Reviving hope for domestic violence prosecutions: Giles v. California.

INTRODUCTION

On June 10, 2004, Los Angeles County Deputy Sheriff Eric Sandoval visited the home of Rickey Glen Luster and his wife, Barbara. (1) The Deputy Sheriff visited the Luster home because Barbara's psychologist asked the police to check on her after she missed an appointment she had promised to attend. (2) When the Deputy Sheriff arrived, he found Rickey outside wearing a football jersey covered in blood. (3) Deputy Sandoval asked Rickey about his wife, and Rickey responded that she was inside the house, taking a bath. (4) When Deputy Sandoval entered the home, he found Barbara's body on the living room floor, her face swollen and covered in blood. (5) A subsequent autopsy showed that Barbara had died from asphyxia, caused by strangulation. (6)

At trial, the California trial court admitted Barbara's statements to police from a domestic violence incident in 2003 under the forfeiture by wrongdoing doctrine. (7) Subsequently, in 2008, the Supreme Court decided Giles v. California, (8) stating that the testimony of a witness who is unavailable (9) is inadmissible under the doctrine of forfeiture by wrongdoing, unless the defendant specifically intended to prevent that witness from testifying. (10) Rickey appealed his conviction, claiming that Barbara's statements were impermissibly allowed into evidence. The court agreed and concluded that the 2003 statements should not have been admitted at Rickey's 2006 trial because Rickey did not kill "Barbara with the specific intent to prevent her from testifying anywhere, about anything." (11)

The result in Rickey's case demonstrates the courts' reluctance to admitting extrajudicial statements in the absence of a witness. The case confirmed professors' and practitioners' fear that Giles would prevent prosecutors from successfully prosecuting domestic violence (12) cases under the new standard. (13) In domestic violence cases, victims often refuse to testify in person at trial because abusers regularly intimidate them from seeking outside protection from law enforcement officials. (14) Statistics show that thirty percent of batterers assault their victims during prosecution, and as many as half threaten retaliatory violence. (15) As a result, prosecutors have little choice but to rely on victims' extrajudicial statements to convict batterers. However, the Giles holding seems to prevent such tactics. The remaining alternatives for prosecutors are to either pursue the case without enough evidence and undermine their chances of a successful prosecution, or have their case dismissed for lack of available evidence.

The Giles rationale is based on the Sixth Amendment right of criminal defendants to confront their accusers. If witnesses are not present at trial when they give their testimony, the accused cannot confront them. Thus, most out-of-court statements are not allowed into evidence. (16) This Note argues that it is still possible to include domestic violence victims' testimony in court despite Giles. If a domestic violence victim refuses to testify, and a prosecutor can prove that the victim is not testifying because the defendant intimidated her, the prosecutor may be able to successfully present testimony under the forfeiture by wrongdoing doctrine. (17) State and federal circuit courts have held that killing a witness or harassing a witness into not testifying is conduct that could satisfy the doctrine's wrongdoing standard. (18)

Giles is a setback for prosecutors. Nevertheless, the forfeiture by wrongdoing standard is still expansive enough to prosecute domestic abusers, even if a crucial witness is unavailable. Furthermore, by requiring pre-trial hearings to be governed by a preponderance of the evidence standard, state legislatures (19) will help prosecutors determine whether the forfeiture by wrongdoing standard applies whenever a crucial witness is unavailable.

Part I of this Note describes the cases that influenced the Giles opinion. Next, Part II evaluates the Giles opinion and its meaning for domestic violence cases in the future. Part III explains how the forfeiture by wrongdoing standard is expansive enough that defendants can be readily prosecuted. Finally, Part IV suggests that state legislatures should require pre-trial hearings for cases where forfeiture by wrongdoing may be an issue, and enforce a preponderance of the evidence standard at these hearings to aid in the prosecution of domestic violence cases.