clause, as originally understood, guarantees them.
The decision would also greatly expand the use of unreli-
able ex parte testimony, impairing the fairness of crimi-
nal trials.
STATEMENT
Dwayne Giles was convicted in California state court
of the first-degree murder of his ex-girlfriend, Brenda
Avie. J.A. 36. Mr. Giles admitted killing Ms. Avie but
claimed he acted in self-defense, testifying that she was a
violent woman who had shot another man and had threat-
ened people with knives. /d. at 34.
To prove that the killing was premeditated, the State
introduced statements Ms. Avie had made to police offi-
cers three weeks earlier. In those statements, Ms. Avie
accused Mr. Giles of threatening and assaulting her on
another occasion. J.A. 35-36. The trial court admitted
the statements under a recently enacted hearsay excep-
tion for certain “trustworthy” statements of unavailable
witnesses. Jd. at 36 (citing Cal. Evid. Code § 1370).
It is undisputed that the prosecution’s introduction of
Ms. Avie’s statements rendered her a “witness” against
Mr. Giles within the meaning of the Confrontation
Clause. J.A. 39. The statements were made outside Mr.
3
Giles’ presence, and he had no opportunity to cross-
examine her to test the truth of her accusations. None-
theless, the California Supreme Court held that the
statements did not infringe Mr. Giles’ right “to be con-
fronted with the witnesses against him,” U.S. Const.
amend. VI, because he had forfeited that right by killing
Ms. Avie—the same offense for which he was on trial.
J.A. 32.
The court rejected the argument that forfeiture ap-
plies only where a defendant renders a witness unavail-
able to prevent her from testifying (a requirement that
Federal Rule of Evidence 804(b)(6) expressly imposes in
federal prosecutions). J.A. 39-57. The court conceded
that the forfeiture doctrine was “generally applied” in
that context. Jd. at 45. But it held that forfeiture was not
so limited because early cases “did not specifically ad-
dress the intention of the defendants” and the rule was
based on “broad equitable principles.” /d. at 41 n.3, 52.
SUMMARY OF ARGUMENT
I. The California Supreme Court’s decision represents
a dramatic departure from the traditional rule governing
forfeiture of confrontation rights. At the framing and for
at least a century thereafter, forfeiture was a narrow rule
of unavailability: If a witness testified against the defen-
dant at his pretrial hearing but the defendant then pro-
cured the witness’s absence from trial, the pretrial depo-
sition could be admitted. Procurement of a witness’s ab-
sence was treated like death, illness, or other types of
unavailability that justified admitting prior testimony
where the defendant had had an earlier opportunity to
cross-examine the witness. That rule was extended dur-
ing the twentieth century to cover any sort of hearsay
statement where the defendant procured the declarant’s
absence for the purpose of preventing him from testify-
ing. The California Supreme Court’s rule goes far be-
yond both the framing-era rule and its modern counter-
4
part: According to that court, forfeiture applies when-
ever a defendant merely wrongfully causes a potential
trial witness’s absence—even where the misconduct is
wholly unrelated to the declarant’s status as a witness.
That new rule lacks any historical support. Early au-
thorities’ descriptions of the forfeiture rule make clear
that they had only witness-tampering in mind. The con-
text in which the rule arose confirms that focus: The for-
feiture rule governed testimony against the defendant at
his pretrial hearing, after the crime had been committed
and prosecution was underway. The reason early au-
thorities did not elaborate on the defendant’s intent is not
that intent was irrelevant, but that it was a given: Where
a witness had already testified against the defendant at
his pretrial hearing, the likelihood that a defendant would
procure his absence by wrongful conduct for some reason
unrelated to his status as a witness was so minuscule as
to be unworthy of comment.
II. The framing-era law of dying declarations con-
firms that. If the State’s version of forfeiture were his-
torically accurate, courts would have routinely admitted
statements of dying witnesses accusing their alleged kill-
ers on forfeiture grounds. But such statements were not
admitted on that ground—only on the wholly different
theory that consciousness of impending death made them
uniquely reliable. When a witness was not sufficiently
aware of his imminent death, moreover, his statements
were excluded. That result would be wholly inexplicable
if the State’s theory of forfeiture were correct.
III. The decision below would not only deny defen-
dants constitutional rights that the Sixth Amendment
guarantees them, but also vastly expand the use of unre-
liable ex parte testimony in criminal trials. States recog-
nize many different forms of unavailability, all of which
will no doubt form the basis for forfeiture claims if this
Court affirms the decision below. The state court’s deci-
5
sion would thus vastly expand the use of ex parte testi-
mony in criminal trials—precisely the sort of evidence
the Confrontation Clause was designed to exclude.
ARGUMENT
The Confrontation Clause guarantees a criminal de-
fendant the right “to be confronted with the witnesses
against him.” U.S. Const. amend. VI. That provision se-
cures “the right of confrontation [as it existed] at com-
mon law, admitting only those exceptions established at
the time of the founding.” Crawford v. Washington, 541
U.S. 36, 54 (2004). There is no dispute that the State’s
introduction of Ms. Avie’s testimony rendered Ms. Avie a
“witness[] against” Mr. Giles, or that he had no opportu-
nity to “confront{]” her. The case thus turns on whether
the testimony falls within a framing-era exception to the
rule. The State cannot make that showing.
I. This Case Falls Far Outside the Limited Scope of
the Framing-Era Forfeiture Rule
Federal Rule of Evidence 804(b)(6) reflects the mod-
ern understanding of forfeiture applied in federal courts:
Hearsay is admissible “against a party that has engaged
or acquiesced in wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a wit-
ness.” Fed. R. Evid. 804(b)(6) (emphasis added). The
California Supreme Court adopted an even broader con-
ception of the forfeiture doctrine—one that applies to
misconduct that causes a witness’s absence even if wholly
unrelated to his status as a witness. The historical record
does not remotely support that rule. To the contrary, the
framing-era forfeiture rule was narrower than even the
modern federal rule that the state court rejected.
At the framing, forfeiture was not a free-standing
hearsay exception but a species of unavailability—akin to
death or illness—that justified admitting an absent wit-
ness’s prior cross-examined testimony from a pretrial
6
hearing. That context makes clear that forfeiture was
fundamentally a rule about witness-tampering: Where
the crime has already been completed, the prosecution is
already underway, and the witness has already accused
the defendant in a formal proceeding, there is no realistic
likelihood that a defendant would engage in misconduct
that renders the witness unavailable for some reason wn-
related to his status as a witness. The decision below
thus extends forfeiture well beyond its historical scope.
