GILES v. CALIFORNIA

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353 OCTOBER TERM, 2007
Syllabus
GILES v. CALIFORNIA
certiorari to the supreme court of california
No. 07–6053. Argued April 22, 2008—Decided June 25, 2008
At petitioner Giles’ murder trial, the court allowed prosecutors to intro
duce statements that the murder victim had made to a police officer
responding to a domestic-violence call. Giles was convicted. While his
appeal was pending, this Court held that the Sixth Amendment’s Con
frontation Clause gives defendants the right to cross-examine witnesses
who give testimony against them, except in cases where an exception
to the confrontation right was recognized at the founding. Crawford v.
Washington, 541 U. S. 36, 53–54. The State Court of Appeal concluded
that the Confrontation Clause permitted the trial court to admit into
evidence the unconfronted testimony of the murder victim under a doc
trine of forfeiture by wrongdoing. It concluded that Giles had forfeited
his right to confront the victim’s testimony because it found Giles had
committed the murder for which he was on trial—an intentional criminal
act that made the victim unavailable to testify. The State Supreme
Court affirmed on the same ground.
Held: The California Supreme Court’s theory of forfeiture by wrongdoing
is not an exception to the Sixth Amendment’s confrontation requirement
because it was not an exception established at the founding. Pp. 357–
373; 376–377.
(a) Common-law courts allowed the introduction of statements by an
absent witness who was “detained” or “kept away” by “means or pro
curement” of the defendant. Cases and treatises indicate that this rule
applied only when the defendant engaged in conduct designed to prevent
the witness from testifying. Pp. 358–361.
(b) The manner in which this forfeiture rule was applied makes plain
that unconfronted testimony would not be admitted without a showing
that the defendant intended to prevent a witness from testifying. In
cases where the evidence suggested that the defendant wrongfully
caused the absence of a witness, but had not done so to prevent the
witness from testifying, unconfronted testimony was excluded unless
it fell within the separate common-law exception to the confrontation
requirement for statements made by speakers who were both on the
brink of death and aware that they were dying. Pp. 361–365.
(c) Not only was California’s proposed exception to the confrontation
right plainly not an “exceptio[n] established at the time of the founding,”
Crawford, supra, at 54; it is not established in American jurisprudence

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Syllabus
since the founding. No case before 1985 applied forfeiture to admit
statements outside the context of conduct designed to prevent a witness
from testifying. The view that the exception applies only when the
defendant intends to make a witness unavailable is also supported by
modern authorities, such as Federal Rule of Evidence 804(b)(6), which
“codifies the forfeiture doctrine,” Davis v. Washington, 547 U. S. 813,
833. Pp. 366–368.
(d) The dissent’s contention that no testimony would come in at com
mon law under a forfeiture theory unless it was confronted is not sup
ported by the cases. In any event, if the dissent’s theory were true, it
would not support a broader forfeiture exception but would eliminate
the forfeiture exception entirely. Previously confronted testimony by
an unavailable witness is always admissible, wrongful procurement or
not. See Crawford, supra, at 68. Pp. 369–373.
(e) Acts of domestic violence are often intended to dissuade a victim
from resorting to outside help. A defendant’s prior abuse, or threats of
abuse, intended to dissuade a victim from resorting to outside help
would be highly relevant to determining the intent of a defendant’s sub
sequent act causing the witness’s absence, as would evidence of ongoing
criminal proceedings at which the victim would have been expected to
testify. Here, the state courts did not consider Giles’ intent, which they
found irrelevant under their interpretation of the forfeiture doctrine.
They are free to consider intent on remand. Pp. 376–377.
40 Cal. 4th 833, 152 P. 3d 433, vacated and remanded.
Scalia, J., delivered the opinion of the Court, except as to Part II–D–2.
Roberts, C. J., and Thomas and Alito, JJ., joined that opinion in full, and
Souter and Ginsburg, JJ., joined as to all but Part II–D–2. Thomas, J.,
post, p. 377, and Alito, J., post, p. 378, filed concurring opinions. Souter,
J., filed an opinion concurring in part, in which Ginsburg, J., joined, post,
p. 379. Breyer, J., filed a dissenting opinion, in which Stevens and
Kennedy, JJ., joined, post, p. 380.
Marilyn G. Burkhardt argued the cause for petitioner.
With her on the briefs were Donald B. Ayer, Meir Feder,
Samuel Estreicher, and James F. Flanagan.
Donald E. de Nicola, Deputy State Solicitor General of
California, argued the cause for respondent. With him on
the brief were Edmund G. Brown, Jr., Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Manuel
M. Medeiros, State Solicitor General, Pamela C. Hamanaka,

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Senior Assistant Attorney General, and Kristofer Jorstad
and Russell A. Lehman, Deputy Attorneys General.*
Justice Scalia delivered the opinion of the Court, except
as to Part II–D–2.
We consider whether a defendant forfeits his Sixth
Amendment right to confront a witness against him when a
judge determines that a wrongful act by the defendant made
the witness unavailable to testify at trial.
*Jeffrey A. Lamken filed a brief for the National Association of Criminal
Defense Lawyers as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of
Illinois et al. by Lisa Madigan, Attorney General of Illinois, Michael A.
Scodro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General,
and by the Attorneys General for their respective States as follows: Troy
King of Alabama, Terry Goddard of Arizona, John W. Suthers of Colorado,
Joseph R. Biden III of Delaware, Bill McCollum of Florida, Mark J. Ben
nett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana,
Tom Miller of Iowa, Stephen N. Six of Kansas, G. Steven Rowe of Maine,
Douglas F. Gansler of Maryland, Michael A. Cox of Michigan, Lori Swan
son of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath
of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada,
Kelly A. Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary
K. King of New Mexico, Roy Cooper of North Carolina, Wayne Stenehjem
of North Dakota, Marc Dann of Ohio, W. A. Drew Edmondson of Okla
homa, Hardy Myers of Oregon, Patrick C. Lynch of Rhode Island, Law
rence E. Long of South Dakota, Robert E. Cooper of Tennessee, Greg Ab
bott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont,
Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Vir
ginia, J. B. Van Hollen of Wisconsin, and Bruce A. Salzburg of Wyoming;
for the Battered Women’s Justice Project et al. by Peter A. Barile III; for
the Domestic Violence Legal Empowerment and Appeals Project et al. by
David Salmons, Jennifer K. Brown, Lynn Hecht Schafran, and Joan S.
Meier; and for the National Crime Victim Law Institute by Douglas
Beloof.
Briefs of amici curiae were filed for the National Association of Counsel
for Children et al. by Laura W. Brill, Barry Sullivan, and Bill S. Forcade;
for the National Association to Prevent Sexual Abuse of Children’s Na
tional Child Protection Training Center by Thomas J. Harbinson; and for
Richard D. Friedman by Mr. Friedman, pro se.

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356 GILES v. CALIFORNIA
Opinion of the Court
I
On September 29, 2002, petitioner Dwayne Giles shot his
ex-girlfriend, Brenda Avie, outside the garage of his grand
mother’s house. No witness saw the shooting, but Giles’
niece heard what transpired from inside the house. She
heard Giles and Avie speaking in conversational tones. Avie
then yelled “Granny” several times and a series of gunshots
sounded. Giles’ niece and grandmother ran outside and saw
Giles standing near Avie with a gun in his hand. Avie, who
had not been carrying a weapon, had been shot six times.
One wound was consistent with Avie’s holding her hand up
at the time she was shot, another was consistent with her
having turned to her side, and a third was consistent with
her having been shot while lying on the ground. Giles fled
the scene after the shooting. He was apprehended by police
about two weeks later and charged with murder.
At trial, Giles testified that he had acted in self-defense.
Giles described Avie as jealous, and said he knew that she
had once shot a man, that he had seen her threaten people
with a knife, and that she had vandalized his home and car
on prior occasions. He said that on the day of the shooting,
Avie came to his grandmother’s house and threatened to kill
him and his new girlfriend, who had been at the house ear
lier. He said that Avie had also threatened to kill his new
girlfriend when Giles and Avie spoke on the phone earlier
that day. Giles testified that after Avie threatened him at
the house, he went into the garage and retrieved a gun, took
the safety off, and started walking toward the back door of
the house. He said that Avie charged at him, and that he
was afraid she had something in her hand. According to
Giles, he closed his eyes and fired several shots, but did not
intend to kill Avie.
Prosecutors sought to introduce statements that Avie had
made to a police officer responding to a domestic-violence
report about three weeks before the shooting. Avie, who
was crying when she spoke, told the officer that Giles had

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accused her of having an affair, and that after the two began
to argue, Giles grabbed her by the shirt, lifted her off the
floor, and began to choke her. According to Avie, when she
broke free and fell to the floor, Giles punched her in the face
and head, and after she broke free again, he opened a folding
knife, held it about three feet away from her, and threatened
to kill her if he found her cheating on him. Over Giles’ ob
jection, the trial court admitted these statements into evi
dence under a provision of California law that permits admis
sion of out-of-court statements describing the infliction or
threat of physical injury on a declarant when the declarant
is unavailable to testify at trial and the prior statements are
deemed trustworthy. Cal. Evid. Code Ann. § 1370 (West
Supp. 2008).
A jury convicted Giles of first-degree murder. He ap
pealed. While his appeal was pending, this Court decided
in Crawford v. Washington, 541 U. S. 36, 53–54 (2004), that
the Confrontation Clause requires that a defendant have the
opportunity to confront the witnesses who give testimony
against him, except in cases where an exception to the con
frontation right was recognized at the time of the founding.
The California Court of Appeal held that the admission of
Avie’s unconfronted statements at Giles’ trial did not violate
the Confrontation Clause as construed by Crawford because
Crawford recognized a doctrine of forfeiture by wrongdoing.
19 Cal. Rptr. 3d 843, 847 (2004) (officially depublished). It
concluded that Giles had forfeited his right to confront Avie
because he had committed the murder for which he was on
trial, and because his intentional criminal act made Avie un
available to testify. The California Supreme Court affirmed
on the same ground. 40 Cal. 4th 833, 837, 152 P. 3d 433, 435
(2007). We granted certiorari. 552 U. S. 1136 (2008).
II
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be con

