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The California Supreme Court has broadened an exception to the confrontation clause of the Sixth Amendment to the U.S. Constitution. People v. Dwayne Giles, No. S129852. Defendants have always forfeited their right to cross-examine witnesses in cases where they had sought to ensure that witnesses were unable to testify in court, as in organized crime cases. Known as “forfeiture by wrongdoing,” the exception has given prosecutors a means to introduce out-of-court testimony. The California Supreme Court has now expanded that exception, stating that a defendant forfeits the constitutional right to confrontation even when the alleged witness harassment is the same as the offense for which the defendant is on trial-in this case, the killing of the witness. Moreover, the exception applies regardless of whether the defendant actually intended to silence the witnesses. This makes it even easier for prosecutors to admit hearsay evidence, especially in domestic violence cases in which witnesses are either killed or intimidated from testifying. Dwayne Giles admitted shooting his ex-girlfriend, Brenda Avie, in 2002, but claimed at trial that he had acted in self-defense. He testified that Avie had threatened to kill him and that he shot her several times because he was afraid she had something in her hand. The 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 her death, when Giles allegedly threatened to kill her. The defense argued that the forfeiture doctrine didn’t apply because the defendant didn’t kill the victim with the specific intent to prevent her from testifying. The court ruled, however, that Giles “forfeited his right to confront his ex-girlfriend when he killed her.” The California Supreme Court affirmed. “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.” 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. In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court barred testimonial out-of-court statements-except for when the witness is unavailable and the defendant had an opportunity to cross-examine. Nancy Lemon, a domestic violence lecturer at the University of California, Berkeley School of Law, co-authored an amicus brief in the Giles case urging the trial court to allow into evidence Avie’s statements. “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,” she said. “That greatly limited what prosecutors could do.”

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