A. The Framing-Era Forfeiture Rule Was a Nar-
row Rule of Unavailability That Applied to
Prior Cross-Examined Testimony
1. In England, pretrial proceedings in criminal cases
were governed by the so-called Marian statutes, 1 & 2
Phil. & M., ec. 13 (1554), and 2 & 3 Phil. & M., c. 10 (1555).
According to those statutes, when witnesses believed
someone had committed a felony, they were to bring him
before a justice of the peace, who would examine both the
witnesses and the suspect to decide whether to bail the
suspect or commit him to jail to await trial. The deposi-
tions from those “committal” hearings were then sent to
the court. The statutes also directed coroners to take
depositions of witnesses during their pretrial homicide
inquests. Jbid.; see generally John H. Langbein, Prose-
cuting Crime in the Renaissance 5-20 (1974); John H.
Langbein, The Origins of Adversary Criminal Trial 40-
47, 273-77 (2003); J.M. Beattie, Crime and the Courts in
England 268-81 (1986).
Those Marian pretrial depositions were an attractive
source of evidence if a witness later became unavailable
before trial. England’s twelve judges laid down the rules
governing their admissibility in 1666. That year, Lord
Morley was tried before the House of Lords for killing
another man after a quarrel, and the twelve judges ad-
vised the House on the admissibility of depositions that
had been taken by the coroner. Lord Morley’s Case, Kel.
7
53, 84 Eng. Rep. 1079, 6 How. St. Tr. 769 (H.L. 1666).
The twelve judges resolved that the depositions were
admissible if the witness was “dead or unable to travel,”
or—as relevant here—“detained by the means or pro-
curement of the prisoner.” Kel. at 55, 84 Eng. Rep. at
1080; see also 6 How. St. Tr. at 776-77 (“dead” or “with-
drawn by the procurement of the prisoner”).
At Lord Morley’s trial, the Crown read the coroner’s
depositions of three witnesses who had died. 6 How. St.
Tr. at 776. The court, however, excluded the deposition
of a fourth witness who had “run away” after telling his
friends that “Lord Morley’s Trial was to be shortly but
he would not be there.” Jd. at 777. That, the court ruled,
was not sufficient to show witness-tampering. Jd. at 776-
77. Consistent with that ruling, when Lord Morley’s ac-
complice was later tried before the King’s Bench, the
Crown read the depositions of two of the witnesses who
had died but apparently did not even offer the deposition
of the witness who had merely run away. See Brom-
wich’s Case, 1 Lev. 180; 83 Eng. Rep. 358 (K.B. 1666).
For centuries, Lord Morley’s case governed the ad-
missibility of Marian depositions—both coroners’ deposi-
tions and committal depositions before justices of the
peace. In 1692, for example, a coroner’s deposition was
read at the murder trial of Henry Harrison after the
Crown showed that a man had “asked [the witness], if he
was not an evidence [7.e., witness] against Mr. Harrison,”
and then “pulled out a piece of money, and offered it [to]
him, desiring him to be kind to Mr. Harrison.” Harri-
son’s Case, 12 How. St. Tr. 833, 851-52 (1692). Four
years later, in Fenwick’s parliamentary attainder pro-
ceedings, one speaker invoked the Marian forfeiture rule
to justify admitting a witness’s deposition before a justice
of the peace, after the defendant’s associates apparently
bribed the witness to abscond: “{WJhere persons do
stand upon their lives, accused for crimes, if it appears to
8
the court that the prisoner hath, by fraudulent and indi-
rect means, procured a person that hath given informa-
tion against him to a proper magistrate, to withdraw
himself, so that he cannot give evidence as regularly as
they used to do; in that case his information hath been
read ***.” Fenwick’s Case, 13 How. St. Tr. 537, 594
(H.C. 1696) (Lovel); see also id. at 596 (Sloane).”
Summarizing the law in 1721, Hawkins wrote: “(T]he
Examination of an Informer * * * either before a Coroner
upon an Inquisition of Death in pursuance of 1 & 2 Ph. &
M. 13 or before Justices of Peace in pursuance of 1 & 2
Ph. & M. 13 and 2 & 3 P. & M. 10 upon a Bailment or
Commitment for any Felony, may be given in Evidence
at the Trial * * * [if] such Informer is dead, or unable to
travel, or kept away by the Means or Procurement of the
Prisoner ** * .” 2 William Hawkins, A Treatise of the
Pleas of the Crown 429 (1721) (footnotes omitted). Other
authorities stated the same rule. See, eg., 1 Richard
Burn, The Justice of the Peace and Parish Officer 287-88
(1755). Forfeiture was thus a species of unavailability—
akin to death or illness—that justified admitting a wit-
ness’s pretrial Marian deposition.
2. Marian committal hearings were normally conduct-
ed in the prisoner’s presence (their purpose, after all, was
to determine whether to commit the prisoner to jail).
Over the eighteenth century, the view emerged that
those hearings offered the prisoner at least a theoretical
opportunity to confront and cross-examine his accusers.
See generally Kry, Confrontation Under the Marian
* The rule was of questionable applicability there. Among other
things, Fenwick was charged with treason while the Marian statutes
applied only to felonies; those were considered separate categories of
offenses. See 13 How. St. Tr. at 602 (Musgrave). The deposition was
admitted largely on the ground that the rules of evidence did not
bind Parliament. See id. at 591-607.
9
Statutes, 72 Brook. L. Rev. 493 (2007). Lord Morley’s
case and its progeny were then interpreted to mean that
a witness’s unavailability justified admitting only prop-
erly taken committal depositions—i.e., depositions taken
in the prisoner’s presence, affording an opportunity for
cross-examination. That view was widely,’ although not
uniformly,‘ held around the time of the framing, and was
consistently followed in early American cases.°
Coroners’ depositions, by contrast, would not neces-
sarily be taken in the defendant’s presence, and English
authorities thus had greater difficulty rationalizing their
admissibility. See, e.g., Thomas Peake, A Compendium
of the Law of Evidence 64 n.(m) (3d ed. 1808) (question-
ing rule but acknowledging that the practice was to admit
them “without inquiry whether the party was present or
* See Fenwick’s Case, 13 How. St. Tr. at 602 (Musgrave); Thomas
Wood, An Institute of the Laws of England 671 (9th ed. 1763) (sem-
ble); Julius Goebel, Jr. & T. Raymond Naughton, Law Enforcement
in Colonial New York 634-35 (1944) (1766 protest); Ayrton v. Ad-
dington (1780), in 2 James Oldham, The Mansfield Manuscripts and
the Growth of English Law in the Eighteenth Century 1023, 1024-26
(1992); 1 John Morgan, Essays upon the Law of Evidence, New Tri-
als, Special Verdicts, Trials at Bar, and Repleaders 431 (1789) (sem-
ble); King v. Radbourne, 1 Leach 457, 460-61, 168 Eng. Rep. 330, 332
(1787) (reported 1789/1800); King v. Woodcock, 1 Leach 500, 501-02,
168 Eng. Rep. 352, 352-53 (1789) (reported 1789); King v. Dingler, 2
Leach 561, 562-63, 168 Eng. Rep. 383, 383-84 (1791) (reported 1800);
4 William Hawkins, A Treatise of the Pleas of the Crown 423 (Leach
7th ed. 1795); King v. Eriswell, 3 T.R. 707, 710 n.(c), 100 Eng. Rep.
