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Attorney Scalia, for the defense

Los Angeles attorney Marilyn Burkhardt seemed to have a tough task this morning: convincing the justices of the Supreme Court that a defendant in a murder trial should be able to exclude the testimony of the victim because she is unavailable for cross examination, so long as he didn’t kill her for the purpose of making her unavailable for trial.

But she had a valuable asset during oral arguments in Giles v. California: Justice Antonin Scalia, who jumped to her aid several times – even answering questions posed by the other justices for Burkhardt.

At one point Justice Anthony Kennedy was trying to determine what prosecution sought to prove by introducing the victim statements at issue – statements that the she had been choked, munched and threatened by the defendant.

“[It seems] to me that this is responsive to his defense” of self defense, Kennedy said. “And you say: ‘well, it’s his state of mind, and her testimony was general.’ I think it does go to his state of mind.”

Before Burkhardt could respond, Scalia did.

“I’m not following you,” Scalia said. “Is there — is there an exception to the hearsay rule so long as the hearsay is brought in, in rebuttal? Is there a rebuttal exception to the hearsay rule?”

Later, when Justice Stephen Breyer was in the middle of posing of a detailed hypothetical, Scalia chimed in again, poking fun of Breyer’s previous position of Harvard Law School professor.

“He is thinking about Cambridge – and not England,” Scalia quipped, drawing laughter before Breyer continued with his question.

Breyer ended his hypothetical by asking Burkhardt: “So now are we supposed to incorporate all of these things into the Confrontation Clause?”

“Do any of them have anything to do with the Confrontation Clause?” Scalia answered back, leaving Burkhardt to answer simply: “No.”

[Much more after the jump]

Later, Kennedy tried steer the questioning back to Breyer’s point on the common law origins of the Confrontation Clause right. “I think what Justice Breyer’s line of questioning points out is that there were other provisions of the evidence rule followed in England which would not allow the testimony to come in, in the first place,” Kennedy said. “But because of the restrictions he points to, there was never the occasion for the common law to explore the boundaries of the forfeiture exception in the confrontation context.”

Before Burkhardt could get an answer out, Scalia interjected again.

“And besides which, the question that Justice Breyer was asking was already answered in Crawford [v. Washington] wasn’t it?” Scalia asked, again making Burkhardt’s response short and easy.

“Yes, it was,” she said.

“A case from which he dissented,” Scalia added for extra measure.

“That is right,” Burkhardt added.

Later, when Burkhardt ran into a little trouble explaining the rationale for the “dying declaration” hearsay exception, Scalia came to the rescue again.

“If the dying declaration rule didn’t require intent, why should yours?” Chief Justice John Roberts asked Burkhardt.

“Because the forfeiture rule, which is entirely a separate rule of common law, did require intent to prevent testimony,” Burkhardt began. “It has always been viewed that way from its inception in Lord Morley’s Case–”

Scalia leaned forward and jumped in mid-sentence.

“Instead of intent, the dying declaration rule required knowledge by the declarant that the declarant was about to die,” Scalia stated.

“Correct,” Burkhardt agreed.

“Right?” Scalia said, trying to turn his answer into a question.

“That’s right,” Burkhardt answered.

“And the evidence of truthfulness was apparently that the person was about to enter the next world,” Scalia continued.

“That’s right,” Burkhardt cosigned.

“And most of us don’t lie at that particular moment,” Scalia went on. “Whereas, in the Confrontation situation you have a totally different situation.”

“Correct,” Burkhardt.

Then Breyer jumped in to belatedly correct Scalia.

“I joined Crawford, and Justice Scalia would like to kick me off the boat, which I’m rapidly leaving in any event,” Breyer said, drawing laughter.

“You jumped off in Crawford, I thought,” Scalia said.

[A check of the case by DC Dicta reveals that Breyer did indeed join the Crawford majority opinion, penned by Scalia.]

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