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fronted with the witnesses against him.” The Amendment
contemplates that a witness who makes testimonial state
ments admitted against a defendant will ordinarily be pres
ent at trial for cross-examination, and that if the witness is
unavailable, his prior testimony will be introduced only if
the defendant had a prior opportunity to cross-examine him.
Crawford, 541 U. S., at 68. The State does not dispute here,
and we accept without deciding, that Avie’s statements ac
cusing Giles of assault were testimonial. But it maintains
(as did the California Supreme Court) that the Sixth Amend
ment did not prohibit prosecutors from introducing the state
ments because an exception to the confrontation guarantee
permits the use of a witness’s unconfronted testimony if a
judge finds, as the judge did in this case, that the defendant
committed a wrongful act that rendered the witness unavail
able to testify at trial. We held in Crawford that the Con
frontation Clause is “most naturally read as a reference to
the right of confrontation at common law, admitting only
those exceptions established at the time of the founding.”
Id., at 54. We therefore ask whether the theory of forfeiture
by wrongdoing accepted by the California Supreme Court is
a founding-era exception to the confrontation right.
A
We have previously acknowledged that two forms of testi
monial statements were admitted at common law even
though they were unconfronted. See id., at 56, n. 6, 62.
The first of these were declarations made by a speaker who
was both on the brink of death and aware that he was dying.
See, e. g., King v. Woodcock, 1 Leach 500, 501–504, 168 Eng.
Rep. 352, 353–354 (1789); State v. Moody, 3 N. C. 31 (Super.
L. & Eq. 1798); United States v. Veitch, 28 F. Cas. 367, 367–
368 (No. 16,614) (CC DC 1803); King v. Commonwealth, 4 Va.
78, 80–81 (Gen. Ct. 1817). Avie did not make the uncon
fronted statements admitted at Giles’ trial when she was

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dying, so her statements do not fall within this historic
exception.
A second common-law doctrine, which we will refer to as
forfeiture by wrongdoing, permitted the introduction of
statements of a witness who was “detained” or “kept away”
by the “means or procurement” of the defendant. See, e. g.,
Lord Morley’s Case, 6 How. St. Tr. 769, 771 (H. L. 1666) (“de
tained”); Harrison’s Case, 12 How. St. Tr. 833, 851 (H. L.
1692) (“made him keep away”); Queen v. Scaife, 117 Q. B.
238, 242, 117 Eng. Rep. 1271, 1273 (Q. B. 1851) (“kept away”);
see also 2 W. Hawkins, Pleas of the Crown 425 (4th ed. 1762)
(hereinafter Hawkins) (same); T. Peake, Compendium of the
Law of Evidence 62 (2d ed. 1804) (“sent” away); 1 G. Gilbert,
Law of Evidence 214 (1791) (“detained and kept back from
appearing by the means and procurement of the prisoner”).
The doctrine has roots in the 1666 decision in Lord Morley’s
Case, at which judges concluded that a witness’s having been
“detained by the means or procurement of the prisoner” pro
vided a basis to read testimony previously given at a coro
ner’s inquest. 6 How. St. Tr., at 770–771. Courts and com
mentators also concluded that wrongful procurement of a
witness’s absence was among the grounds for admission of
statements made at bail and committal hearings conducted
under the Marian statutes, which directed justices of the
peace to take the statements of felony suspects and the
persons bringing the suspects before the magistrate, and to
certify those statements to the court, Crawford, supra, at
43–44; J. Langbein, Prosecuting Crime in the Renaissance
10–12, 16–20 (1974). See 2 Hawkins 429. This class of con
fronted statements was also admissible if the witness who
made them was dead or unable to travel. Ibid.
The terms used to define the scope of the forfeiture rule
suggest that the exception applied only when the defendant
engaged in conduct designed to prevent the witness from
testifying. The rule required the witness to have been

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“kept back” or “detained” by “means or procurement” of the
defendant. Although there are definitions of “procure” and
“procurement” that would merely require that a defendant
have caused the witness’s absence, other definitions would
limit the causality to one that was designed to bring about
the result “procured.” See 2 N. Webster, An American Dic
tionary of the English Language (1828) (defining “procure”
as “to contrive and effect” (emphasis added)); ibid. (defining
“procure” as “[t]o get; to gain; to obtain; as by request, loan,
effort, labor or purchase”); 12 Oxford English Dictionary 559
(2d ed. 1989) (def. I(3)) (defining “procure” as “[t]o contrive
or devise with care (an action or proceeding); to endeavour
to cause or bring about (mostly something evil) to or for a
person”). Similarly, while the term “means” could sweep in
all cases in which a defendant caused a witness to fail to
appear, it can also connote that a defendant forfeits confron
tation rights when he uses an intermediary for the purpose
of making a witness absent. See 9 id., at 516 (“[A] person
who intercedes for another or uses influence in order to bring
about a desired result”); N. Webster, An American Diction
ary of the English Language 822 (1869) (“That through
which, or by the help of which, an end is attained”).
Cases and treatises of the time indicate that a purpose
based definition of these terms governed. A number of
them said that prior testimony was admissible when a wit
ness was kept away by the defendant’s “means and contriv
ance.” See 1 J. Chitty, A Practical Treatise on the Criminal
Law 81 (1816) (“kept away by the means and contrivance of
the prisoner”); S. Phillipps, A Treatise on the Law of Evi
dence 165 (1814) (“kept out of the way by the means and
contrivance of the prisoner”); Drayton v. Wells, 10 S. C. L.
409, 411 (S. C. 1819) (“kept away by the contrivance of the
opposite party”). This phrase requires that the defendant
have schemed to bring about the absence from trial that he
“contrived.” Contrivance is commonly defined as the act of
“inventing, devising or planning,” 1 Webster, supra, at 47

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(1828), “ingeniously endeavouring the accomplishment of
anything,” “the bringing to pass by planning, scheming, or
stratagem,” or “[a]daption of means to an end; design, inten
tion,” 3 Oxford English Dictionary, supra, at 850.1
An 1858 treatise made the purpose requirement more ex
plicit still, stating that the forfeiture rule applied when a
witness “had been kept out of the way by the prisoner, or
by some one on the prisoner’s behalf, in order to prevent
him from giving evidence against him.” E. Powell, The
Practice of the Law of Evidence 166 (1858) (emphasis added).
The wrongful-procurement exception was invoked in a man
ner consistent with this definition. We are aware of no case
in which the exception was invoked although the defendant
had not engaged in conduct designed to prevent a witness
from testifying, such as offering a bribe.
B
The manner in which the rule was applied makes plain
that unconfronted testimony would not be admitted without
a showing that the defendant intended to prevent a witness
from testifying. In cases where the evidence suggested that
the defendant had caused a person to be absent, but had not
done so to prevent the person from testifying—as in the typi
cal murder case involving accusatorial statements by the vic
tim—the testimony was excluded unless it was confronted or
1 The dissent asserts that a defendant could have “contrived, i. e., de
vised or planned . . . to murder a victim” without the purpose of keeping
the victim away from trial. See post, at 392 (opinion of Breyer, J.). But
that would not be contriving to keep the witness away. The dissent fur
ther suggests that these authorities are irrelevant because “the relevant
phrase” in Lord Morley’s Case itself is “ ‘by the means or procurement’ ”
of the defendant and means “may, or may not, refer to an absence that the
defendant desired, as compared to an absence that the defendant caused.”
Post, at 392 (emphasis added). But the authorities we cited resolve this
ambiguity in favor of purpose by substituting for the “means or procure
ment” of Lord Morley’s Case either “contrivance” or “means and contriv
ance.” (Emphasis added.)

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fell within the dying-declarations exception. Prosecutors do
not appear to have even argued that the judge could admit
the unconfronted statements because the defendant com
mitted the murder for which he was on trial.
Consider King v. Woodcock. William Woodcock was ac
cused of killing his wife Silvia, who had been beaten and left
near death. A Magistrate took Silvia Woodcock’s account of
the crime, under oath, and she died about 48 hours later.
The judge stated that “[g]reat as a crime of this nature must
always appear to be, yet the inquiry into it must proceed
upon the rules of evidence.” 1 Leach, at 500, 168 Eng. Rep.,
at 352. Aside from testimony given at trial in the presence
of the prisoner, the judge said, there were “two other species
which are admitted by law: The one is the dying declaration
of a person who has received a fatal blow; the other is the
examination of a prisoner, and the depositions of the wit
nesses who may be produced against him” taken under the
Marian bail and committal statutes. Id., at 501, 168 Eng.
Rep., at 352–353 (footnote omitted). Silvia Woodcock’s
statement could not be admitted pursuant to the Marian
statutes because it was unconfronted—the defendant had not
been brought before the examining Magistrate and “the pris
oner therefore had no opportunity of contradicting the facts
it contains.” Id., at 502, 168 Eng. Rep., at 353. Thus, the
statements were admissible only if the witness “apprehended
that she was in such a state of mortality as would inevitably
oblige her soon to answer before her Maker for the truth or
falsehood of her assertions.” Id., at 503, 168 Eng. Rep., at
353–354 (footnote omitted). Depending on the account one
credits, the court either instructed the jury to consider the
statements only if Woodcock was “in fact under the appre
hension of death,” id., at 504, 168 Eng. Rep., at 354, or deter
mined for itself that Woodcock was “quietly resigned and
submitting to her fate” and admitted her statements into evi
dence, 1 E. East, Pleas of the Crown 356 (1803).

