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High court strengthens right to confront accusers

The case involved a California man who killed his ex-girlfriend after she complained to police.

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"Each year, domestic violence results in more than 1,500 deaths and more than 2 million injuries; it accounts for a substantial portion of all homicides; it typically involves a history of repeated violence; and it is difficult to prove in court because the victim is generally reluctant or unable to testify," Justice Breyer wrote in his dissent.

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"Regardless of a defendant's purpose, threats, further violence, and ultimately murder, can stop victims from testifying," Breyer wrote.

He added: "A constitutional evidentiary requirement that insists upon a showing of purpose (rather than simply intent or probabilistic knowledge) may permit the domestic partner who made the threats, caused the violence, or even murdered the victim to avoid conviction for earlier crimes by taking advantage of later ones."

Breyer's concerns were echoed by domestic violence experts. "We have real concern that today's [ruling] will make it less likely that victims of domestic violence will seek help from police, and more difficult to get justice from the courts," said Esta Soler, president of the Family Violence Prevention Fund. "We recognize the need to protect the rights of the accused, but there is also an urgent imperative to make it possible for prosecutions to succeed when victims have been murdered and thus cannot testify – and be cross examined – in court."

The Sixth Amendment confrontation issue arose in the murder trial of Dwayne Giles, who shot and killed his former girlfriend, Brenda Avie.

Three weeks before her murder, Ms. Avie called police to report that Mr. Giles was an abusive boyfriend who had choked her, punched her, and threatened to kill her if he ever caught her being unfaithful.

At trial, prosecutors called a police officer to testify about Avie's domestic abuse allegations.

Lawyers for Giles objected, saying there would be no way to cross-examine Avie's allegations since she was dead.

Prosecutors countered that Avie was unavailable for cross-examination because Giles, himself, made her unavailable by killing her. They said criminals should not be able to profit from their crimes. By his criminal actions, Giles had forfeited his Sixth Amendment right to confront Avie, they said.

Lawyers for Giles argued that Avie's allegations should only be admitted as evidence if there was proof that Giles shot and killed her specifically to prevent her from testifying at the trial. Short of evidence of witness tampering, they said, Avie's prior statements were too unreliable to be admitted as evidence.

The trial judge disagreed and allowed the police officer to testify. Giles was convicted and sentenced to 50 years to life in prison. The ruling was upheld on appeal by the California Supreme Court.

In vacating and remanding the case for a new trial, Scalia said the lower courts must consider Giles's intent before ruling on whether he forfeited his confrontation clause rights.

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