U.S. Sup. Ct. Limits Wrongdoing by Forfeiture Doctrine and upholds Right to Confront Witness

Case: Giles v. California, 07-6053. Issue: Does the wrongdoing by forfeiture doctrine apply to statements made by a murder victim before her death? Holding: No. The doctrine only applies if the defendant murdered the victim with the intent to prevent her from testifying.

by David Ziemer June 26, 2008  Wisconsin Law Journal

Mark D. Jensen, convicted earlier this year of murdering his wife in 1998, may have to be retried.
On June 25, the U.S. Supreme Court issued its long-awaited decision in Giles v. California. The high court rejected the State of California’s theory that the defendant, by killing the witness, waived his right to question her. The majority found that theory was contrary to the common law embodied in the Confrontation Clause.
Speaking for the majority, Justice Antonin Scalia wrote, “American courts never – prior to 1985 – invoked forfeiture outside the context of deliberate witness tampering.”
In Jensen’s case, the Wisconsin Supreme Court adopted the same theory as California had.
Stephen Glynn, of Glynn, Fitzgerald & Albee, S.C., one of Jensen’s attorneys, hailed the Supreme Court’s ruling in Giles.
“The majority opinion could have been taken straight out of my partner, Craig Albee’s, brief in the Jensen case,” he stated.
Giles Decision
In the California case, Dwayne Giles was charged with murdering Brenda Avie, his ex-girlfriend. Over his objection, the trial court admitted into evidence statements that Avie had given to police three weeks earlier, while the officer was investigating a domestic violence incident.
The jury found Giles guilty, and the California Supreme Court affirmed his conviction.
The state courts concluded that Giles forfeited his right to confront Avie, because his criminal act of murdering her made Avie unable to testify.
In an opinion by Justice Antonin Scalia, the U.S. Supreme Court reversed, holding that the forfeiture by wrongdoing doctrine only applies when the defendant made a witness unavailable with the intent of doing so.
Reviewing the history of the doctrine, the court traced its roots to the 1666 decision in Lord Morley’s Case, 6 How. St. Tr. 769 (H.L. 1666). In Lord Morley’s Case, the court held that, because the defendant procured the detention of a witness, the witness’ previously testimony given at a coroner’s inquest could be read to the jury.
In contrast, the court noted King v. Woodcock, 1 Leach 500, (1789). Woodcock was accused of murdering his wife, who gave a statement after the beating, but before her death, accusing her husband of the murder.
The court held that the statement could not be admitted at Woodcock’s trial, unless the victim was under the apprehension of death when she made the statement.
The court also cited an 1858 treatise on the doctrine, stating that the forfeiture rule applied only 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) (emphasis added by court).
Distilling these and other authorities, the court concluded that, at common law, the forfeiture by wrongdoing doctrine was limited to conduct designed to prevent a witness from testifying.
Justice Scalia wrote, “The absence of a forfeiture rule covering this sort of conduct 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 defendant is obviously guilty.’ (cite omitted)(emphasis in original).”
The court remanded the case to the trial court to consider evidence of the defendant’s intent in killing his wife on remand.
Ramifications for Jensen
That decision may have ramifications for Mark D. Jensen, who was convicted of murdering his wife, Julie.
The circuit court refused to admit into evidence a letter that Julie had written, which stated that she feared Mark was going to murder her.
However, the Wisconsin Supreme Court reversed. State v. Jensen, 2007 WI 26, 299 Wis.2d 267, 727 N.W.2d 518.
The state high court wrote, “The 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 principle of equity, does not permit.” Jensen, 727 N.W.2d at 534-35.
On remand to the circuit court, the evidence was admitted and Jensen was convicted. He has since appealed.
Applying Giles
Stating there is no basis to distinguish the two cases, Glynn said that the only argument would be that Julie’s statements constituted dying declarations. However, he said that argument was undermined by the Giles opinion, too.
“The [c]ourt cited with approval 5 or 6 cases in which a stronger argument could made that the statements at issue were dying declarations, than in the Jensen case, and yet were found inadmissible under the Confrontation Clause, “ he observed.
Despite the similarities between Jensen and Giles, attorney Robert J. Jambois, who prosecuted the Jensen case, does not expect the conviction will be reversed.
In an interview, Jambois said the cases are distinguishable, because the Jensen case did not involve a typical domestic abuse situation.
Usually, he noted, when a woman is murdered by her spouse, it is a crime of passion.
Frequently, alcohol is involved. In contrast, “Here, there was cold, calculated, prolonged planning to achieve the objective.”
Jambois also stated that the purpose of the crime was to prevent Julie from seeking a divorce. “He wanted to preserve the entire marital estate for him alone.”
The Wisconsin Department of Justice did not return calls for comment.
In an interview with the Milwaukee Journal-Sentinel shortly after Jensen was convicted, Marguerite Moeller, the assistant attorney general who argued the case in the Wisconsin Supreme Court, said that, if the U.S. Supreme Court were to rule in Giles favor, Jensen would have a good chance at a new trial.
Likely to be at the center of the arguments in the Jensen case if it goes to the Wisconsin Court of Appeals will be one paragraph in the Giles opinion discussing domestic violence.
That paragraph states in relevant part, “Acts of domestic violence often are intended 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 expressed 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 statements 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 proceedings at which the victim would have been expected to testify.”
In the Giles case, the Supreme Court remanded for consideration of Giles’ intent, in light of this paragraph.
Similarly, in Jensen’s case, interpretation of this paragraph will determine whether Julie’s statements would have been admissible, even if the Wisconsin courts had employed the proper legal test.
Glynn said it was unfortunate, though, that the Giles opinion was not released before the Wisconsin Supreme Court election, in which the Jensen case was a campaign issue.
“It is unfortunate that it is too late to vindicate the position of Justice Butler, who was the only justice on the Wisconsin Supreme Court who recognized that the broad forfeiture by wrongdoing doctrine adopted by the majority had no basis,” he said

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