Selective Originalism: Sorting Out Which Aspects of Giles's Forfeiture Exception to Confrontation Were or Were Not 'Established at the Time of the Founding'

Abstract

In Giles v. California (2008), as in Crawford v. Washington (2004), Justice Scalia's majority opinion purported to follow the framing-era Confrontation Clause. Giles did comport with historical doctrine insofar as it limited forfeiture by wrongdoing to instances of a defendant's deliberate witness tampering. However, Giles departed from framing-era doctrine in other, fundamental ways. Specifically, in framing-era law forfeiture applied only to sworn prior testimony given under the Marian statutes; that is either in Marian post-arrest committal proceedings or in coroners' inquests. Likewise, during the nineteenth century, forfeiture applied only to prior sworn and confronted testimony. Forfeiture was never a basis for admitting unsworn and unconfronted hearsay statements such as that at issue in Giles until the late twentieth century - and then were allowed under the Roberts "reliability" formulation of confrontation that Crawford rejected as an inadequate formulation of the right. Hence, a genuine "originalist" analysis would have undermined the constitutionality of current Federal Rule of Evidence 804(b)(6).

Additionally, all of the opinions in Giles persisted in endorsing Crawford's completely fictional claim that the original confrontation right regulated only "testimonial" hearsay, but did not apply at all to "nontestimonial" hearsay - notwithstanding that Justice Scalia made several assertions in Giles that undercut that pretended historical distinction. For example, and in contrast to Crawford, he acknowledged that the general ban against hearsay arose from the same roots as the confrontation right itself. Nevertheless, dicta in Giles indicates that the justices intend to narrowly confine "testimonial" hearsay - and thus the confrontation right itself - to only those hearsay statements made to (or by) government officers, but to exempt all other hearsay as "nontestimonial," including even statements made to physicians or nurses involved in gathering evidence for domestic violence prosecutions. In sum, the purported originalism in Giles was so selective that it did not amount to originalism at all.

Keywords: confrontation, forfeiture, Giles, Crawford, Scalia, Breyer, originalism, original meaning, Marian, testimonial, hearsay, 804(b)(6)