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King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791),
applied the same test to exclude unconfronted statements by
a murder victim. George Dingler was charged with killing
his wife Jane, who suffered multiple stab wounds that left
her in the hospital for 12 days before she died. The day
after the stabbing, a Magistrate took Jane Dingler’s deposi
tion—as in Woodcock, under oath—“of the facts and circum
stances which had attended the outrage committed upon
her.” 2 Leach, at 561, 168 Eng. Rep., at 383. George Din
gler’s attorney argued that the statements did not qualify as
dying declarations and were not admissible Marian examina
tions because they were not taken in the presence of the
prisoner, with the result that the defendant did not “have,
as he is entitled to have, the benefit of cross-examination.”
Id., at 562, 168 Eng. Rep., at 384. The prosecutor agreed,
but argued the deposition should still be admitted because
“it was the best evidence that the nature of the case would
afford.” Id., at 563, 168 Eng. Rep., at 384. Relying on
Woodcock, the court “refused to receive the examination into
evidence.” 2 Leach, at 563, 168 Eng. Rep., at 384.
Many other cases excluded victims’ statements when there
was insufficient evidence that the witness was aware he was
about to die. See Thomas John’s Case, 1 East 357, 358 (P. C.
1790); Welbourn’s Case, 1 East 358, 360 (P. C. 1792); United
States v. Woods, 28 F. Cas. 762, 763 (No. 16,760) (CC DC
1834); Lewis v. State, 17 Miss. 115, 120 (1847); Montgomery
v. State, 11 Ohio 424, 425–426 (1842); Nelson v. State, 26
Tenn. 542, 543 (1847); Smith v. State, 28 Tenn. 9, 23 (1848).
Courts in all these cases did not even consider admitting the
statements on the ground that the defendant’s crime was to
blame for the witness’s absence—even when the evidence
establishing that was overwhelming. The reporter in
Woodcock went out of his way to comment on the strength
of the case against the defendant: “The evidence, independ
ent of the information or declarations of the deceased, was

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of a very pressing and urgent nature against the prisoner.”
1 Leach, at 501, 168 Eng. Rep., at 352.
Similarly, in Smith v. State, supra, the evidence that the
defendant had caused the victim’s death included, but was
not limited to, the defendant’s having obtained arsenic from
a local doctor a few days before his wife became violently ill;
the defendant’s paramour testifying at trial that the defend
ant admitted to poisoning his wife; the defendant’s having
asked a physician “whether the presence of arsenic could be
discovered in the human stomach a month after death”; and,
the answer to that inquiry apparently not having been satis
factory, the defendant’s having tried to hire a person to burn
down the building containing his wife’s body. Id., at 10–11.
If the State’s reading of common law were correct, the dying
declarations in these cases and others like them would have
been admissible.
Judges and prosecutors also failed to invoke forfeiture as
a sufficient basis to admit unconfronted statements in the
cases that did apply the dying-declarations exception. This
failure, too, is striking. At a murder trial, presenting evi
dence that the defendant was responsible for the victim’s
death would have been no more difficult than putting on the
government’s case in chief. Yet prosecutors did not attempt
to obtain admission of dying declarations on wrongful
procurement-of-absence grounds before going to the often
considerable trouble of putting on evidence to show that the
crime victim had not believed he could recover. See, e. g.,
King v. Commonwealth, 4 Va., at 80–81 (three witnesses
called to testify on the point); Gibson v. Commonwealth, 4
Va. 111, 116–117 (Gen. Ct. 1817) (testimony elicited from doc
tor and witness); Anthony v. State, 19 Tenn. 265, 278–279
(1838) (doctor questioned about expected fatality of victim’s
wound and about victim’s demeanor).
The State offers another explanation for the above cases.
It argues that when a defendant committed some act of
wrongdoing that rendered a witness unavailable, he forfeited

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his right to object to the witness’s testimony on confronta
tion grounds, but not on hearsay grounds. See Brief for Re
spondent 23–24. No case or treatise that we have found,
however, suggested that a defendant who committed wrong
doing forfeited his confrontation rights but not his hearsay
rights. And the distinction would have been a surprising
one, because courts prior to the founding excluded hearsay
evidence in large part because it was unconfronted. See,
e. g., 2 Hawkins 606 (6th ed. 1787); 2 M. Bacon, A New
Abridgment of the Law 313 (1736). As the plurality said in
Dutton v. Evans, 400 U. S. 74, 86 (1970), “[i]t seems apparent
that the Sixth Amendment’s Confrontation Clause and the
evidentiary hearsay rule stem from the same roots.”
The State and the dissent note that common-law authori
ties justified the wrongful-procurement rule by invoking the
maxim that a defendant should not be permitted to benefit
from his own wrong. See, e. g., G. Gilbert, Law of Evidence
140–141 (1756) (if a witness was “detained and kept back
from appearing by the means and procurement” testimony
would be read because a defendant “shall never be admitted
to shelter himself by such evil Practices on the Witness, that
being to give him Advantage of his own Wrong”). But as
the evidence amply shows, the “wrong” and the “evil Prac
tices” to which these statements referred was conduct de
signed to prevent a witness from testifying. The absence of
a forfeiture rule covering this sort of conduct would create
an intolerable incentive for defendants to bribe, intimidate,
or even kill witnesses against them. There is nothing mys
terious about courts’ refusal to carry the rationale further.
The notion that judges may strip the defendant of a right
that the Constitution deems essential to a fair trial, on the
basis of a prior judicial assessment that the defendant is
guilty as charged, does not sit well with the right to trial by
jury. It is akin, one might say, to “dispensing with jury trial
because a defendant is obviously guilty.” Crawford, 541
U. S., at 62.

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C
Not only was the State’s proposed exception to the right
of confrontation plainly not an “exceptio[n] established at the
time of the founding,” id., at 54; it is not established in Amer
ican jurisprudence since the founding. American courts
never—prior to 1985—invoked forfeiture outside the context
of deliberate witness tampering.
This Court first addressed forfeiture in Reynolds v. United
States, 98 U. S. 145 (1879), where, after hearing testimony
that suggested the defendant had kept his wife away from
home so that she could not be subpoenaed to testify, the trial
court permitted the Government to introduce testimony of
the defendant’s wife from the defendant’s prior trial. See
id., at 148–150. On appeal, the Court held that admission of
the statements did not violate the right of the defendant to
confront witnesses at trial, because when a witness is absent
by the defendant’s “wrongful procurement,” the defendant
“is in no condition to assert that his constitutional rights
have been violated” if “their evidence is supplied in some
lawful way.” Id., at 158. Reynolds invoked broad forfeit
ure principles to explain its holding. The decision stated,
for example, that “[t]he Constitution does not guarantee
an accused person against the legitimate consequences of
his own wrongful acts,” ibid., and that the wrongful
procurement rule “has its foundation” in the principle that
no one should be permitted to take advantage of his wrong,
and is “the outgrowth of a maxim based on the principles of
common honesty,” id., at 159.
Reynolds relied on these maxims (as the common-law au
thorities had done) to be sure. But it relied on them (as the
common-law authorities had done) to admit prior testimony
in a case where the defendant had engaged in wrongful con
duct designed to prevent a witness’s testimony. The Court’s
opinion indicated that it was adopting the common-law rule.
It cited leading common-law cases—Lord Morley’s Case,

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Harrison’s Case, and Scaife—described itself as “content
with” the “long-established usage” of the forfeiture principle,
and admitted prior confronted statements under circum
stances where admissibility was open to no doubt under Lord
Morley’s Case. Reynolds, supra, at 158–159.
If the State’s rule had a historical pedigree in the common
law or even in the 1879 decision in Reynolds, one would have
expected it to be routinely invoked in murder prosecutions
like the one here, in which the victim’s prior statements in
culpated the defendant. It was never invoked in this way.
The earliest case identified by the litigants and amici curiae
which admitted unconfronted statements on a forfeiture the
ory without evidence that the defendant had acted with the
purpose of preventing the witness from testifying was de
cided in 1985. United States v. Rouco, 765 F. 2d 983 (CA11).
In 1997, this Court approved a Federal Rule of Evidence,
entitled “Forfeiture by wrongdoing,” which applies only
when the defendant “engaged or acquiesced in wrongdoing
that was intended to, and did, procure the unavailability of
the declarant as a witness.” Fed. Rule Evid. 804(b)(6). We
have described this as a rule “which codifies the forfeiture
doctrine.” Davis v. Washington, 547 U. S. 813, 833 (2006).
Every commentator we are aware of has concluded the re
quirement of intent “means that the exception applies only
if the defendant has in mind the particular purpose of mak
ing the witness unavailable.” 5 C. Mueller & L. Kirkpat
rick, Federal Evidence § 8:134, p. 235 (3d ed. 2007); 5
J. Weinstein & M. Berger, Weinstein’s Federal Evidence
§ 804.03[7][b], p. 804–32 (J. McLaughlin ed., 2d ed. 2008); 2
K. Broun, McCormick on Evidence 176 (6th ed. 2006).2 The
2 Only a single state evidentiary code appears to contain a forfeiture
rule broader than our holding in this case (and in Crawford v. Washington,
541 U. S. 36 (2004)) allow. Seven of the twelve States that recognize
wrongdoing as grounds for forfeiting objection to out-of-court statements
duplicate the language of the federal forfeiture provision that requires