815, 817 n.(c) (K.B. 1790) (reporter’s note 1797); Thomas Peake, A
Compendium of the Law of Evidence 40-41 (1801); and other au-
thorities cited in Kry, supra, at 495-96 nn.11-12, 512-24, 530-41.
* See, e.g., Eriswell, 3 T.R. at 713-14, 100 Eng. Rep. at 819 (Buller,
J.).
* See State v. Webb, 2 N.C. (1 Hayw.) 103, 104 (Super. 1794); State v.
Moody, 3 N.C. (2 Hayw.) 31, 31-32 (Super. 1798) (Haywood, J.);
Johnston v. State, 10 Tenn. (2 Yer.) 58, 59-60 (1821); and other cases
cited in Kry, supra, at 496-97 n.13.
10
not”). One rationale offered was that inquests were such
notorious proceedings that everyone was presumed to be
aware of them, and thus to have had at least a construc-
tive opportunity to cross-examine. See 2 Thomas Star-
kie, A Practical Treatise on the Law of Evidence *492
(1st Am. ed. 1826) (1824); King v. Eriswell, 3 T.R. 707,
722, 100 Eng. Rep. 815, 824 (K.B. 1790) (Kenyon, C.J.).
American authorities, however, refused to indulge that
fiction for coroners’ depositions and insisted on an actual
opportunity for cross-examination. See State v. Camp-
bell, 30 S.C.L. (1 Rich.) 124, 131-32 (App. L. 1844); People
v. Restell, 3 Hill 289, 297 (N.Y. Sup. Ct. 1842); State v.
Hill, 20 S.C.L. (2 Hill) 607, 610 (App. L. 1835); State v.
Houser, 26 Mo. 431, 436 (1858) (ex parte coroners’ depo-
sitions had “never been permitted [as evidence] in this
country”). In Campbell, for example, the court excluded
the coroner’s deposition of a deceased witness because
the defendant was not present at the inquest. The court
first described Lord Morley’s case as “quite uncertain, as
to the precise point of the absence of the accused at the
taking of the depositions.” 30 S.C.L. at 127. Apparently
not wholly satisfied by that distinction, the court then
characterized Lord Morley’s case as a “precedent{], not
to follow, but to deter,” and opined that, “without disre-
spect to the twelve judges of England,” their entire deci-
sion was “obiter dicta” entitled to no more weight than an
earlier state-court decision. Jd. at 127, 131. Years later,
this Court described Campbell as if that holding were
self-evident. See Mattox v. United States, 156 U.S. 237,
241 (1895) (“of course it was held to be inadmissible”).
The rules of Lord Morley’s case thus came to be under-
stood as conditions for admitting prior cross-examined
testimony.
3. That was no less true in forfeiture cases than in
cases involving other types of unavailability. Thus, for
example, Archbold wrote that committal depositions
1]
were admissible if the witness was “dead, or unable to
travel, or * * * kept away by the means or procurement
of the prisoner”—but added that, “to be thus given in
evidence, {the depositions} must have been taken in the
presence of the prisoner, so that he might have had an
opportunity of cross examining the witness.” John Fre-
derick Archbold, A Summary of the Law Relative to
Pleading and Evidence in Criminal Cases 85 (1822) (ci-
tation omitted). Chitty likewise wrote that committal
depositions were admissible if the witness was “dead, or
not able to travel, or * * * kept away by the means and
contrivance of the prisoner”—but must also be “done in
the presence of the party accused, in order that he may
have the advantage of cross-examining the witnesses.” 1
Joseph Chitty, A Practical Treatise on the Criminal
Law 79-81 (1816) (footnotes omitted). Phillipps agreed:
Committal depositions were admissible if the witness was
“dead, or not able to travel, or * * * kept away by the
means and contrivance of the- prisoner”—but only if
taken “in the presence of the prisoner.” S.M. Phillipps, A
Treatise on the Law of Evidence 277 (2d ed. 1815) (1814)
(footnotes omitted); see also Queen v. Scaife, 17 Q.B. 238,
238-39, 117 Eng. Rep. 1271, 1271 (1851) (committal depo-
sition taken “in the presence of the prisoners” admitted
against one defendant on forfeiture grounds).
American courts likewise understood forfeiture as a
basis for admitting prior cross-examined testimony. In
Drayton v. Wells, 10 S.C.L. (1 Nott & McC.) 409 (Const.
Ct. 1819), the court addressed the admissibility of prior
trial testimony. It listed being “kept away by the con-
trivance of the opposite party”—along with death, insan-
ity, and absence overseas—as grounds for admitting the
testimony, provided that the earlier trial was “between
the same parties” and “the point in issue was the same,”
conditions that ensured an opportunity to cross-examine.
Id. at 411. In a colonial case, Rex v. Barber, 1 Root 76
12
(Conn. Super. 1775), “{oJne White, who had testified be-
fore the justice and before the grand jury against [the
defendant) Barber * * * 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.” Jd. at 76. The
report states that the court admitted “evidence of what
[White] had testified before the justice”—but contains no
mention of admitting his (ex parte) grand jury testimony.
Ibid.; see also Williams v. State, 19 Ga. 402, 403 (1856)
(committal deposition).
Thus the law stood in 1879 when this Court decided
Reynolds v. United States, 98 U.S. 145 (1879). That case
involved a witness’s testimony at a former trial for the
same offense; the defendant was “present at the time the
testimony was given, and had full opportunity of cross-
examination.” Jd. at 161. The defendant concealed the
witness so she could not be found for the second trial, and
the Court admitted her former cross-examined testi-
mony on forfeiture grounds. /d. at 158-61.
That was still the law when Wigmore wrote decades
later. He too listed forfeiture, not as an independent
hearsay exception, but as a type of unavailability akin to
death or illness that justified admission provided “there
ha{d] been cross-examination.” 3 John H. Wigmore, A
Treatise on the Anglo-American System of Evidence in
Trials at Common Law §§ 1401, 1405, at 111, 118-20 (2d
ed. 1923). Thus, for at least a century after the framing,
forfeiture was a species of unavailability like death or ill-
ness—it justified admitting prior cross-examined testi-
mony but was not an independent hearsay exception.
