I may seem surprising that the Supreme Court would rule that a murder defendant can keep the testimony of the victim out of trial unless the defendant killed the victim for the purpose of preventing the victim from testifying.
Keep in mind in reading this excerpt that Justice Antonin Scalia ultimately penned the decision, and Justice Anthony Kennedy joined Justice Stephen Breyer’s dissent in the case. Rapidly leaving the boat, indeed:
At oral arguments [in May], Los Angeles attorney Marilyn Gail Burkhardt, arguing on Giles’ behalf, seemed to have an ally in Justice Antonin Scalia – who jumped in on questions posed by other justices to help Burkhardt out in several instances.
Justice Anthony Kennedy questioned whether the statements were being offered as testimonial evidence or to prove Giles’ state of mind – a crucial issue under the Crawford analysis.
“[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,” he said. “Is there an exception to the hearsay rule so long as the hearsay is brought in [during] rebuttal?”
“Not to my knowledge,” Burkhardt answered.
Justice Stephen Breyer turned to 17th and 18th century common law to determine what the purpose of the Confrontation Clause was, noting that testimony by wives, children, atheists and convicted felons was not admitted.
“So now are we supposed to incorporate all of these things into the Confrontation Clause?” Breyer asked.
“Do any of them have anything to do with the Confrontation Clause?” Scalia interjected.
“No,” Burkhardt said.
“It doesn’t have to do with the Confrontation Clause that you couldn’t cross-examine a person who didn’t understand the meaning of the oath?” Breyer persisted.
“The Confrontation Clause sets forth a basic policy, which is that we are to have live testimony in court,” Burkhardt said. “We have to have witnesses available in court.”
Later, Kennedy tried to steer the conversation back to Breyer’s point.
“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 answer, Scalia interjected again.
“And besides which, the question that Justice Breyer was asking was already answered in Crawford, wasn’t it?” he asked.
“Yes, it was,” Burkhardt said.
“A case from which he dissented,” Scalia said, referring to Breyer.
“That is right,” Burkhardt added.
Later Breyer corrected 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 from the audience.