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On Giles


In the hubbub over Kennedy & Exxon today, little attention has been paid to Giles v. California, a case on which I worked (for the record, my SCOTUS record is now 1-0).

In an opinion by Justice Scalia, the Court today held 6-3 that a criminal defendant does not forfeit his Sixth Amendment right to confront the witnesses against him simply because he has killed the witness or otherwise kept her away unless he did so in order to prevent her from testifying.

The facts (in short) were as follows: Giles shot his former girlfriend, Brenda Avie. About a month before he shot her, they had an altercation, after which she called the police. At Giles’s murder trial, the state introduced the police report (from the month before) to prove that Giles killed Avie. Giles objected because he did not have an opportunity to cross examine Avie. The report came in under a state law that said that a person forfeited his confrontation right not only by witness tampering, but by any action that prevents a person from testifying, even if there was no legal proceeding happening at the time the defendant took the action that later kept the witness away. More traditionally, and under the Federal Rules of Evidence, a defendant forfeits his confrontation right only by keeping away a person who is already a witness.

The Court today struck down California’s law and insured that defendants get sufficient protection of their confrontation rights. But the oral argument and the written opinions set up a dichotomy that appears time and again in my work: when issues of women’s rights clash with issues of defendants’ rights, what is the progressive feminist to do? Here, the protection of defendants’ rights may make it more difficult to prosecute domestic violence cases. But any other rule would virtually gut the confrontation clause — a bedrock protection for vulnerable defendants.

In this case, I’m willing to put the extra burden on prosecutors of figuring out how to prove their DV cases in a way that does not threaten the confrontation right. Which – strangely for me – means I am more aligned with the conservatives on the Court than the more liberals.

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