B. The Framing-Era Forfeiture Rule Did Not Ap-
ply to Misconduct Unrelated to the Declarant’s
Status as a Witness
That history shows just how far the California Su-
preme Court departed from the narrow traditional forfei-
13
ture rule. Obviously, the statement at issue does not fall
within the framing-era rule: It is not testimony from a
pretrial hearing, former trial, or other occasion where the
defendant had an opportunity to cross-examine. This
Court, however, need not address the constitutionality of
the modern, broader conception of forfeiture embodied in
Federal Rule 804(b)(6), because the California Supreme
Court’s decision extends far beyond even that.
The state court held that forfeiture applies whenever a
defendant wrongfully causes a witness’s absence, even if
the wrongful conduct is unrelated to that person’s status
as a witness. No historical authority extends forfeiture
that far. Every case described above that actually admit-
ted a statement on forfeiture grounds (which includes
every case cited by Reynolds and every early case cited
by the court below) involved witness-tampering. See
Harrison’s Case, 12 How. St. Tr. at 851-52 (bribery);
Fenwick’s Case, 13 How. St. Tr. at 550 (bribery); Rey-
nolds, 98 U.S. at 159-60 (concealment); Barber, 1 Root at
76 (witness “sent away * * * so that he could not be had
to testify”); Scaife, 17 Q.B. at 238-42, 117 Eng. Rep. at
1271-73 (similar). The court below conceded that forfei-
ture “generally applied *** when the defendant in-
tended to, and did, tamper with an actual or potential
witness to prevent the witness from cooperating with the
authorities or testifying at trial.” J.A. 45. Indeed, the
oldest case the court cited outside that context was from
1997. Id. at 46-51.
The court nonetheless claimed that intent was irrele-
vant because the early authorities “did not specifically
address the intention of the defendants.” J.A. 41 n.3.
That is a strained reading at best. The authorities rou-
tinely described the forfeiture rule in terms suggesting
that it was limited to witness-tampering. Reynolds, for
example, referred to witnesses “corruptly kept away.” 98
U.S. at 159. Drayton referred to witnesses “kept away
14
by the contrivance of the opposite party.” 10 S.C.L. at
411. Treatises referred to witnesses “kept away by the
means and contrivance of the prisoner.” 1 Chitty, supra,
at 81; Phillipps, supra, at 277. Those formulations are far
more naturally read as connoting manipulation of the ju-
dicial process, not mere misconduct that causes a wit-
ness’s absence.
Even if the descriptions were neutral, however, their
context makes clear that the authorities had only wit-
ness-tampering in mind. The common-law forfeiture rule
governed testimony against the defendant at his pretrial
committal hearing, the coroner’s inquest, or (by the nine-
teenth century) a former trial for the same offense. See
pp. 6-12, supra. The rule thus applied to misconduct in
contexts where the crime had already been completed,
the prosecution was already underway, and the witness
_had already accused the defendant in a formal proceed-
ing. In those contexts, the possibility that a defendant
would engage in misconduct that rendered a witness un-
available for some reason unrelated to his status as a
witness seems remote.°
The far more reasonable explanation for the early
sources’ failure to elaborate on intent is not that intent
was irrelevant, but that it would so clearly exist in the
particular pretrial context those sources were expound-
ing that there was no point in addressing it. Intent sim-
* One can imagine situations where a defendant injures a victim, the
victim lingers long enough to testify at the pretrial hearing, but the
victim then dies or succumbs to incapacity before trial. See, e¢.g.,
Radbourne, 1 Leach at 458-60, 168 Eng. Rep. at 331-32. In those
cases, however, the testimony would be admissible under the “death”
or “illness” prongs of Lord Morley’s case without regard to forfei-
ture. See Kel. at 55, 84 Eng. Rep. at 1080. Forfeiture mattered only
if the defendant prevented the witness from testifying by means
short of killing or injuring him (by threats, bribery, kidnapping, or
the like).
15
ply was not an issue until the forfeiture rule was ex-
panded beyond the Marian pretrial context to statements
like those here, made before or shortly after the time of
the underlying crime. Only then was it likely that a de-
fendant might render a witness unavailable by miscon-
duct unrelated to his status as a witness.
The California Supreme Court also invoked what i
described as the “broad equitable principles” underlying
the forfeiture rule. J.A. 52. No doubt, the rule was moti-
vated by equity. But that does not mean a modern court
can apply the rule whenever it thinks it would be equita-
ble to do so. Procuring a witness’s absence te manipulate
the trial’s truth-seeking function raises different consid-
erations than merely causing a witness to be unavailable.
The fact that forfeiture cases historically involved only
the former situation shows that the Framers thought eq-
uity justified admitting ex parte testimony only in that
situation. The Confrontation Clause “admit{s] only those
exceptions established at the time of the founding.”
Crawford, 541 U.S. at 54. What matters is the traditional
scope of the equitable forfeiture rule—not the mere fact
that is was equitable.
II. The Framing-Era Treatment of Dying Declere-
tions Refutes California’s Version of the Forfei-
ture Rule
The framing-era treatment of dying declarations dis-
pels any doubt that the California Supreme Court’s rule
is historically insupportable. For centuries, witnesses
have made statements accusing their alleged killers after
sustaining injuries that eventually resulted in their
deaths. If California’s version of forfeiture were accu-
rate, those statements would be paradigmatic candidates
for application of the forfeiture rule. But the cases failed
to invoke any forfeiture rationale for admitting such
statements. Moreover, courts adopted a limitation on ad-
missibility that is wholly inconsistent with forfeiture prin-
16
ciples: They excluded the statements unless the witness
was aware of his impending demise when he made them.
That result is wholly inconsistent with California’s for-
feiture rule. California’s rule would justify admitting
such statements against the alleged killer whatever the
witness’s mental state. The fact that no court or lawyer
ever suggested admitting those excluded statements on
forfeiture grounds is powerful evidence that the rule did
not extend so far.
A. Dying Declarations Were Not Admitted on For-
feiture Grounds, Even When They Fell Square-
ly Within the California Supreme Court’s Ver-
sion of the Forfeiture Rule
1. By the mid-eighteenth century, it was settled in
England that dying declarations were admissible against
the defendant in a murder prosecution. See King v. Ely
(1720), in 12 Charles Viner, A General Abridgment of
Law and Equity 118 (c. 1757); Rex v. Reason & Tranter,
1 Strange 499, 499-500, 93 Eng. Rep. 659, 659-60, 16 How.
St. Tr. 1, 24-38 (K.B. 1722); Bambridge’s Case, 17 How.
