U. S. Supreme Court: Constitution Permits An Accused To "Confront" An Accuser, Unless The Accused, With Intent, Caused Accuser's "Unavailability".

The case is GILES v. CALIFORNIA, 07–6053 (2008), where a SEVERELY fractured 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", and that the state of California's "theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding."

For those of you who want a QUICK conclusion, please scroll to the bottom. For others, here's the Court's analysis of the case, by Justice Scalia:

At petitioner Giles’ murder trial, the court allowed prosecutors to introduce
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 murder 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 unavailable to testify. The State Supreme Court affirmed on the same ground.

Held: The California Supreme Court’s theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding.
(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 testifying.
In cases where the evidence suggested that the defendant wrongfully caused the absence of a witness, but had not done so to prevent the witness from testifying, unconfronted testimony was excluded 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.
(c)
Not only was California’s proposed exception to the confrontation 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 forfeiture to admit statements outside the context of conduct designed to prevent a witness from testifying. The view that the exception applies only when the defendant intends to make a witness unavailable is also supported by modern authorities, such as Federal Rule of Evidence 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 testimony by an unavailable witness is always admissible, wrongful procurement or not. See Crawford, supra, at 68. Pp. 15–20.
(e)
Acts of domestic violence are often intended to dissuade a victim from resorting to outside help. A defendant’s prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant’s subsequent act causing the witness’s absence, as would evidence 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.
vacated and remanded.

Editor's comment: I agree with the Court's opinion, particularly this nugget from -- believe it or not -- Justices Souter and Ginsburg (the Court's MOST Liberal Justices, who supported Justice Scalia's opinion -- Justice Scalia is the Court's MOST Conservative!):

"Examining the early cases and commentary, however,reveals two things that count in favor of the Court’s understanding of forfeiture when the evidence shows domestic
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; otherwise 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 absence 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 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."

At the same time, I disagree with the other Liberal Justices' suggestion that California's "theory of forfeiture" is constitutionally acceptable, as "one who obtains the absence of a witness by wrongdoing [in this instance the homicide itself] forfeits the constitutional right to confrontation.”

In conclusion, and for the benefit of non lawyers, this case means that an accused may confront his accuser, unless the accused has done something to the accuser with intent to make the accuser not appear in court to testify against the accused.