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commentators come out this way because the dissent’s claim
that knowledge is sufficient to show intent is emphatically
not the modern view. See 1 W. LaFave, Substantive Crimi
nal Law § 5.2, p. 340 (2d ed. 2003).
In sum, our interpretation of the common-law forfeiture
rule is supported by (1) the most natural reading of the lan
guage used at common law; (2) the absence of common-law
cases admitting prior statements on a forfeiture theory
when the defendant had not engaged in conduct designed to
prevent a witness from testifying; (3) the common law’s uni
form exclusion of unconfronted inculpatory testimony by
murder victims (except testimony given with awareness of
impending death) in the innumerable cases in which the de
fendant was on trial for killing the victim, but was not shown
to have done so for the purpose of preventing testimony; (4) a
subsequent history in which the dissent’s broad forfeiture
theory has not been applied. The first two and the last are
highly persuasive; the third is in our view conclusive.
purpose, see Del. Rule Evid. 804(b)(6) (2001); Ky. Rule Evid. 804(b)(5)
(2004); N. D. Rule Evid. 804(b)(6) (2007); Pa. Rule Evid. 804(b)(6) (2005);
Vt. Rule Evid. 804(b)(6) (2004); see also Tenn. Rule Evid. 804(b)(6) (2003)
(identical except that it excludes mention of acquiescence); Mich. Rule
Evid. 804(b)(6) (2008) (substitutes “engaged in or encouraged” for “en
gaged or acquiesced in”). Two others require “purpose” by their terms.
Ohio Rule Evid. 804(B)(6) (2008); Cal. Evid. Code Ann. § 1350 (West Supp.
2008). Two of the three remaining forfeiture provisions require the de
fendant to have “procured” the unavailability of a witness, Haw. Rule
804(b)(7) (2007); Md. Cts. & Jud. Proc. Code Ann. § 10–901 (Lexis 2006)—
which, as we have discussed, is a term traditionally used in the forfeiture
context to require intent. Maryland’s rule has thus been described as
“requir[ing] that the judge must find that [the] wrongdoing or misconduct
was undertaken with the intent of making the witness unavailable to tes
tify.” 6A L. McLain, Maryland Evidence, State and Federal § 804(6):1,
p. 230 (West Supp. 2007–2008). These rules cast more than a little doubt
on the dissent’s assertion that the historic forfeiture rule creates intolera
ble problems of proof. The lone forfeiture exception whose text reaches
more broadly than the rule we adopt is an Oregon rule adopted in 2005.
See 2005 Ore. Laws p. 1232, ch. 458 (S. B. 287).

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D
1
The dissent evades the force of that third point by claiming
that no testimony would come in at common law based on a
forfeiture theory unless it was confronted. It explains the
exclusion of murder victims’ testimony by arguing that
wrongful procurement was understood to be a basis for ad
mission of Marian depositions—which the defendant would
have had the opportunity to confront—but not for the admis
sion of unconfronted testimony. See post, at 394.
That explanation is not supported by the cases. In Har
rison’s Case, the leading English case finding wrongful pro
curement, the witness’s statements were admitted without
regard to confrontation. An agent of the defendant had at
tempted to bribe a witness, who later disappeared under
mysterious circumstances. The prosecutor contended that
he had been “spirited, or withdrawn from us, by a gentleman
that said he came to [the witness] from the prisoner, and
desired him to be kind to the prisoner.” 12 How. St. Tr., at
851. The court allowed the witness’s prior statements be
fore the coroner to be read, id., at 852, although there was
no reason to think the defendant would have been present
at the prior examination.3
3 Wrongful procurement was also described as grounds for admitting
unconfronted testimony in Fenwick’s Case, 13 How. St. Tr. 537 (H. C. 1696),
a parliamentary attainder proceeding. Although many speakers argued
for admission of unconfronted testimony simply because Parliament was
not bound by the rules of evidence for felony cases, see Crawford, supra,
at 46, it was also argued that witness tampering could be a basis for admit
ting unconfronted statements even in common-law felony trials: “[W]here
persons do stand upon their lives, accused for crimes, if it appears to the
court that the prisoner hath, by fraudulent and indirect means, procured
a person that hath given information against him to a proper magistrate,
to withdraw himself, so that he cannot give evidence as regularly as they
used to do; in that case his information hath been read; which, I suppose,
with humble submission, is this case . . . ,” 13 How. St. Tr., at 594 (re
marks of Lovel). The dissent responds that in most circumstances in

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The reasoning of the common-law authorities reinforces
the conclusion that the wrongful-procurement rule did not
depend on prior confrontation. The judge in Harrison’s
Case, after being told that “Mr. Harrison’s agents or friends
have, since the last sessions, made or conveyed away a young
man that was a principal evidence against him,” declared
that if this were proved, “it will no way conduce to
Mr. Harrison’s advantage.” Id., at 835–836. Similarly, a
leading treatise’s justification of the use of statements from
coroner’s inquests when a witness was “detained and kept
back from appearing by the means and procurement” of the
defendant was that the defendant “shall never be admitted
to shelter himself by such evil Practices on the Witness, that
being to give him Advantage of his own Wrong.” G. Gilbert,
Law of Evidence 141 (1756). But if the defendant could
keep out unconfronted prior testimony of a wrongfully de
tained witness he would profit from “such evil Practices.”
While American courts understood the admissibility of
statements made at prior proceedings (including coroner’s
inquests like the one in Harrison’s Case) to turn on prior
opportunity for cross-examination as a general matter, see
Crawford, 541 U. S., at 47, n. 2, no such limit was applied or
expressed in early wrongful-procurement cases. In Rex v.
Barber, 1 Root 76 (Conn. Super. Ct. 1775), “[o]ne White, who
had testified before the justice and before the grand-jury
against Barber, and minutes taken of his testimony, was sent
away by one Bullock, a friend of Barber’s, and by his instiga
tion; so that he could not be had to testify before the petit
jury. The court admitted witnesses to relate what White
had before testified.” Two leading evidentiary treatises and
a Delaware case reporter cite that case for the proposition
which a witness had given information against a defendant before “ ‘a
proper magistrate,’ ” the testimony would have been confronted. Post,
at 399. Perhaps so, but the speaker was arguing that the wrongful
procurement exception applied in “this case”—Fenwick’s Case, in which
the testimony was unconfronted, see 13 How. St. Tr., at 591–592.

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that grand jury statements were admitted on a wrongful
procurement theory. See Phillipps, Treatise on Evidence, at
200, n. (a); T. Peake, Compendium of the Law of Evidence
91, n. (m) (American ed. 1824); State v. Lewis, 1 Del. Cas. 608,
609, n. 1 (Ct. Quarter Sess. 1818). (Of course the standard
practice since approximately the 17th century has been to
conduct grand jury proceedings in secret, without confronta
tion, in part so that the defendant does not learn the State’s
case in advance. S. Beale, W. Bryson, J. Felman, & M.
Elston, Grand Jury Law and Practice § 5.2 (2d ed. 2005); see
also 8 J. Wigmore, Evidence § 2360, pp. 728–735 (J. McNaugh
ton rev. ed. 1961).) 4
The Georgia Supreme Court’s articulation of the forfeiture
rule similarly suggests that it understood forfeiture to be
a basis for admitting unconfronted testimony. The court
wrote that Lord Morley’s Case established that if a witness
“who had been examined by the Crown, and was then absent,
was detained by the means or procurement of the prisoner,”
“then the examination should be read” into evidence. Wil
liams v. State, 19 Ga. 402, 403 (1856). Its rule for all cases
in which the witness “had been examined by the Crown”
carried no confrontation limit, and indeed, the court adopted
the rule from Lord Morley’s Case which involved not Marian
examinations carrying a confrontation requirement, but cor
oner’s inquests that lacked one.
The leading American case on forfeiture of the confronta
tion right by wrongful procurement was our 1879 decision in
Reynolds. That case does not set forth prior confrontation
4 Three commentators writing more than a century after the Barber
decision said, without explanation, that they understood the case to have
admitted only confronted testimony at a preliminary examination. W.
Best, Principles of the Law of Evidence 473, n. (e.) (American ed. 1883);
J. Stephen, A Digest of the Law of Evidence 161 (1902); 2 J. Bishop, New
Criminal Procedure § 1197, p. 1024 (2d ed. 1913). We know of no basis for
that understanding. The report of the case does not limit the admitted
testimony to statements that were confronted.

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as a requirement for the doctrine’s application, and begins
its historical analysis with a full description of the rule set
forth in Lord Morley’s Case, which itself contained no indica
tion that the admitted testimony must have been previously
confronted. It followed that description with a citation of
Harrison’s Case—which, like Lord Morley’s Case, applied
wrongful procurement to coroner’s inquests, not confronted
Marian examinations—saying that the rule in those cases
“seems to have been recognized as the law in England ever
since.” 98 U. S., at 158. The opinion’s description of the
forfeiture rule is likewise unconditioned by any requirement
of prior confrontation:
“The Constitution gives the accused the right to a trial
at which he should be confronted with the witnesses
against him; but if a witness is absent by his own wrong
ful procurement, he cannot complain if competent evi
dence is admitted to supply the place of that which he
kept away. . . . [The Constitution] grants him the privi
lege of being confronted with the witnesses against him;
but if he voluntarily keeps the witnesses away, he can
not insist on his privilege. If, therefore, when absent
by his procurement, their evidence is supplied in some
lawful way, he is in no condition to assert that his consti
tutional rights have been violated.” Ibid.
There is no mention in this paragraph of a need for prior
confrontation, even though if the Court believed such a limit
applied, the phrase “their evidence is supplied” would more
naturally have read “their previously confronted evidence is
supplied.” Crawford reaffirmed this understanding by cit
ing Reynolds for a forfeiture exception to the confrontation
right. 541 U. S., at 54. And what Reynolds and Crawford
described as the law became a seeming holding of this Court
in Davis, which, after finding an absent witness’s uncon
fronted statements introduced at trial to have been testimo

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nial, and after observing that “one who obtains the absence
of a witness by wrongdoing forfeits the constitutional right
to confrontation,” 547 U. S., at 833, remanded with the in
struction that “[t]he Indiana courts may (if they are asked)
determine on remand whether . . . a claim of forfeiture is
properly raised and, if so, whether it is meritorious,” id.,
at 834.
Although the case law is sparse, in light of these decisions
and the absence of even a single case declining to admit un
confronted statements of an absent witness on wrongful
procurement grounds when the defendant sought to prevent
the witness from testifying, we are not persuaded to displace
the understanding of our prior cases that wrongful procure
ment permits the admission of prior unconfronted testimony.
But the parsing of cases aside, the most obvious problem
with the dissent’s theory that the forfeiture rule applied only
to confronted testimony is that it amounts to self-immolation.
If it were true, it would destroy not only our case for a nar
row forfeiture rule, but the dissent’s case for a broader one
as well. Prior confronted statements by witnesses who are
unavailable are admissible whether or not the defendant was
responsible for their unavailability. 541 U. S., at 68. If the
forfeiture doctrine did not admit unconfronted prior testi
mony at common law, the conclusion must be, not that the
forfeiture doctrine requires no specific intent in order to ren
der unconfronted testimony available, but that unconfronted
testimony is subject to no forfeiture doctrine at all.5
5 The dissent attempts to reconcile its approach with Crawford by saying
the wrongful-procurement cases used language “broad enough” to reach
every case in which a defendant committed wrongful acts that caused the
absence of a victim, and that there was therefore an “ ‘exception’ ” “ ‘estab
lished at the time of the founding,’ ” post, at 383, reaching all such miscon
duct. But an exception to what? The dissent contends that it was not
an exception to confrontation. Were that true, it would be the end of the
Crawford inquiry.