St. Tr. 397, 417 (1730). Early American courts followed
the same rule. See, eg., Respublica v. Langcake, 1
Yeates 415, 416-17 (Pa. 1795); State v. Moody, 3 N.C. (2
Hayw.) 31, 31 (Super. 1798); United States v. McGurk, 26
F. Cas. 1097, 1097 (C.C.D.C. 1802) (No. 15,680). The ra-
tionale for that rule, however, was not that the defendant
had forfeited his confrontation rights by killing the wit-
ness. Rather, the specter of impending death was
thought to render the statements sufficiently trustwor-
thy to dispense with the ordinary safeguards of oath and
cross-examination.
As one framing-era court explained: “(T]he general
principle on which this species of evidence is admitted is,
that they are declarations made in extremity, when the
party is at the point of death, and when every hope of this
17
world is gone: when every motive to falsehood is silenced,
and the mind is induced by the most powerful considera-
tions to speak the truth; a situation so solemn, and so aw-
ful, is considered by the law as creating an obligation
equal to that which is imposed by a positive oath adminis-
tered in a Court of Justice.” King v. Woodcock, 1 Leach
500, 502, 168 Eng. Rep. 352, 353 (1789) (reported 1789).
Many other authorities identified the same rationale.
See, e.g., King v. Drummond, 1 Leach 337, 337-38, 168
Eng. Rep. 271, 272 (1784) (reported 1789) (“The principle
upon which this species of evidence is received is, that the
mind, impressed with the awful idea of approaching dis-
solution, acts under a sanction equally powerful with that
which it is presumed to feel by a solemn appeal to God
upon an oath.”); 2 William Hawkins, A Treatise of the
Pleas of the Crown 619 n.10 (Leach 6th ed. 1787) (“(TJhis
evidence seems to be admiss{i]ble only upon the idea,
that no human motive can at such an awful moment in-
terpose to bias the truth of what is asserted; and there-
fore the law considers the declarations of a person so dy-
ing as equal to the solemnity of an oath.” (emphasis omit-
ted)); ef. 1 Geoffrey Gilbert, The Law of Evidence 280
(Lofft ed. 1791).’
2. Because of that rationale, admissibility depended,
not only on whether the witness later died, but on
whether he knew he was dying. Only then would any mo-
tive to fabricate be extinguished. When a witness’s ap-
prehension of imminent death was not sufficiently shown,
courts excluded his statements.
” Indeed, references to the trustworthiness of dying declarations
date as far back as Raleigh’s case. See 2 How. St. Tr. 1, 18 (1603)
(“Nem moriturus praesumitur mentiri”—a dying man never lies);
Trial of Sir Walter Raleigh (1603), in 1 David Jardine, Criminal Tri-
als 400, 435 (1832) (“a dying man is ever presumed to speak truth”).
18
Thus, in John’s Case (1790), in 1 Edward Hyde East,
A Treatise of the Pleas of the Crown 357 (1803), a woman
accused her husband of assaulting her and later died of
her injuries. The husband objected to the statements at
his murder trial because “it was not proved that she con-
sidered herself at the time as a dying person.” Jd. at 357.
The court admitted the statements but referred the case
to the twelve judges for review.® The judges unanimous-
ly ruled that “whether the deceased thought she was dy-
ing or not” was to be “decided by the judge before he re-
ceives the evidence,” and a majority concluded that the
statements should have been excluded in that case be-
cause “there was no foundation for supposing that the
deceased considered herself in any danger at all.” Jd.
at 358.
Likewise, in Welbourn’s Case (1792), in 1 East, supra,
at 358, a servant told an apothecary a mere hour before
dying that another servant had poisoned her. She added,
however, that “she believed that she was getting better
from the pain ceasing.” Jd. at 359. The twelve judges
ruled the statement inadmissible at the fellow servant’s
murder trial because “it did not sufficiently appear that
the deceased knew or thought she was in a dying state
when she made the declaration.” Jd. at 360.
Other English cases are to the same effect. In King v.
Woodcock, 1 Leach 500, 168 Eng. Rep. 352 (1789), a
woman told a magistrate before dying that her husband
had assaulted her. The judge lamented that it “seem[ed]
impossible to find out, whether the deceased herself ap-
prehended that she was in such a state of mortality as
would inevitably oblige her soon to answer before her
® Although there was no formal appellate review in criminal cases, a
court faced with a difficult legal issue could stay the execution and
refer the case to all twelve judges, much like a modern swa sponte en
banc process. See Langbein (2003), supra, at 212-13 & n.153.
19
Maker for the truth or falsehood of her assertions.” /d.
at 508, 168 Eng. Rep. at 353-54 (footnote omitted). He
left the issue to the jury, instructing them not to consider
the statement unless they thought she was “under the
apprehension of death.” /d. at 504, 168 Eng. Rep. at 354.”
In Tinckler’s Case (1781), in 1 East, supra, at 354, the
defendant objected to the alleged murder victim’s dying
declarations because “it appeared at the time of her dec-
larations she was better, or thought herself so.” Jd. at
355. The twelve judges did not dispute that statements
under such circumstances were inadmissible. But they
approved the conviction because the witness had re-
peated her statements later, after taking a turn for the
worse. /d. at 355-56.
In King v. Radbourne, 1 Leach 457, 168 Eng. Rep. 330
(1787) (reported 1789/1800), a woman died after testify-
ing to a justice of the peace that her maid had assaulted
her. At the maid’s trial, the prosecution argued that the
declaration, “by a person who was sensible she was about
soon to give an account at the high tribunal of the Al-
mighty, * * * was considered by the law to be made under
a sanction more awful and impressive than that of an
oath itself.” Jd. at 460-61, 168 Eng. Rep. at 332. The
court, however, referred the case to the twelve judges
because the witness did “not appear[], at the time she
gave [the testimony], to be apprehensive of her approach-
ing dissolution.” Jd. at 462, 168 Eng. Rep. at 333. The
judges ruled that the statement (which had been sworn in
the defendant’s presence) was admissible on another
ground—as prior Marian testimony of an unavailable
* According to other reports, however, the judge himself resolved the
issue. See Woodcock’s Case (1789), in Thomas Leach, Cases in
Crown Law 437, 441-42 (1st ed. 1789); Trial of William Woodcock,
_ Old Bailey Sessions Papers, Jan. 14, 1789, at 95, 111-12.
20
witness. See 1 East, supra, at 356; cf. Peake (1801), sw-
pra, app. 1, at 144 & n.*.
