A very touchy issue was the subject of this Los Angeles Times editorial, supporting the California Supreme Court’s affirmance of a murder conviction in People v. Giles and looks for affirmance from SCOTUS.  In this case, Dwayne Giles was convicted of murdering Brenda Avie based upon statements she made to police a few weeks in advance of her death, that Giles had assaulted her and threatened her with a knife.  Oral argument is now over and we await decision.

The statement by Brenda Avie was introduced at Giles’ trial.  The Supreme Court upheld the admission of that testimony, over challenges that it was hearsay and that it denied the defendant the right to confront witnesses.

The editorial begins with the ignominious comparison to the child who killed his parents and begs for the mercy o the court because he’s an orphan.  It’s a poor analogy.

In a case reminiscent of the story of the boy who killed his parents and then asked for mercy because he was an orphan, the U.S. Supreme Court has been asked to overturn a California man’s murder conviction because the victim’s statements about his violent nature were read in court. The case is legally more complex than the apocryphal story about the orphan, but the principle is the same: A defendant shouldn’t benefit from silencing his accuser.

The Giles case raises some very real issues that not so easily ignored, but can easily result in the conviction of an innocent person.  In Giles, the defendant claimed that Avie was the aggressor and that he acted in self-defense.  This adds an additional problem, since we are naturally biased against the notion that women would be violent aggressors against men, even though it is a remarkably common occurrence that flies in the face of “common wisdom.”

Testimony from the grave is some of the most persuasive evidence around.  Our natural tendency to feel sympathy for the dead lends a level of credence that is hard to challenge.  It is wrong to think ill of the dead.  Jurors don’t want to do so.  The evidence, therefore, takes on a degree of credibility far beyond that of almost any other type of testimony.

The problem with this is multifold.  At its lowest level, there is no assurance that the testimony of a police officer as to the statement of deceased is accurate, complete or clear.  Even if we assume that the officer has not embellished the statement for purpose of using it effectively at trial, whatever he says it is cannot be questioned.  There is just no way to effectively challenge the content of the statement, even though it is necessarily filtered through the officer. 

Did the officer understand what he was being told, or did he “translate” the statement of the deceased into his own vision of what she was trying to say?  Did he get all the salient information, or did he fail to ask questions that might change the significance of her complaint?  Did he transcribe it correctly?  Did she write out the statement accurately? 

Often, when complainants are asked to write out statements, their own lack of education or writing skills results in a markedly inaccurate statement of fact.  Word-smithing is a difficult job, and most people aren’t very good at it.  Yet the specific words later become critical, particularly when there is no one to ask, “What did you mean by this?”

Then comes the problem of whether the underlying allegations are truthful, or completely truthful.   Austin criminal defense lawyer Jamie Spencer (he makes me write this) recently posted about a comment left at his blawg:

I called the police on my boyfriend and said he hit me with a gun which never happened. I was mad and I wanted him to go to jail that day.

But now I feel bad for lying and I want to tell the truth but I don’t know what will happen since I lied to the police.

Please help me and tell me what I should do.

It happens.  And it happens with greater frequency in emotionally charged relationships.  How does one distinguish between the angry liar and victim?  There’s no answer to this question when there’s no witness to cross-examine.

It is initially up to the judge to serve as gate-keeper to evidence such as this to determine whether there is sufficient indicia of the truthfulness of the underlying statement.  But there’s no secret method that judges possess to tell which is true and which is false.  They play the same guessing game as anyone else.  This is a huge weak link in the chain of evidence control, and contrary to popular assumptions, judges have no better way to “know” the truth than anyone else.  It’s sheer speculation, with the defendant’s life hinging on the outcome.

The flip side of the problem, as the LA Times editorial argues, is that a defendant should not be allowed to gain an advantage by having murdered the witness against him and thus left no witness to testify against him.  The merit of this position is clear.  To allow the defendant to prevail by an act of murder is to encourage murder and to defeat justice.

But there is sound reasoning on both sides of this equation, and little to distinguish which direction is better or worse as a general rule.  The issue is sometimes resolved in favor of the side that does the most complaining, as in the deceased having told 20 friends what a bad and violent man her boyfriend/spouse/partner was.  This “strength in numbers” approach shifts the weight of evidence in favor of admitting the statement of the deceased into evidence.

This too presents problems, often worse than a mere single statement.  If a person is inclined to verbalize anger toward another, that person may be very likely inclined to do it with frequency or regularity, telling the same story to many people.  But does a lie told often enough become truth?  Clearly not, but it becomes a very convincing lie.

Ultimately, it seem that the admissibility of the statement used to convict Dwayne Giles should turn on a more reasoned approach to evidence and the criminal justice system in general.  Since a defendant is presumed innocent, then it cannot be presumed that the defendant committed murder that prevented a witness from being available to testify against the defendant so that the statement can be used to convict the defendant of murder. 

Similarly, the judge as gatekeeper must require more than bias, speculation or repetition as indicia of truthfulness before allowing a statement to be used when the defendant will be denied the right to confrontation.  There is a cottage industry in the “spousal abuse” field that provides prosecutors with tools to circumvent rules that apply to all other crimes in order to obtain convictions based on bad and unreliable evidence.  This has been extremely dangerous, and yet has been accepted regularly by judges inclined to be adopt the notion that abuse of women is so different, so special, that convicting innocent people is worth the price.  The proponents of this evidentiary abuse take the position that the men are invariably abusers and criminals and the women always victims.  It’s hard to argue when someone holds that mindset, since it falls under “no harm, no foul.”

While it is understandable that the LA Times doesn’t want a murderer to walk, its editorial position was decidedly myopic and failed to account for the significant problems raised by using statements from the grave to convict people.  Perhaps the position was guided by a belief that Giles is guilty, so who cares about the other side.  But will it feel the same when the editorial board believes the defendant was innocent, but convicted on bad evidence?  They need to consider that as well.

Also, take a look at  Niki Black’s disussion of People v. Nieves-Andino, similar to Giles though the New York Court of Appeals punted rather than address the constitutional aspects of the case.