The Brief WriterAppeals and Select Litigation

The Supreme Court recently held in Giles v. California that the California Supreme Court's theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment's Confrontation Clause because it was not an exception established at the nation's founding.

Dwayne Giles shot his girlfriend, Brenda Avie, outside the garage of his grandmother's house. He was later indicted for murder and testified at his trial that he had shot Avie in self-defense. To counter his defense, prosecutors sought to introduce statements Avie had made to a police officer responding to a domestic disturbance call three weeks before the shooting.

The trial court allowed Avie's prior statements in evidence on the basis that Giles's murder of her presented an exception to the Sixth Amendment's Confrontation Clause. The court's reasoning was that the admission of Avie's unconfronted statements did not violate the Sixth Amendment because the Supreme Court's Crawford case recognized a doctrine of forfeiture by wrongdoing.

The Supreme Court surveyed the state of the common law at the time of the adoption of the Constitution and held that the only recognized exceptions to the Sixth Amendment were dying declarations and witness statements where the defendant "detained" or "kept away" the witness from testifying at trial. The court struck down California's codified exception, but alluded that the Avie evidence, if further developed, might squeeze into an exception:

The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution - rendering her prior statements admissible under the forfeiture doctrine.

The Supreme Court recently held in Greenlaw v. United States that a court of appeals, acting on its own initiative, may not order an increase in a defendant's sentence.  The case reaffirms the proposition that federal criminal sentencing is an adversarial process.

Michael Greenlaw was convicted of various offenses and sentenced to imprisonment for 442 months.  He appealed his sentence, urging that it was unreasonably long.  After rejecting his arguments, the Eighth Circuit Court of Appeals determined, without a government cross-appeal, that the applicable law required a prison sentence 15 years longer than originally imposed.  The court of appeals consequently vacated Greenlaw's sentence and ordered the trial court to add 15 years to his 442 month sentence.

The Supreme Court held that, even though the trial court had erred, the court of appeals could not increase Greenlaw's sentence absent a cross-appeal by the government.  The court stated reiterated the general rule that "[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief."  Consequently, the appellate court could not hand unrequested relief to benefit the government.  Thus a defendant who appeals his sentence and does not face a cross-appeal can proceed anticipating that the appellate court cannot enlarge his sentence.