In King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383
(1791) (reported 1800), a woman testified to a magistrate
that her husband had assaulted her, and died eleven days
later. Jd. at 561-62, 168 Eng. Rep. at 383. At the hus-
band’s murder trial, the prosecution counsel conceded
that the testimony “was not such an examination of a
person under apprehension of immediate death as would,
on that principle, authorize the production of it in evi-
dence.” Jd. at 563, 168 Eng. Rep. at 384. The testimony
was therefore excluded. See ibid.; see also Leonard
MacNally, The Rules of Evidence on Pleas of the Crown
381-87 (1802); 1 East, supra, at 353-54; ef. 2 Hawkins (6th
ed. 1787), supra, at 619 n.10.
3. Early American decisions were comparable. In
State v. Moody, 3 N.C. (2 Hayw.) 31 (Super. 1798), the
witness accused the defendant of wounding him; he died
several weeks later. The court excluded the statements.
It explained that dying declarations must be “of one so
near his end that no hope of life remains, for then the so-
lemnity of the occasion is a good security for his speaking
the truth, as much so as if he were under the obligation of
an oath.” Jd. at 31. “(I]f at the time of making the decla-
ration he has reasonable prospects and hope of life, such
declarations ought not to be received; for there is room to
apprehend he may be actuated by motives of revenge and
an irritated mind, to declare what possibly may not be
true.” Ibid.
In Lewis v. State, 17 Miss. (9 S. & M.) 115 (1847), the
court reversed a murder conviction because the alleged
victim’s declarations were introduced without sufficient
evidence that he was aware of his impending death. Dy-
ing declarations, the court explained, were admissible
only because “(t]he danger of impending death is re-
garded as equivalent to the sanction of an oath.” Jd. at
21
119. Upon being stabbed, the witness had exclaimed “O
my people!” but “said nothing else which indicated the
apprehension of immediate death.” Jd. at 120. “This
showing,” the court held, “was not sufficient. It indicated
alarm and suffering, but showed no sense of approaching
dissolution.” bid.
That same year, in Nelson v. State, 26 Tenn. (7 Hum.)
542 (1847), the court reversed another murder conviction
for similar reasons. The witness there accused the de-
fendant of attacking him but claimed he “‘was not badly
wounded and was not going to die.’” Jd. at 543. He was,
alas, “very greatly deceived as to his actual condition,”
and died not an hour later. /bid. The court held the ac-
cusation inadmissible because “[iJt is the solemn state of
the declarant’s mind, in view of approaching death, which -
is thought to be equivalent to the sanction of an oath,”
and the declarant’s “mind at the very moment of the dec-
laration, according to his own view of the case, was not in
the state necessary.” bid.
Other cases reached similar results. Courts excluded
the statements of dying witnesses where the witness did
not apprehend his imminent death. See United States v.
Woods, 28 F. Cas. 762, 763 (C.C.D.C. 1834) (No. 16,760);
Montgomery v. State, 11 Ohio 424, 425-26 (1842); Smith
v. State, 28 Tenn. (9 Hum.) 9, 17-23 (1848). And they ad-
mitted such statements only after concluding that the
requisite mental state had been shown. See United
States v. Veitch, 28 F. Cas. 367, 367-68 (C.C.D.C. 1803)
(No. 16,614); King v. Commonwealth, 4 Va. (2 Va. Cas.)
78, 80-81 (Gen. Ct. 1817); Gibson v. Commonwealth, 4 Va.
(2 Va. Cas.) 111, 121 (Gen. Ct. 1817); State v. Poll, 8 N.C.
(1 Hawks) 442, 444 (1821); State v. Ferguson, 20 S.C.L. (2
Hill) 619, 623-24 (App. L. 1835); Anthony v. State, 19
Tenn. (Meigs) 265, 277-80 (1838); McLean v. State, 8 Mo.
153, 157-59 (1843); Hill v. Commonwealth, 43 Va. (2
Gratt.) 594, 607-11 (Gen. Ct. 1845); McDaniel v. State, 16
22
Miss. (8 S. & M.) 401, 415-16 (1847); Logan v. State, 28
Tenn. (9 Hum.) 24, 25-26 (1848); McLean v. State, 16 Ala.
672, 674-75 (1849); People v. Wood, 2 Edm. Sel. Cas. 71,
74-75 (N.Y. Sup. Ct. 1849). Statements of dying wit-
nesses were thus admissible against their accused killers
only if the witness anticipated his imminent demise.
B. The Dying-Declaration Cases Foreclose Cali-
fornia’s Rule’
1. That history of dying declarations forecloses the
California Supreme Court’s rule. In dozens of cases,
courts either excluded a dead witness’s statement accus-
ing his alleged killer because the declarant was not aware
of his impending death, or admitted the statement only
because the declarant was aware of his impending death.
Those decisions cannot be reconciled with California’s
version of the forfeiture rule, which would admit all those
statements without regard to the declarant’s mental
state. If any framing-era lawyer or judge shared Cali-
fornia’s understanding of the rule, surely someone would
have tried to invoke it. But the statements were analyzed
only as dying declarations; if they failed to qualify on that
basis, they were excluded.
If only a handful of cases were at issue, they might be
written off as incompetent lawyering—a prosecution
counsel overlooking another potentially applicable excep-
tion. The sheer number of cases, however, makes that
explanation implausible. In many cases, moreover, the
prosecution was well represented. In Radbourne, for ex-
ample, the Crown counsel was William Garrow, 1 Leach
at 460, 168 Eng. Rep. at 332, “the dominant [criminal]
barrister of the day,” Langbein (2003), supra, at 243, and
'° Although McDaniel briefly alludes to equitable considerations, 16
Miss. at 416, the court did not treat those considerations as an inde-
pendent basis for admitting the statements; rather, it made clear
that apprehension of imminent death was required, see id. at 415-16.
-
. 7"
:
:
;
:
|
23
“one of the foremost counsel of the era,” Landsman, The
Rise of the Contentious Spirit, 75 Cornell L. Rev. 497,
551 (1990); see also Beattie, Scales of Justice, 9 Law &
Hist. Rev. 221, 236-47 (1991). Admissibility in that case
was far from clear, see pp. 19-20, supra, and if anyone
could be expected to raise every conceivably applicable
hearsay exception, Garrow surely could.
That omission is all the more striking because Califor-
nia’s version of the forfeiture rule would subsume the dy-
ing-declaration rule in the mine-run of cases. At least in
the nineteenth century, the rule in most jurisdictions was
that dying declarations were admissible only in homicide
prosecutions. See 3 Wigmore, supra, §§ 1431-32, at 162-
64. But the vast majority of dying declarations in homi-
cide cases would also qualify under California’s version of
the forfeiture rule. Even if one could imagine exceptions,
cf. Dunn v. State, 2 Ark. 229, 245-47 (1840) (defendant
proffered victim’s declaration that he was “shot by mis-
take”), as a practical matter, California’s approach to for-
feiture would all but swallow the dying-declaration rule.
