Unauthorized Transfer, Take 3: Justice Scalia’s Giles Opinion & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Justice Scalia: I had thought that the commonlaw rule is that you have to have rendered the…intentionally rendered thewitness unavailable with regard to the particular trial that’s before thecourt.

Not rendering the witness unavailable for someother litigation.

Mr. Burkhardt: That was–

Justice Scalia: Do you know of any case whereit was some other litigation that–

Mr. Burkhardt: –No.

Justice Scalia: –I didn’t think so.

Mr. Burkhardt: No.

That is the common law. 

Exchange between Justice Scalia and petitioner’s attorney Marilyn Burkhardt during oral argument in Giles v. California.

Based on this exchange, you might think that Justice Scalia, who wrote the plurality opinion in Giles, believes that forfeiture by wrongdoing is simply a witness tampering rule and would not support the transferred intent doctrine of forfeiture by wrongdoing applied in the prosecution of Drew Peterson.

But the Justice’s opinion reveals something quite different. Here’s footnote 6 of Justice Scalia’s opinion:

The dissent identifies one circumstance—and only one—in which a court may determine the outcome of a case before it goes to the jury: A judge may determine the existence of a conspiracy in order to make incriminating statements of co-conspirators admissible against the defendant under Federal Rule of Evidence 801(d)(2)(E). Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), held that admission of the evidence did not violate the Confrontation Clause because it “falls within a firmly rooted hearsay exception”—the test under Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the case that Crawford overruled. In fact it did not violate the Confrontation Clause for the quite different reason that it was not (as an incriminating statement in furtherance of the conspiracy would probably never be) testimonial. The co-conspirator hearsay rule does not pertain to a constitutional right and is in fact quite unusual.  

We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent.

Yes, Justice Scalia said what he said during oral argument, but…how can we read this footnote as anything else than an endorsement of the transferred intent doctrine of forfeiture by wrongdoing. Justice Scalia is clearly saying that when a defendant kills a witness to prevent him from testifying at Trial A (e.g., a robbery trial), the doctrine of forfeiture by wrongdoing might apply to allow the prosecution to admit the witness’s statements at Trial B (the defendant’s trial for murdering witness).

Moreover, I think that Justice Scalia’s reasoning might actually make some sense, contrary to my prior post on the issue. Why? Well, I’m tapping out an essay on the issue that I hope to have finished by early next week. 

-CM