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Opinion of Scalia, J.
2
Having destroyed its own case, the dissent issues a thinly
veiled invitation to overrule Crawford and adopt an approach
not much different from the regime of Ohio v. Roberts, 448
U. S. 56 (1980), under which the Court would create the ex
ceptions that it thinks consistent with the policies underlying
the confrontation guarantee, regardless of how that guaran
tee was historically understood. The “basic purposes and
objectives” of forfeiture doctrine, it says, require that a de
fendant who wrongfully caused the absence of a witness be
deprived of his confrontation rights, whether or not there
was any such rule applicable at common law. Post, at 384.
If we were to reason from the “basic purposes and objec
tives” of the forfeiture doctrine, we are not at all sure we
would come to the dissent’s favored result. The common
law forfeiture rule was aimed at removing the otherwise
powerful incentive for defendants to intimidate, bribe, and
kill the witnesses against them—in other words, it is
grounded in “the ability of courts to protect the integrity of
their proceedings.” Davis, supra, at 834. The boundaries
of the doctrine seem to us intelligently fixed so as to avoid a
principle repugnant to our constitutional system of trial by
jury: that those murder defendants whom the judge consid
ers guilty (after less than a full trial, mind you, and of course
before the jury has pronounced guilt) should be deprived
of fair-trial rights, lest they benefit from their judge
determined wrong.6
6 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 defend
ant under Federal Rule of Evidence 801(d)(2)(E). Bourjaily v. United
States, 483 U. S. 171 (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 (1980),
the case that Crawford overruled. In fact it did not violate the Confron
tation Clause for the quite different reason that it was not (as an incrimi

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Opinion of Scalia, J.
Since it is most certainly not the norm that trial rights can
be “forfeited” on the basis of a prior judicial determination of
guilt, the dissent must go far afield to argue even by analogy
for its forfeiture rule. See post, at 384–385 (discussing
common-law doctrine that prohibits the murderer from col
lecting insurance on the life of his victim, or an inheritance
from the victim’s estate); post, at 386 (noting that many crim
inal statutes punish a defendant regardless of his purpose).
These analogies support propositions of which we have no
doubt: States may allocate property rights as they see fit,
and a murderer can and should be punished, without regard
to his purpose, after a fair trial. But a legislature may not
“punish” a defendant for his evil acts by stripping him of the
right to have his guilt in a criminal proceeding determined
by a jury, and on the basis of evidence the Constitution
deems reliable and admissible.
The larger problem with the dissent’s argument, however,
is that the guarantee of confrontation is no guarantee at all
if it is subject to whatever exceptions courts from time to
time consider “fair.” It is not the role of courts to extrapo
late from the words of the Sixth Amendment to the values
behind it, and then to enforce its guarantees only to the ex
tent they serve (in the courts’ views) those underlying val
ues. The Sixth Amendment seeks fairness indeed—but
seeks it through very specific means (one of which is confron
tation) that were the trial rights of Englishmen. It “does
nating 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 eviden
tiary 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 ex
pansive than the exception proposed by the dissent.

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not suggest any open-ended exceptions from the confronta
tion requirement to be developed by the courts.” Crawford,
541 U. S., at 54.7
E
The dissent closes by pointing out that a forfeiture rule
which ignores Crawford would be particularly helpful to
women in abusive relationships—or at least particularly
helpful in punishing their abusers. Not as helpful as the
dissent suggests, since only testimonial statements are ex
cluded by the Confrontation Clause. Statements to friends
and neighbors about abuse and intimidation and statements
to physicians in the course of receiving treatment would be
excluded, if at all, only by hearsay rules, which are free to
adopt the dissent’s version of forfeiture by wrongdoing. In
any event, we are puzzled by the dissent’s decision to devote
its peroration to domestic-abuse cases. Is the suggestion
that we should have one Confrontation Clause (the one the
Framers adopted and Crawford described) for all other
crimes, but a special, improvised, Confrontation Clause for
those crimes that are frequently directed against women?
Domestic violence is an intolerable offense that legislatures
may choose to combat through many means—from increasing
criminal penalties to adding resources for investigation and
prosecution to funding awareness and prevention campaigns.
But for that serious crime, as for others, abridging the con
stitutional rights of criminal defendants is not in the State’s
arsenal.
7 The dissent also implies that we should not adhere to Crawford because
the confrontation guarantee limits the evidence a State may introduce
without limiting the evidence a defendant may introduce. See post, at
388–389. That is true. Just as it is true that the State cannot decline to
provide testimony harmful to its case or complain of the lack of a speedy
trial. The asymmetrical nature of the Constitution’s criminal-trial guar
antees is not an anomaly, but the intentional conferring of privileges de
signed to prevent criminal conviction of the innocent. The State is at no
risk of that.

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Thomas, J., concurring
The domestic-violence context is, however, relevant for a
separate reason. Acts of domestic violence often are in
tended 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 evi
dence 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 prose
cution—rendering her prior statements admissible under the
forfeiture doctrine. Earlier abuse, or threats of abuse, in
tended to dissuade the victim from resorting to outside help
would be highly relevant to this inquiry, as would evidence
of ongoing criminal proceedings at which the victim would
have been expected to testify. This is not, as the dissent
charges, post, at 404, nothing more than “knowledge-based
intent.” (Emphasis deleted.)
The state courts in this case did not consider the intent of
the defendant because they found that irrelevant to applica
tion of the forfeiture doctrine. This view of the law was
error, but the court is free to consider evidence of the defend
ant’s intent on remand.
* * *
We decline to approve an exception to the Confrontation
Clause unheard of at the time of the founding or for 200 years
thereafter. The judgment of the California Supreme Court
is vacated, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
Justice Thomas, concurring.
I write separately to note that I adhere to my view that
statements like those made by the victim in this case do not
implicate the Confrontation Clause. The contested evidence
is indistinguishable from the statements made during police

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378 GILES v. CALIFORNIA
Alito, J., concurring
questioning in response to the report of domestic violence in
Hammon v. Indiana, decided with Davis v. Washington, 547
U. S. 813 (2006). There, as here, the police questioning was
not “a formalized dialogue”; it was not “sufficiently formal to
resemble the Marian examinations” because “the statements
were neither Mirandized nor custodial, nor accompanied by
any similar indicia of formality”; and “there is no suggestion
that the prosecution attempted to offer [Ms. Avie’s] hearsay
evidence at trial in order to evade confrontation.” See id.,
at 840 (Thomas, J., concurring in judgment in part and dis
senting in part).
Nonetheless, in this case respondent does not argue that
the contested evidence is nontestimonial, ante, at 358; the
court below noted “no dispute” on the issue, 40 Cal. 4th 833,
841, 152 P. 3d 433, 438 (2007); and it is outside the scope of
the question presented, Brief for Petitioner i. Because the
Court’s opinion accurately reflects our Confrontation Clause
jurisprudence where the applicability of that Clause is not at
issue, I join the Court in vacating the decision below.
Justice Alito, concurring.
I join the Court’s opinion, but I write separately to make
clear that, like Justice Thomas, I am not convinced that the
out-of-court statement at issue here fell within the Confron
tation Clause in the first place. The dissent’s displeasure
with the result in this case is understandable, but I suggest
that the real problem concerns the scope of the confrontation
right. The Confrontation Clause does not apply to out-of
court statements unless it can be said that they are the
equivalent of statements made at trial by “witnesses.” U. S.
Const., Amdt. 6. It is not at all clear that Ms. Avie’s state
ment falls within that category. But the question whether
Ms. Avie’s statement falls within the scope of the Clause is
not before us, and assuming for the sake of argument that
the statement falls within the Clause, I agree with the
Court’s analysis of the doctrine of forfeiture by wrongdoing.

