But what if the defendant stands accused of the witness’s murder?
The justices agreed on Friday to hear a case presenting that wrinkle in the Sixth Amendment’s “confrontation clause.” It is an appeal brought by a California man convicted of shooting his former girlfriend to death several weeks after she complained to the police that he had threatened and beaten her. The trial court allowed the police officer who had responded to the girlfriend’s complaint to testify about her description of the matter.
The defendant, Dwayne Giles, argued unsuccessfully to the California Supreme Court that those statements should have been kept out of court, because there was no proof that he had killed the victim, Brenda Avie, for the purpose of preventing her testimony.
In allowing the statements, the California court applied an old doctrine called “forfeiture by wrongdoing,” which means that a person should not be permitted to profit from wrongful acts. To invoke the doctrine, it was not necessary to prove that the defendant’s motive was to make the witness unavailable, the state court said.
The question of whether proof of motive is necessary has come up with surprising frequency in courts around the country in the years since the Supreme Court’s 2004 decision in Crawford v. Washington. That decision greatly strengthened the Sixth Amendment right of defendants to confront the state’s witnesses by excluding statements from absent witnesses that previously had been commonly accepted, under the looser rules governing hearsay evidence.
Some legal scholars regard the Crawford decision as one of the Supreme Court’s most important criminal law rulings in recent years. The author of the 9-to-0 decision, Justice Antonin Scalia, based it on a literal reading of the language of the Sixth Amendment, which guarantees a defendant’s right “to be confronted with the witnesses against him.”
The decision was such an abrupt change in the law that it raised many questions for the court to resolve. One question was what type of statement counts as “testimonial,” requiring exclusion if the witness is unavailable.
The court offered a partial answer in 2006, ruling that a crime victim’s emergency call to 911 is a cry for help rather than a testimonial statement, and can therefore be admitted, but that statements given to the police at the crime scene amount to testimony and must be excluded.
In his unanimous opinion for the court in the 2006 case, Justice Scalia addressed concerns that victims of domestic violence, who are often afraid to testify in court, might suffer from such a rule. Defendants who “seek to undermine the judicial process by procuring or coercing silence from witnesses and victims” would forfeit the protection of the confrontation clause.
It is therefore likely that the justices accepted the new case, Giles v. California, No. 07-6053, to make it clear that as long as the victim’s unavailability as a witness was a foreseeable consequence of the murder, the Sixth Amendment does not require the state to prove the actual motive for the murder was to make the victim unavailable.
The Supreme Court on Friday also accepted a new case challenging a provision of the McCain-Feingold campaign finance law that it has not previously addressed. Known as the “millionaires’ amendment,” the provision requires self-financed candidates for the Senate or the House of Representatives to report their expenditures.
When the expenditures of personal money exceed a certain level, the opponents of these wealthy candidates are then permitted to accept contributions from individual donors at triple the limit on individual contributions that is set by the law.
Recognizing that the Supreme Court’s precedents forbid limits on the amount that candidates can spend on their own behalf, the provision of the 2002 law was intended to reduce the wealthy candidates’ competitive advantage, an advantage that both political parties have sought to exploit by recruiting candidates who can finance their own campaigns.
The challenge to the provision was brought by Jack Davis, a Democrat who twice ran unsuccessfully for the House of Representatives from Western New York, spending or lending himself millions of dollars of his own money.
Mr. Davis argued to a special three-judge Federal District Court here that the disclosure requirements placed an unconstitutional and “unilateral” burden on his right to political expression, and further that there was no constitutionally valid rationale for the provision that he called “unique in the history of campaign finance jurisprudence.”
In his Supreme Court appeal, Davis v. Federal Election Commission, No. 07-320, he argues that the anticorruption rationale that the court has accepted for campaign finance regulation is actually undermined by permitting the less-wealthy candidate to solicit more money from donors.
Both the new cases will be argued in April, in time for decisions by late June. A decision invalidating the “millionaires’ amendment” could therefore affect the current election cycle.