2. The California Supreme Court made no attempt to
explain the historical treatment of dying declarations.
Professor Richard Friedman (whose scholarship is large-
ly responsible for the line of cases that includes the deci-
sion below) does address the issue in his amicus brief.
See Br. of Richard D. Friedman as Amicus Curiae in
Support of Pet. for Cert. 11-14 (Nov. 29, 2007) (“Br.”).
On this point, however, his arguments are unpersuasive.
Professor Friedman does not dispute that trustwor-
thiness was the “traditional” rationale for admitting dy-
ing declarations. Br. 13. He contends, however, that that
rationale is “absurd” because dying declarations are not
particularly trustworthy. /d. at 12. He accordingly sug-
gests that their admissibility is better explained on for-
feiture grounds. /d. at 11.
24
That Professor Friedman does not find the framing-
era rationale persuasive, however, does not change what
that rationale actually was. The Confrontation Clause
“admit(s] only those exceptions established at the time of
the founding.” Crawford, 541 U.S. at 54. This Court
cannot, consistent with that holding, reject the framing-
era rationale for admitting dying declarations, replace it
with a new rationale, and then rely on that new rationale
to broaden the exception so as to admit testimony the
original rule would have excluded.”
Professor Friedman further argues that the tradi-
tional rationale for admitting dying declarations is incon-
sistent with Crawford’s rejection of a reliability-based _
approach. Br. 12-13. The doctrine that Crawford re-
jected, however, was the amorphous and ahistorical rule
that ex parte testimony of any sort was admissible if suf-
ficiently reliable, see Ohio v. Roberts, 448 U.S. 56, 66
(1980)—not the well-defined and eminently historical rule
that dying declarations are admissible because they
were deemed reliable. The “right” the Confrontation
Clause categorically protects is the right to confrontation
as it existed at common law. Admitting dying declara-
tions is consistent with that right. See Crawford, 541
US. at 56 n.6. Admitting other sorts of “reliable” ex
parte testimony is not.
Finally, Professor Friedman contends that it would be
an “abomination” to exclude statements where the de-
fendant caused the witness’s unavailability. Br. 13-14. In
case after case, however, framing-era courts did precisely
that. See pp. 17-22, supra. It is not an “abomination” to
“ Tronically, the California Supreme Court has previously held that
the dying-declaration exception survives Crawford on purely histori-
cal grounds, without reference to forfeiture principles. See People v.
Monterroso, 101 P.3d 956, 971-72 (Cal. 2004).
*
_
il
25
apply the Confrontation Clause as it was written and
originally understood. That is simply the rule of law.
The State denied Mr. Giles the right “to be confronted
with the witnesses against him” under any conceivable
literal meaning of those terms. It justifies doing so on
the basis of a purported historical exception, but it cannot
cite a single case applying the exception in a remotely
similar context, even though dozens of cases presented
similar fact patterns and would have been prime candi-
dates for application of the rule. Instead, the State relies
on the purported failure of factually inapposite forfei-
ture cases to exclude the rule’s application here. This
Court should insist on a more compelling historical show-
ing before creating an exception to a right the Sixth
Amendment expressly provides.
Ill. The California Supreme Court’s Decision Would
Significantly Expand the Use of Unreliable Ex
Parte Testimony in Criminal Trials
The absence of any meaningful historical support for
the California Supreme Court’s holding is reason enough
to reject it. But the court’s rule also threatens the fun-
damental fairness of criminal trials by inviting wide-
spread use of unreliable ex parte testimony.
A. The California Supreme Court’s Rule Could Be
Extended to a Wide Variety of Cases
As the California Supreme Court acknowledged, until
recently, courts generally applied the forfeiture rule only
to witness-tampering. J.A. 45. Since Crawford, however,
the doctrine has exploded, as prosecutors—confronted
with the demise of Ohio v. Roberts—have sought new
ways to introduce ex parte testimony. That trend will
only accelerate if this Court affirms the decision below.
1. In homicide cases alone, California’s rule would
radically expand the use of unreliable ex parte testimony.
Traditionally, courts admitted a decedent’s prior ex parte
26
accusations in a murder prosecution only if they qualified
as dying declarations. Thus, only statements made im-
mediately before the witness’s death would be admitted.
California’s rule, by contrast, would seem to justify ad-
mitting virtually anything the alleged murder victim ever
said. In this case, for example, the statement was made
three weeks before the shooting. J.A. 32, 35. Other
- courts have admitted statements even more remote: In
United States v. Garcia-Meza, 403 F.3d 364 (6th Cir.
2005), the court allowed statements the defendant’s wife
had made five months before her death, accusing the de-
fendant of assaulting her on another occasion because
“he was angry that she had been talking to a former boy-
friend.” Jd. at 366, 369. The court explained that “[t}he
Defendant, regardless of whether he intended to prevent
the witness from testifying against him or not, would
benefit through his own wrongdoing if such a witness’s
statements could not be used against him, which the rule
of forfeiture, based on principles of equity, does not per-
mit.” Jd. at 370-71. .
Other courts have relied on similarly broad forfeiture
theories to admit a wide variety of statements of alleged |
homicide victims. See, e.g., State v. Mason, 162 P.3d 396,
401-05 (Wash. 2007); State v. Jensen, 727 N.W.2d 518,
527-35 (Wis. 2007); People v. Bauder, 712 N.W.2d 506,
511-15 (Mich. Ct. App. 2005). Some courts have relied on
forfeiture to admit more traditional dying declarations.
See State v. Meeks, 88 P.3d 789, 792-95 (Kan. 2004), over-
ruled in part on other grounds by State v. Davis, 158 P.3d
317, 322 (Kan. 2006); United States v. Mayhew, 380 F.
Supp. 2d 961, 963-69 (S.D. Ohio 2005); Gonzales v. State,
155 S.W.3d 603, 605-06, 609-11 (Tex. App. 2004), aff’d on
other grounds, 195 S.W.3d 114, 125 (Tex. Crim. App.
2006). But even those courts, by discarding the tradi-
tional rationale for admitting such statements, invite fur-
ther expansion of the forfeiture rule.
27
2. If this Court affirms the decision below, moreover,
prosecutors will attempt to extend California’s rule be-
yond homicide cases. Although the witness in this case
was dead, forfeiture historically was not limited to dead
witnesses. See pp. 6-12, supra. Prosecutors would seek
to introduce ex parte statements in cases involving other
types of unavailability caused by the defendant.