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Souter, J., concurring in part
Justice Souter, with whom Justice Ginsburg joins,
concurring in part.
I am convinced that the Court’s historical analysis is sound,
and I join all but Part II–D–2 of the opinion. As the Court
demonstrates, the confrontation right as understood at the
framing and ratification of the Sixth Amendment was subject
to exception on equitable grounds for an absent witness’s
prior relevant, testimonial statement, when the defendant
brought about the absence with intent to prevent testimony.
It was, and is, reasonable to place the risk of untruth in an
unconfronted, out-of-court statement on a defendant who
meant to preclude the testing that confrontation provides.
The importance of that intent in assessing the fairness of
placing the risk on the defendant is most obvious when a
defendant is prosecuted for the very act that causes the wit
ness’s absence, homicide being the extreme example. If the
victim’s prior statement were admissible solely because the
defendant kept the witness out of court by committing homi
cide, admissibility of the victim’s statement to prove guilt
would turn on finding the defendant guilty of the homicidal
act causing the absence; evidence that the defendant killed
would come in because the defendant probably killed. The
only thing saving admissibility and liability determinations
from question begging would be (in a jury case) the distinct
functions of judge and jury: judges would find by a prepon
derance of evidence that the defendant killed (and so would
admit the testimonial statement), while the jury could so find
only on proof beyond a reasonable doubt. Equity demands
something more than this near circularity before the right
to confrontation is forfeited, and more is supplied by showing
intent to prevent the witness from testifying. Cf. Davis v.
Washington, 547 U. S. 813, 833 (2006).
It is this rationale for the limit on the forfeiture exception
rather than a dispositive example from the historical record
that persuades me that the Court’s conclusion is the right
one in this case. The contrast between the Court’s and Jus

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tice Breyer’s careful examinations of the historical record
tells me that the early cases on the exception were not cali
brated finely enough to answer the narrow question here.
The historical record as revealed by the exchange simply
does not focus on what should be required for forfeiture
when the crime charged occurred in an abusive relationship
or was its culminating act; today’s understanding of domes
tic abuse had no apparent significance at the time of the
framing, and there is no early example of the forfeiture rule
operating in that circumstance.
Examining the early cases and commentary, however, re
veals two things that count in favor of the Court’s under
standing of forfeiture when the evidence shows domestic
abuse. The first is the substantial indication that the Sixth
Amendment was meant to require some degree of intent to
thwart the judicial process before thinking it reasonable to
hold the confrontation right forfeited; otherwise the right
would in practical terms boil down to a measure of reliable
hearsay, a view rejected in Crawford v. Washington, 541
U. S. 36 (2004). The second is the absence from the early
material of any reason to doubt that the element of intention
would normally be satisfied by the intent inferred on the
part of the domestic abuser in the classic abusive relation
ship, which is meant to isolate the victim from outside help,
including the aid of law enforcement and the judicial process.
If the evidence for admissibility shows a continuing relation
ship of this sort, it would make no sense to suggest that the
oppressing defendant miraculously abandoned the dynamics
of abuse the instant before he killed his victim, say, in a
fit of anger. The Court’s conclusion in Part II–E thus fits
the rationale that equity requires and the historical record
supports.
Justice Breyer, with whom Justice Stevens and Jus
tice Kennedy join, dissenting.
In Crawford v. Washington, 541 U. S. 36 (2004), we held
that the Sixth Amendment’s Confrontation Clause bars ad

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mission against a criminal defendant of an un-cross-examined
“testimonial” statement that an unavailable witness pre
viously made out of court. Id., at 68. We simultaneously
recognized an exception: that the defendant, by his own
“wrongdoing,” can forfeit “on essentially equitable grounds”
his Confrontation Clause right. Id., at 62. In Davis v.
Washington, 547 U. S. 813 (2006), we again recognized this
exception, stating that “one who obtains the absence of a
witness by wrongdoing forfeits the constitutional right to
confrontation.” Id., at 833.
This case involves a witness who, crying as she spoke, told
a police officer how her former boyfriend (now, the defend
ant) had choked her, “opened a folding knife,” and “threat
ened to kill her.” Ante, at 357 (opinion of the Court).
Three weeks later, the defendant did kill her. At his murder
trial, the defendant testified that he had acted in self-defense.
To support that assertion, he described the victim as jealous,
vindictive, aggressive, and violent. To rebut the defend
ant’s claim of self-defense and impeach his testimony, the
State introduced into evidence the witness’ earlier un-cross
examined statements (as state hearsay law permits it to do)
to help rebut the defendant’s claim of self-defense. It is im
portant to underscore that this case is premised on the as
sumption, not challenged here, that the witness’ statements
are testimonial for purposes of the Confrontation Clause.
With that understanding, we ask whether the defendant,
through his wrongdoing, has forfeited his Confrontation
Clause right. The Court concludes that he may not have
forfeited that right. In my view, however, he has.
I
Like the majority, I believe it important to recognize the
relevant history, and I start where the majority starts, with
Lord Morley’s Case, 6 How. St. Tr. 769 (H. L. 1666). In that
case, the judges of the House of Lords wrote that a coroner’s
out-of-court “examinations” of witnesses “might be read” in
court if “the witnesses . . . were dead, or unable to travel.”

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Id., at 770. Additionally, they agreed, an examination
“might be read” if the “witness who had been examined by
the coroner, and was then absent, was detained by the means
or procurement of the prisoner.” Id., at 770–771 (emphasis
added). Later cases repeated this rule and followed it, ad
mitting depositions where, e. g., “there ha[d] been evidence
given of ill practice to take [the witness] out of the way,”
Harrison’s Case, 12 How. St. Tr. 833, 868 (H. L. 1692), where
“the prisoner ha[d], by fraudulent and indirect means, pro
cured a person that hath given information against him to a
proper magistrate, to withdraw himself,” Lord Fenwick’s
Case, 13 How. St. Tr. 537, 594 (H. C. 1696), where the pris
oner “had resorted to a contrivance to keep the witness out
of the way,” Queen v. Scaife, 117 Q. B. 238, 242, 117 Eng.
Rep. 1271, 1273 (Q. B. 1851), and so forth.
Nineteenth-century American case law on the subject said
approximately the same thing. See Reynolds v. United
States, 98 U. S. 145, 158 (1879). For example, an 1819 South
Carolina case held that a witness’ prior formal examination
could be admitted because “the witness had been kept away
by the contrivance of the opposite party.” Drayton v. Wells,
10 S. C. L. 409, 411. An 1856 Georgia case, relying on Lord
Morley’s Case, held that a similar “examination should be
read” if the witness “was detained by the means or procure
ment of the prisoner.” Williams v. State, 19 Ga. 402, 403.
And in 1878, this Court held that “if a witness is absent by
[the defendant’s] own wrongful procurement, he cannot com
plain” about the admission of the witness’ prior testimonial
statement. Reynolds, supra, at 158.
Reynolds stated that, “if [the defendant] voluntarily keeps
the witnesses away, he cannot insist on” the “privilege of
being confronted with the witnesses against him,” in part
because of Lord Morley’s Case and in part because the rule
of forfeiture “has its foundation in the maxim that no one
shall be permitted to take advantage of his own wrong[,] . . .

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a maxim based on the principles of common honesty.” 98
U. S., at 158–159.
These sources make clear that “forfeiture by wrongdoing”
satisfies Crawford’s requirement that the Confrontation
Clause be “read as a reference to the right of confrontation
at common law” and that “any exception” must be “estab
lished at the time of the founding.” 541 U. S., at 54. The
remaining question concerns the precise metes and bounds
of the forfeiture by wrongdoing exception. We ask how to
apply that exception in the present case.
II
There are several strong reasons for concluding that the
forfeiture by wrongdoing exception applies here—reasons
rooted in common-law history, established principles of crim
inal law and evidence, and the need for a rule that can be
applied without creating great practical difficulties and evi
dentiary anomalies.
First, the language that courts have used in setting forth
the exception is broad enough to cover the wrongdoing at
issue in the present case (murder) and much else besides. A
witness whom a defendant murders is kept from testifying
“by the means . . . of the prisoner,” i. e., the defendant, Lord
Morley’s Case, supra, at 771; murder is indeed an “ill prac
tice” that leads to the witness’ absence, Harrison’s Case,
supra, at 868; one can fairly call a murder a “contrivance to
keep the witness out of the way,” Queen v. Scaife, supra, at
242, 117 Eng. Rep., at 1273; murder, if not a “fraudulent and
indirect means” of keeping the witness from testifying, is a
far worse, direct one, Fenwick’s Case, supra, at 594; and
when a witness is “absent” due to murder, the killer likely
brought about that absence by his “own wrongful procure
ment,” Reynolds, supra, at 158. All of the relevant English
and American cases use approximately similar language.
See, e. g., 1 G. Gilbert, Law of Evidence 214–215 (1791) (ex

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aminations are “to be read on the Trial” where it can be
proved that the witness is “kept back from appearing by the
means and procurement of the prisoner”). And I have found
no case that uses language that would not bring a murder
and a subsequent trial for murder within its scope.
Second, an examination of the forfeiture rule’s basic pur
poses and objectives indicates that the rule applies here. At
the time of the founding, a leading treatise writer described
the forfeiture rule as designed to ensure that the prisoner
“shall never be admitted to shelter himself by such evil Prac
tices on the Witness, that being to give him Advantage of
his own Wrong.” Ibid. This Court’s own leading case ex
plained the exception as finding its “foundation in the maxim
that no one shall be permitted to take advantage of his own
wrong.” Reynolds, supra, at 159. What more “evil prac
tice,” what greater “wrong,” than to murder the witness?
And what greater evidentiary “advantage” could one derive
from that wrong than thereby to prevent the witness from
testifying, e. g., preventing the witness from describing a his
tory of physical abuse that is not consistent with the defend
ant’s claim that he killed her in self-defense?
Third, related areas of the law motivated by similar equi
table principles treat forfeiture or its equivalent similarly.
The common law, for example, prohibits a life insurance ben
eficiary who murders an insured from recovering under the
policy. See, e. g., New York Mut. Life Ins. Co. v. Armstrong,
117 U. S. 591, 600 (1886) (“It would be a reproach to the juris
prudence of the country, if one could recover insurance
money payable on the death of a party whose life he had
feloniously taken”). And it forbids recovery when the bene
ficiary “feloniously kills the insured, irrespective of the pur
pose.” National Life Ins. Co. v. Hood’s Adm’r, 264 Ky. 516,
518, 94 S. W. 2d 1022, 1023 (Ct. App. 1936) (emphasis added)
(“no difference of opinion among the courts” on the matter).
Similarly, a beneficiary of a will who murders the testator

