Kill Witness, Go to Jail (Do Not Pass Go, Do Not Collect Sixth Amendment RIghts)

A few years ago, the Supreme Court stood criminal trial practice on its ear by deciding, contrary to several decades of recent precedent, that the Sixth Amendment's right to confront witnesses really meant something. "Something," of course, being, the right to actually confront and cross-examine those witnesses. If the defendant can't confront the witness, the prosecution can't use any prior statements against him. Since then, the Court has been tinkering with the results.

This term, the Court is figuring out an interesting confrontation issue that Sherry Colb over at FindLaw writes about:

At Giles’s trial, the prosecutor offered the victim’s police statement as worthy of belief - as 'hearsay,' in other words. The victim, because she is deceased, was not available for cross-examination. Was it proper for the trial judge to admit her statement to the police, even though the defendant could not expose its weaknesses through cross-examination? That is what the Court must decide.

At issue is the common law rule of "Forfeiture by Wrongdoing" (which is also written into the Federal Rules of Evidence). The rule says, in essence, if you kill a witness, you can't complain about not being able to confront that witness at trial.

Makes sense, right? But the rule appears to be directed at situations where the defendant kills the witness to prevent him/her from testifying against him at a particular trial - i.e., Angry Bob kills (or otherwise renders unavailable) Steve before Steve can testify that he saw Angry Bob steal his neighbor's yard flamingos.

The situation in Giles is quite different - the absent witness in Giles is the murder victim herself. It's absurd to say that Giles killed her in order to keep her from testifying against him in a trial for killing her! On top of that, the earlier victim's statement comes in if the trial court determines - by a preponderance of the evidence, not beyond a reasonable doubt - that Giles committed the offense for which he is on trial. It's an odd form of evidentiary bootstrapping, in my book.

Regardless, it will be interesting to see what happens.