Courts have recognized broad theories of unavailabil-
ity. For example, some courts have deemed witnesses
“unavailable” where the witness claimed to be psycho-
logically or emotionally unable to testify. See, e.g., Peo-
ple v. Stechly, 870 N.E.2d 333, 373 (Ill. 2007) (“{U]navail-
ability includes those child witnesses who are unable to
testify because of fear.”); Carter & Lyons, The Potential
Impact of Crawford v. Washington on Child Abuse, Eld-
erly Abuse and Domestic Violence Litigation, Champion,
Sept.-Oct. 2004, at 21, 22 (defendant’s mere presence in
the courtroom can render a witness “emotionally unavail-
able”). California law expressly allows courts to treat
certain witnesses as “medically unavailable” if “testimony
would cause the[m] emotional trauma.” Cal. Penal Code
§ 1346(d); see also Colo. Rev. Stat. § 18-3-413(3).
Since Crawford, prosecutors have routinely attempted
to combine those broad concepts of unavailability with
broad notions of forfeiture. They argue that defendants
forfeit their confrontation rights whenever the offense
for which they are being prosecuted rendered the witness
psychologically unavailable to testify—or, indeed, even
available to testify but at the cost of further psychologi-
cal trauma. In People v. Moreno, 160 P.3d 242 (Colo.
2007), for example, a trial court found an alleged child
abuse victim unavailable because testifying would cause
her to be “retraumatized”; “she could suffer enhanced
anxiety, fear, and humiliation; and the ‘trauma bond’ be-
tween her and the defendant could be renewed.” Jd. at
247. The State proffered her earlier ex parte testimony,
28
arguing that the defendant had “forfeited” his confronta-
tion rights because his alleged acts of child abuse were
responsible for the witness’s trauma. Jd. at 246. The
Colorado Supreme Court rejected that argument only
because it held, contrary to the California Supreme
Court below, that intent to prevent a witness from testi-
fying was required for forfeiture to apply. /d. at 247; see
also Stechly, 870 N.E.2d at 340-41, 348-54; State v. Hen-
derson, 160 P.3d 776, 793 (Kan. 2007).
Commentators have likewise taken up the charge.
One author argues that forfeiture should apply in domes-
tic-violence cases, even in the absence of a specific threat
to the witness not to testify, so long as the State shows
the “existence of a battering relationship built on power
and control dynamics.” King-Ries, Forfeiture by Wrong-
doing: A Panacea for Victimless Domestic Violence
Prosecutions, 39 Creighton L. Rev. 441, 444, 463 (2006).
Another author similarly argues: “Whether the reason is
fear of retaliation, physical terror of seeing the abuser, or
a desire to please and remain with the abuser, the cause
of a victim’s unavailability is the same—procurement by
the abuser through the abuse itself.” Krischer, “Though
Justice May Be Blind, It Is Not Stupid”: Applying Com-
mon Sense to Crawford in Domestic Violence Cases,
Prosecutor, Nov.-Dec. 2004, at 14, 16.
Unavailable witnesses are a routine feature of domes-
tic-violence and child-abuse cases. “{E]ighty to ninety
percent of domestic violence victims who appeal to the |
criminal justice system for help recant or otherwise fail
to assist the prosecution at some point in the proceed-
ings.” State v. Mechling, 633 S.E.2d 311, 324 (W. Va.
2006). Child abuse prosecutions encounter similar issues.
See Raeder, Remember the Ladies and the Children Too:
Crawford’s Impact on Domestic Violence and Child
Abuse Cases, 71 Brook. L. Rev. 311, 374-77 (2005). Be-
fore Crawford, prosecutors relied on Roberts to avoid
29
having to produce those alleged victims in court. See
Huff, Confronting Crawford, 85 Neb. L. Rev. 417, 435-36
(2006). This Court should not allow an expansive and his-
torically baseless forfeiture doctrine to become prosecu-
tors’ new tool of choice for evading confrontation rights.
B. The California Supreme Court’s Rule Would
Undermine the Fairness of Criminal Trials
Broad application of forfeiture would damage the fair-
ness of criminal trials. Confrontation is not a mere pro-
cedural formality. As the Framers well knew, accusa-
tions of criminal conduct are not always true. The Con-
frontation Clause reflects the Framers’ judgment that
the crucible of cross-examination is the best—and only
acceptable—method of ascertaining the truth. As any
defense lawyer will attest, cross-examination is no less
important to discovering the truth today. Compare, e.g.,
3 William Blackstone, Commentaries on the Laws of
England 373-74 (1768) (cross-examination will “sift out
the truth much better”), with Gerry Spence, Win Your
Case: How To Present, Persuade, and Prevail—Every
Place, Every Time 168-222 (2005) (cross-examination is
“the one best pry to disgorge the whole truth”).
The forfeiture doctrine allows convictions based on
precisely the sort of evidence the Confrontation Clause
was designed to guard against: untested—and thus pre-
sumptively unreliable—ex parte testimony. Here, for ex-
ample, the State presented Ms. Avie’s ex parte accusa-
tions of an earlier assault to prove that Mr. Giles mur-
dered her. Mr. Giles had no opportunity to cross-
examine Ms. Avie to show that her accusations were in-
complete, misleading, or false; that she was biased or had
some ulterior motive; or that her answers were the prod-
uct of slanted questioning by overzealous police officers.
Cf. 3 Blackstone, supra, at 373-74.
30
The state court thought that result “equitable” be-
cause Mr. Giles had murdered Ms. Avie. Of course, as in
most cases, that fact was disputed. Ms. Avie’s ex parte
testimony was allowed, not because we know Mr. Giles
murdered her, but because a panel of state judges made
a finding to that effect. That is no small difference. The
Framers secured the right to a common-law criminal
trial “by witness and jury” (2 How. St. Tr. at 15-16) pre-
cisely because judges can make mistakes (and typically
not in favor of defendants accused of heinous crimes).
The Framers allowed narrow exceptions, long recognized
at common law, for dying declarations or witness-tamper-
ing. The State’s pleas of “equity” notwithstanding, this
Court should go no further.
CONCLUSION
The decision of the California Supreme Court should
be reversed.
Respectfully submitted.
KENNON L. PETERSON JEFFREY A. LAMKEN
BAKER BOTTS L.L.P. Counsel of Record
98 San Jacinto Blvd. ROBERT K. KRY
Austin, TX 78701 BAKER BOTTs L.L.P.
(512) 322-2500 1299 Pennsylvania Ave., NW
Washington, D.C. 20004
(202) 639-7700
Counsel for Amicus Curiae
February 2008
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