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cannot inherit under the will. See 1 W. Page, Wills § 17.19,
pp. 999–1001 (2003). And this is so “whether the crime was
committed for that very purpose or with some other feloni
ous design.” Van Alstyne v. Tuffy, 103 Misc. 455, 459, 169
N. Y. S. 173, 175 (1918); see also 1 Page, supra, § 17.19, at
1002 (“This common law doctrine applies alike whether the
devisee is guilty of murder, or of manslaughter” (footnote
omitted)); see generally H. Hart & A. Sacks, The Legal Proc
ess: Basic Problems in the Making and Application of Law
76–94 (W. Eskridge & P. Frickey eds. 1994) (discussing so
called “slayer’s rules”); Wade, Acquisition of Property by
Willfully Killing Another—A Statutory Solution, 49 Harv.
L. Rev. 715, 716 (1936) (“It must be recognized . . . that the
adoption of some means to prevent a slayer from acquiring
property as the result of the death of a man whom he has
killed is desirable”).
Fourth, under the circumstances presented by this case,
there is no difficulty demonstrating the defendant’s intent.
This is because the defendant here knew that murdering his
ex-girlfriend would keep her from testifying; and that knowl
edge is sufficient to show the intent that law ordinarily de
mands. As this Court put the matter more than a century
ago: A “ ‘man who performs an act which it is known will
produce a particular result is from our common experience
presumed to have anticipated that result and to have in
tended it.’ ” Allen v. United States, 164 U. S. 492, 496
(1896); see United States v. Aguilar, 515 U. S. 593, 613 (1995)
(Scalia, J., concurring in part and dissenting in part) (“[T]he
jury is entitled to presume that a person intends the natural
and probable consequences of his acts”); see also G. Williams,
Criminal Law § 18, p. 38 (2d ed. 1961) (“There is one situation
where a consequence is deemed to be intended though it is
not desired. This is where it is foreseen as substantially
certain”); ALI, Model Penal Code § 2.02(2)(b)(ii) (1962) (a
person acts “knowingly” if “the element involves a result of

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his conduct” and “he is aware that it is practically certain
that his conduct will cause such a result”); Restatement (Sec
ond) of Torts § 8A (1977) (“The word ‘intent’ is used
throughout . . . to denote that the actor desires to cause con
sequences of his act, or that he believes that the conse
quences are substantially certain to result from it”).
With a few criminal law exceptions not here relevant, the
law holds an individual responsible for consequences known
likely to follow just as if that individual had intended to
achieve them. A defendant, in a criminal or a civil case, for
example, cannot escape criminal or civil liability for murder
ing an airline passenger by claiming that his purpose in
blowing up the airplane was to kill only a single passenger
for her life insurance, not the others on the same flight. See
1 W. LaFave, Substantive Criminal Law § 5.2(a), p. 341 (2d
ed. 2003).
This principle applies here. Suppose that a husband, H,
knows that after he assaulted his wife, W, she gave state
ments to the police. Based on the fact that W gave state
ments to the police, H also knows that it is possible he will
be tried for assault. If H then kills W, H cannot avoid re
sponsibility for intentionally preventing W from testifying,
not even if H says he killed W because he was angry with
her and not to keep her away from the assault trial. Of
course, the trial here is not for assault; it is for murder. But
I should think that this fact, because of the nature of the
crime, would count as a stronger, not a weaker, reason for
applying the forfeiture rule. Nor should it matter that H,
at the time of the murder, may have believed an assault trial
more likely to take place than a murder trial, for W’s un
availability to testify at any future trial was a certain conse
quence of the murder. And any reasonable person would
have known it. Cf. United States v. Falstaff Brewing Corp.,
410 U. S. 526, 570, n. 22 (1973) (Marshall, J., concurring in
result) (“[P]erhaps the oldest rule of evidence—that a man
is presumed to intend the natural and probable consequences

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of his acts—is based on the common law’s preference for
objectively measurable data over subjective statements of
opinion and intent”).
The majority tries to overcome this elementary legal logic
by claiming that the “forfeiture rule” applies, not where the
defendant intends to prevent the witness from testifying, but
only where that is the defendant’s purpose, i. e., that the rule
applies only where the defendant acts from a particular mo
tive, a desire to keep the witness from trial. See ante, at
359, 360 (asserting that the terms used to describe the scope
of the forfeiture rule “suggest that the exception applied
only when the defendant engaged in conduct designed to pre
vent the witness from testifying” and that a “purpose-based
definition . . . governed”). But the law does not often turn
matters of responsibility upon motive, rather than intent.
See supra, at 385–386. And there is no reason to believe
that application of the rule of forfeiture constitutes an excep
tion to this general legal principle.
Indeed, to turn application of the forfeiture rule upon
proof of the defendant’s purpose (rather than intent), as the
majority does, creates serious practical evidentiary prob
lems. Consider H who assaults W, knows she has com
plained to the police, and then murders her. H knows that
W will be unable to testify against him at any future trial.
But who knows whether H’s knowledge played a major role,
a middling role, a minor role, or no role at all, in H’s decision
to kill W? Who knows precisely what passed through H’s
mind at the critical moment? See, e. g., State v. Romero,
2007–NMSC–013, 156 P. 3d 694, 702–703 (finding it doubtful
that evidence associated with the murder would support a
finding that the purpose of the murder was to keep the vic
tim’s earlier statements to police from the jury).
Moreover, the majority’s insistence upon a showing of pur
pose or motive cannot be squared with the exception’s basi
cally ethical objective. If H, by killing W, is able to keep
W’s testimony out of court, then he has successfully “take[n]

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advantage of his own wrong.” Reynolds, 98 U. S., at 159.
And he does so whether he killed her for the purpose of
keeping her from testifying, with certain knowledge that she
will not be able to testify, or with a belief that rises to a
reasonable level of probability. The inequity consists of his
being able to use the killing to keep out of court her state
ments against him. That inequity exists whether the de
fendant’s state of mind is purposeful, intentional (i. e., with
knowledge), or simply probabilistic.
Fifth, the majority’s approach both creates evidentiary
anomalies and aggravates existing evidentiary incongruities.
Contrast (1) the defendant who assaults his wife and subse
quently threatens her with harm if she testifies, with (2) the
defendant who assaults his wife and subsequently murders
her in a fit of rage. Under the majority’s interpretation, the
former (whose threats make clear that his purpose was to
prevent his wife from testifying) cannot benefit from his
wrong, but the latter (who has committed what is undoubt
edly the greater wrong) can. This is anomalous, particu
larly in this context where an equitable rule applies.
Now consider a trial of H for the murder of W at which H
claims self-defense. As the facts of this very case demon
strate, H may be allowed to testify at length and in damning
detail about W’s behavior—what she said as well as what she
did—both before and during the crime. See, e. g., Tr. 643–
645 (Apr. 1, 2003). H may be able to introduce some of W’s
statements (as he remembers them) under hearsay excep
tions for excited utterances or present sense impressions or
to show states of mind (here the victim’s statements were
admitted through petitioner’s testimony to show her state
of mind). W, who is dead, cannot reply. This incongruity
arises in part from the nature of hearsay and the application
of ordinary hearsay rules. But the majority would aggra
vate the incongruity by prohibiting admission of W’s out-of
court statements to the police (which contradict H’s account),
even when they too fall within a hearsay exception, simply

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because there is no evidence that H was focused on his fu
ture trial when he killed her. There is no reason to do so.
Consider also that California’s hearsay rules authorize ad
mission of the out-of-court statement of an unavailable de
clarant where the statement describes or explains the “in
fliction or threat of physical injury upon the declarant,” if the
“statement” was “made at or near the time of the infliction or
threat of physical injury.” Cal. Evid. Code Ann. § 1370
(West Supp. 2008). Where a victim’s statement is not “testi
monial,” perhaps because she made it to a nurse, the state
ment could come into evidence under this Rule. But where
the statement is made formally to a police officer, the majori
ty’s rule would keep it out. Again this incongruity arises in
part because of pre-existing confrontation-related rules.
See Davis, 547 U. S., at 831, n. 5 (“[F]ormality is indeed es
sential to testimonial utterance”). But, again, the majority
would aggravate the incongruity by prohibiting admission of
W’s out-of-court statements to the police simply because
there is no evidence that H was focused on his future trial
when he killed her. Again, there is no reason to do so.
Sixth, to deny the majority’s interpretation is not to deny
defendants evidentiary safeguards. It does, of course, in
this particular area, deny defendants the right always to
cross-examine. But the hearsay rule has always contained
exceptions that permit the admission of evidence where the
need is significant and where alternative safeguards of relia
bility exist. Those exceptions have evolved over time, see
2 K. Broun, McCormick on Evidence § 326 (6th ed. 2006) (dis
cussing the development of the modern hearsay rule); Fed.
Rule Evid. 102 (“These rules shall be construed to secure . . .
promotion of growth and development of the law of evi
dence”), often in a direction that permits admission of hear
say only where adequate alternative assurance of reliability
exists, see, e. g., Rule 807 (the “Residual Exception”). Here,
for example, the presence in court of a witness who took
the declarant’s statement permits cross-examination of that

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witness as to just what the declarant said and as to the sur
rounding circumstances, while those circumstances them
selves provide sufficient guarantees of accuracy to warrant
admission under a State’s hearsay exception. See Cal. Evid.
Code Ann. § 1370.
More importantly, to apply the forfeiture exception here
simply lowers a constitutional barrier to admission of earlier
testimonial statements; it does not require their admission.
State hearsay rules remain in place; and those rules will de
termine when, whether, and how evidence of the kind at
issue here will come into evidence. A State, for example,
may enact a forfeiture rule as one of its hearsay exceptions,
while simultaneously reading into that rule requirements
limiting its application. See ante, at 367–368, n. 2. To
lower the constitutional barrier to admission is to allow the
States to do just that, i. e., to apply their evidentiary rules
with flexibility and to revise their rules as experience sug
gests would be advisable. The majority’s rule, which re
quires exclusion, would deprive the States of this freedom
and flexibility.
III
A
The majority tries to find support for its view in 17th-,
18th-, and 19th-century law of evidence. But a review of the
cases set forth in Part I, supra, makes clear that no case
limits forfeiture to instances where the defendant’s purpose
or motivation is to keep the witness away. See supra, at
381–383. To the contrary, this Court stated in Reynolds
that the “Constitution does not guarantee an accused person
against the legitimate consequences of his own wrongful
acts.” 98 U. S., at 158 (emphasis added). The words “legit
imate consequences” do not mean “desired consequences” or
refer to purpose or motive; in fact, the words “legitimate
consequences” can encompass imputed consequences as well
as intended consequences. And this Court’s statement in

