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A defendant's right to confront accusers: How far does it extend?

The Supreme Court's answer could affect some murder, domestic-abuse, and child-molestation cases.

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Prosecutors responded that since it was Giles who made Avie unavailable to testify by murdering her, he should not be permitted to benefit from his crime. They argued that by killing Avie, he forfeited his Sixth Amendment confrontation right.

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The California Supreme Court agreed with the prosecutors.

In their brief to the US Supreme Court, lawyers for Giles say that, if upheld, the California decision would unravel the high court's 2004 landmark opinion that strengthened the protections of the confrontation clause.

It isn't enough that a defendant caused the unavailability of a witness at trial, Giles's lawyers say. Giles had to specifically target the victim as part of a witness-tampering scheme to prevent her testimony at trial, they say.

Since Giles did not shoot Avie to silence her, the lawyers say, his confrontation rights must remain intact.

"There are, to be sure, costs to the kind of criminal process envisioned by the Framers," Giles lawyer Marilyn Burkhardt writes in her brief. "Requiring live, in-court testimony may at times make it harder for prosecutors to win close cases. But the Sixth Amendment embodies a near absolute policy against the use of testimonial statements in the absence of an opportunity for confrontation."

Ms. Burkhardt adds: "The very purpose of the confrontation clause is to prevent the state from influencing the jury through evidence that is constitutionally unreliable because it has not been tested by cross-examination."

Lawyers with the California Attorney General's Office are urging the high court to embrace a different approach. "When a defendant has murdered the witness, he may not still insist on his 'right' to cross-examine her at his trial," writes Deputy State Solicitor General Donald DeNicola in his brief. "It makes no difference whether his motive for killing her was to make her unavailable to testify against him in court."

Mr. DeNicola adds: "It would damage the integrity of the criminal justice system to allow the killer to exclude his victim's testimony in his murder prosecution. The loss of the victim's evidence subverts the truth-finding mission of the courts."

These distinctions become even more crucial in child-abuse cases, according to Victor Vieth, director of the National Child Protection Training Center in Winona, Minn.

The vast majority of child-molestation cases end with a guilty plea without any need for the child to testify in court. But a significant number of very young child victims from ages 3 to 5 are unwilling or unable to testify against their abusers, Mr. Vieth says.

Rather than watch a pedophile walk free, prosecutors have adopted special tactics to explore whether the abuser conveyed threats or messages designed to discourage the child from revealing the abuse to others.

"It may be direct – 'If you talk, I'll kill your dog or beat up Mom' – or be more broadly stated – 'Hey, you will go to foster care and I go to jail; bad things will happen to the family if you talk about it,' " Vieth says.

If the child is unable to testify, then prosecutors can ask the trial judge to rule that the pedophile forfeited his confrontation-clause rights by conveying such threats or messages. In that case, an earlier statement by the child about the abuse recorded by investigators could be admitted as evidence and presented to the jury.

But there is a problem with this approach. It will depend on how expansively or narrowly the Supreme Court views a defendant's confrontation rights, Vieth says.

"A lot of times when those messages are conveyed [by an abuser], it isn't with the intent that the child won't testify. It is with the intent that they never talk about it so there will never be an investigation, there will never be any embarrassment in the family," Vieth says.

If the Supreme Court requires proof of intent to subvert courtroom testimony, such earlier threats may become useless to prosecutors, he says.

"It will mean that some child-sex offenders will walk," Vieth says. "There is no doubt. Clearly some will walk."

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