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In a ruling expected to aid domestic violence prosecutions, the California Supreme Court broadened an exception to the confrontation clause of the Sixth Amendment. Defendants have always forfeited the right to cross-examine witnesses in cases where the defendant made a witness unable to testify in court, as in organized crime cases. Known as “forfeiture by wrongdoing,” the exception has given prosecutors a backdoor for bringing in out-of-court testimony. On Monday, the court expanded that exception, stating that the defendant forfeits the constitutional right to confrontation even when the alleged witness tampering is the same as the offense the defendant is on trial for � in this case, killing the witness. More importantly, the exception applies regardless of whether the defendant actually intended to silence the witnesses. For prosecutors, that means a bigger loophole for admitting hearsay evidence, especially in domestic violence cases in which witnesses are either killed or intimidated from testifying. “Although courts have traditionally applied the forfeiture rule to witness-tampering cases,” Justice Ming Chin wrote for the majority, “forfeiture principles can and should logically and equitably be extended to other types of cases in which an intent-to-silence element is missing.” All of the justices agreed on this point. However, writing in concurrence, Justice Kathryn Mickle Werdegar held that her colleagues went too far when they ruled that for prosecutors to use this type of hearsay testimony, they must now only prove the defendant’s wrongdoing by a preponderance of the evidence and not by a higher, clear and convincing standard. “Constitutional analysis should not be embarked on lightly and never when a case’s resolution does not demand it,” Werdegar wrote, who then bolstered her argument by citing a concurrence once penned by her colleague � Chief Justice Ronald George � when he was an associate justice writing in Rider v. County of San Diego (1991) 1 Cal.4th 1, 17. Justice Carlos Moreno joined Werdegar in concurrence. In this case, defendant Dwayne Giles admitted shooting his ex-girlfriend, Brenda Avie, in 2002, but claimed in Los Angeles County Superior Court that he had acted in self-defense, according to the ruling. He testified in the trial court that Avie threatened to kill him and that he shot her several times because he was afraid she had something in her hand. The trial court allowed the prosecution to use hearsay statements by a police officer who had interviewed Avie on a domestic violence call just a few weeks before Giles murdered her, when Giles allegedly threatened to kill her. The defense argued the forfeiture doctrine didn’t apply because the defendant didn’t kill the victim with a specific intent to prevent her from testifying. The defendant killed the victim for unrelated personal reasons, Giles’ attorney argued. But Giles, the court ruled, “forfeited his right to confront his ex-girlfriend when he killed her.” In the case of Crawford v. Washington, 541 U.S. 36, in 2004, the U.S. Supreme Court barred testimonial out-of-court statements � except for when the witness was unavailable and the defendant had an opportunity to cross-examine the declarant. Nancy Lemon, a domestic violence lecturer at Boalt Hall School of Law, co-authored an amicus brief in the Giles case urging the trial court to allow into evidence Avie’s statements made to the police officer. “It’s very, very common for victims of domestic violence to make statements to the police or to other people, which later may not be accessible under Crawford,” Lemon said. “That greatly limited what prosecutors could do.” Deputy Attorney General Russell Lehman argued the case and said he was pleased with the court’s ruling, particularly because he believed it shouldn’t make any difference what Giles’ intentions were in killing her and therefore making her unavailable to testify against him. Giles’ attorney, Marilyn Burkhardt of West Los Angeles, was unable to be reached.

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