Bashman brings an  AP report that the Supreme Court has granted cert in Giles v. California, a post-Crawford case challenging whether the statements of a murder victim can be admitted into evidence, since the defense cannot cross the deceased.

There has long been an exception that where a person has been murdered to prevent his or her testimony, the defendant cannot gain the benefit of the intentional act of murder to preclude the testimony.  But this case involves no such claim of murder to preclude testimony.  Rather, it’s a straight out murder case.  The court in Giles held that regardless of this distinction, the words of the deceased can be used against the defendant.

Societal norms tell us that we can’t speak ill of the dead.  It’s offensive and paints the speaker as inhumane and despicable.  That’s fine when it comes to cocktail party chatter, or talk around the water cooler, but it presents a problem in court.  When the dead speak to the jury, it carries unbearable weight.  It is devastating.  And there’s nothing you can do to change this.  Even when the dead person wasn’t exactly a saint, she somehow becomes less assailable in death than she ever was in life.  Rest in peace.

What’s wrong with this?  A lot.  The testimony comes in through a third person, the party to whom the dead person’s words were allegedly spoken.  Assuming, arguendo, that the witness isn’t fabricating the words of the dead person, or enhancing them for affect, they are only there to say that the words themselves were uttered.  They cannot bring the context, what preceded the speaking of the words outside the third person’s presence or what happened after, to the witness stand. 

Nor can a third person expound on the dead person’s motive for speaking the words.  Was she angry, and exaggerating when she spoke for dramatic effect?  Was she trying to elicit the support and comfort of the third person, thus leaving out her own role in the underlying context that would have put her in a bad light?  Many of us tell our stories to our friends in such a way that we look better than we deserve.  After all, we aren’t under oath and we are speaking to a buddy.  Who says we can’t spin things for our own benefit in ordinary conversation?
 
But all of this is outside the reach of the defendant when the witness who uttered the words doesn’t testify.  The entire purpose of cross-examination, to test the truthfulness, the accuracy, the implications of affirmative testimony, is lost when the only breathing person is a third person. 

Given Crawford, the question turns on whether the “right” (and I add that the government has no “rights”, just authority) to present this damning evidence trumps the defendant’s constitutional right to cross-examine witnesses.  But how can the Supreme Court rule against the use of this evidence, acknowledged by all to have some hugely sympathetic component that just makes it feel so every wrong to keep it out?   There will be outrage across the nation at such a heartless ruling, characterized as coddling criminals, encouraging murders and preventing justice. 

But we know why the right decision is to preclude the admission of evidence that is not subject to cross-examination.  Every lawyer who has ever tried a case where the defendant was tainted by hearsay, admitted through the zillion backdoors that exist for the purpose of convicting despite the law, knows the impossible situation this evidence creates.  Every honest judge knows that by letting this testimony in, she’s enabling a conviction that couldn’t be won on proper evidence.  And every time this happens, we all know that the real purpose, rhetoric aside, is to guarantee that the ‘bad guy” gets convicted, no matter what.

As much as I may be subject to Gideon’s slings and arrows for writing this (as he accuses me of being obsessed with Justice Antonin Scalia, although I’m NOT), my best hope is that the champion of Crawford will step up again to make the unpopular, but legally correct, decision that the Constitutional right to confront witnesses prevails over the resort to sympathy and appeal to prejudice. 

Update:  Linda Greenhouse in the  New York Times speculates that the court will rule in favor of permitting the statements of the victim to come in:

It is therefore likely that the justices accepted the new case, Giles v. California, No. 07-6053, to make it clear that as long as the victim’s unavailability as a witness was a foreseeable consequence of the murder, the Sixth Amendment does not require the state to prove the actual motive for the murder was to make the victim unavailable.

Her reasoning stems from a portion of Crawford’s author’s subsequent 2006 opinion relating to admissibility of statements where the intention for murder was to prevent the individual to testify,

Defendants who “seek to undermine the judicial process by procuring or coercing silence from witnesses and victims” would forfeit the protection of the confrontation clause.

Frankly, I don’t think she gets the distinction.  The author, who shall remain a nameless Nino, will most assuredly be able to appreciate the distinction.  I trust he will.