Academic

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I too attended the argument yesterday in Giles. The Court spent considerable time on the question of whether the common law dying declaration cases preclude California's application of the forfeiture by wrongdoing doctrine in the Giles case. It seems to me the most persuasive reason for why they do not is because the common law treated dying declarations as a special category of evidence, and subjected statements made after a potentially fatal wound had been suffered to particularly exacting standards of reliability. If a purported dying declaration did not satisfy those standards, it was excluded -- not because the admission would violate the confrontation right, but because the statement was insufficiently reliable given the special and dramatic nature of dying declarations and the risks such statements could overly influence the jury. See DV LEAP Amicus Br. at 17. Because dying declarations were a distinct category of evidence with their own rules for admissibility, the common law cases involving statements that do not satisfy the standards for admission as dying declaration do no go on to examine the evidence under the forfeiture doctrine. But that fact tells us nothing about the application of the forfeiture doctrine to cases that do not involve dying declarations. The dying declaration cases simply did not involve the forfeiture by wrongdoing rule at issue in Giles.

But, importantly, while the dying declaration cases are distinguishable, they are also consistent with the forfeiture doctrine adopted by California. The best example of this is McDaniel v. State, 1847 WL 5865 (Miss. Err. & App. 1847) -- an early American case. After holding that the standards for a dying declaration were satisfied, the Court rejected the defendant's claim that admission of the statement would nonetheless violate his confrontation right, expressly relying on the forfeiture by wrongdoing principle for why confrontation was not violated. McDaniel therefore supports the view that the dying declaration exception incorporates and is consistent with California's view that the forfeiture-by-wrongdoing doctrine satisfies confrontation concerns even outside the traditional witness-tampering context, even though the dying declaration exception also includes additional reliability limitations above and beyond the confrontation right that are not at issue here.

Full post as published by The Confrontation Blog on April 23, 2008 (boomark / email).