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Reynolds that the rule “has its foundation in the maxim that
no one shall be permitted to take advantage of his own
wrong” suggests that forfeiture applies where the defendant
benefits from a witness’ absence, regardless of the defend
ant’s specific purpose. Id., at 159.
Rather than limit forfeiture to instances where the defend
ant’s act has absence of the witness as its purpose, the rele
vant cases suggest that the forfeiture rule would apply
where the witness’ absence was the known consequence of
the defendant’s intentional wrongful act. Lord Morley’s
Case and numerous others upon which the forfeiture rule is
based say that a Marian deposition (i. e., a deposition taken
by a coroner or magistrate pursuant to the Marian bail and
commitment statutes) may be read to the jury if the witness
who was absent was detained “by the means or procurement
of the prisoner.” Lord Morley’s Case, 6 How. St. Tr., at 771.
The phrase “by means of ” focuses on what the defendant
did, not his motive for (or purpose in) doing it. In Diaz v.
United States, 223 U. S. 442 (1912), which followed Reynolds,
this Court used the word “by” (the witness was absent “by
the wrongful act of ” the accused), a word that suggests cau
sation, not motive or purpose. 223 U. S., at 452; see Eureka
Lake & Yuba Canal Co. v. Superior Court of Yuba Cty., 116
U. S. 410, 418 (1886). And in Motes v. United States, 178
U. S. 458, 473–474 (1900), the Court spoke of absence “with
the assent of ” the defendant, a phrase perfectly consistent
with an absence that is a consequence of, not the purpose of,
what the assenting defendant hoped to accomplish.
Petitioner’s argument that the word “procurement” im
plies purpose or motive is unpersuasive. See Brief for Peti
tioner 26–28. Although a person may “procure” a result
purposefully, a person may also “procure” a result by causing
it, as the word “procure” can, and at common law did, mean
“cause,” “bring about,” and “effect,” all words that say noth
ing about motive or purpose. 2 N. Webster, An American
Dictionary of the English Language (1828); see also 2 C.

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Richardson, New Dictionary of the English Language 1514
(1839) (defining “procure” to mean “[t]o take care for; to take
care or heed, . . . that any thing be done; to urge or endeavor,
to manage or contrive that it be done; to acquire; to obtain”).
The majority’s similar argument about the word “contriv
ance” fares no better. See ante, at 360 (citing, e. g., 1 J.
Chitty, A Practical Treatise on the Criminal Law 81 (1816)
(hereinafter Chitty) (“kept away by the means and contriv
ance of the prisoner”)). Even if a defendant had contrived,
i. e., devised or planned, to murder a victim, thereby keeping
her away, it does not mean that he did so with the purpose
of keeping her away in mind. Regardless, the relevant
phrase in Lord Morley’s Case is “by the means or procure
ment of ” the defendant. 6 How. St. Tr., at 771 (emphasis
added). And, as I have explained, an absence “by means of ”
the defendant’s actions may, or may not, refer to an absence
that the defendant desired, as compared to an absence that
the defendant caused.
The sole authority that expressly supports the majority’s
interpretation is an 1858 treatise stating that depositions
were admissible if the witness “had been kept out of the way
by the prisoner, or by some one on the prisoner’s behalf,
in order to prevent him from giving evidence against him.”
E. Powell, Practice of the Law of Evidence 166. This trea
tise was written nearly 70 years after the founding; it does
not explain the basis for this conclusion; and, above all, it
concerns a complete exception to the hearsay rule. Were
there no such limitation, all a murder victim’s hearsay state
ments, not simply the victim’s testimonial statements, could
be introduced into evidence. Here we deal only with a con
stitutional bar to the admission of testimonial statements.
And an exception from the general constitutional bar does
not automatically admit the evidence. Rather, it leaves the
State free to decide, via its own hearsay rules and hearsay
exceptions, which such statements are sufficiently reliable
to admit.

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B
Given the absence of any evidence squarely requiring pur
pose rather than intent, what is the majority to say? The
majority first tries to draw support from the absence of any
murder case in which the victim’s Marian statement was
read to the jury on the ground that the defendant had killed
the victim. See ante, at 361–364. I know of no instance in
which this Court has drawn a conclusion about the meaning
of a common-law rule solely from the absence of cases show
ing the contrary—at least not where there are other plausi
ble explanations for that absence. And there are such ex
planations here.
The most obvious reason why the majority cannot find an
instance where a court applied the rule of forfeiture at a
murder trial is that many (perhaps all) common-law courts
thought the rule of forfeiture irrelevant in such cases. In a
murder case, the relevant witness, the murder victim, was
dead; and historical legal authorities tell us that, when a wit
ness was dead, the common law admitted a Marian state
ment. See, e. g., Lord Morley’s Case, supra, at 770–777
(Marian depositions “might be read” if the witness was “dead
or unable to travel”); King v. Woodcock, 1 Leach 500, 502,
168 Eng. Rep. 352, 353 (1789) (“[I]f the deponent should die
between the time of examination and the trial of the pris
oner, [the Marian deposition] may be substituted in the room
of that viva voce testimony which the deponent, if living,
could alone have given, and is admitted of necessity as evi
dence of the fact”); J. Archbold, A Summary of the Law Rela
tive to Pleading and Evidence in Criminal Cases 85 (1822)
(where a witness was “dead,” “unable to travel,” or “kept
away by the means or procurement of the prisoner,” Marian
depositions “may be given in evidence against the prisoner”).
Because the Marian statements of a deceased witness were
admissible simply by virtue of the witness’ death, there
would have been no need to argue for their admission pursu
ant to a forfeiture rule.

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Historical authorities also tell us that a Marian statement
could not be admitted unless it was a proper Marian deposi
tion, meaning that the statement was given in the presence
of the defendant thereby providing an opportunity to cross
examine the witness. And this was the case whether the
witness’ unavailability was due to death or the “means or
procurement” of the defendant. See, e. g., ibid. (Where a
witness was “dead,” “unable to travel,” or “kept away by the
means or procurement of the prisoner” depositions could be
read but they “must have been taken in the presence of the
prisoner, so that he might have had an opportunity of cross
examining the witness” (emphasis added)); 2 W. Hawkins,
Pleas of the Crown 605–606 (6th ed. 1787) (hereinafter
Hawkins); Chitty 78–80; 2 J. Bishop, New Criminal Proce
dure §§ 1194–1195, pp. 1020–1022 (2d ed. 1913) (hereinafter
Bishop); Lord Fenwick’s Case, 13 How. St. Tr., at 602. Thus,
in a murder trial, where the witness was dead, either the
Marian statement was proper and it came into evidence with
out the forfeiture exception; or it was improper and the
forfeiture exception could not have helped it come in.
Cf. King v. Dingler, 2 Leach 561, 563, 168 Eng. Rep. 383, 384
(1791) (a top barrister of the day argued successfully that “it
is utterly impossible, unless the prisoner had been present
[at the Marian deposition], that depositions thus taken can
be read”). No wonder then that the majority cannot find a
murder case that refers directly to the forfeiture exception.
Common-law courts likely thought the forfeiture exception
irrelevant in such a case.
The majority highlights two common-law murder cases
that demonstrate this point—King v. Woodcock and King v.
Dingler. See ante, at 362–363. As the majority explains,
in each of these two cases, the defendant stood accused of
killing his wife. In each case, the victim had given an ac
count of the crime prior to her death. And in each case, the
court refused to admit the statements (statements that
might have been admitted simply by virtue of the fact that

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the witness had died) on the ground that they were not prop
erly taken Marian statements, i. e., not made in the presence
of the defendant. Because admission pursuant to the for
feiture rule also would have required the statements to have
been properly taken, there would have been no reason to
argue for their admission on that basis. Instead, in each
case, the prosecution argued that the statement be admitted
as a dying declaration. In Woodcock, depending on the ac
count, the court either instructed the jury to consider
whether the statements were made “under the apprehension
of death,” or determined for itself that they were and ad
mitted them into evidence. 1 Leach, at 504, 168 Eng. Rep.,
at 354; see 1 E. East, Pleas of the Crown 356 (1803) (re
printed 2004). In Dingler, because the Crown admitted that
the statements were not made “under apprehension of imme
diate death,” the statements were excluded. 2 Leach, at
563, 168 Eng. Rep., at 384. The forfeiture rule thus had no
place in Woodcock or Dingler, not because of the state of
mind of the defendant when he committed his crime, but
because the victim’s testimony was not a properly taken
Marian statement.
The American murder cases to which the majority refers
provide it no more support. See ante, at 363 (citing United
States v. Woods, 28 F. Cas. 762, 763 (No. 16,760) (CC DC
1834); Lewis v. State, 17 Miss. 115, 120 (1847); Montgomery
v. State, 11 Ohio 424, 425–426 (1842); Nelson v. State, 26
Tenn. 542, 543 (1847); Smith v. State, 28 Tenn. 9, 23 (1848)).
Like Woodcock and Dingler, these are dying declaration
cases. While it is true that none refers to the forfeiture
exception, it is also true that none of these cases involved a
previously given proper Marian deposition or its equivalent.
There are other explanations as well for the absence of
authority to which the majority points. The defendant’s
state of mind only arises as an issue in forfeiture cases where
the witness has made prior statements against the defendant
and where there is a possible motive for the killing other
than to prevent the witness from testifying. (Where that

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motive is certain—for example, where the defendant knows
the witness only because she has previously testified against
him—the prior statements would be admitted under the ma
jority’s purpose rule, and the question of intent would not
come up.) We can see from modern cases that this occurs
almost exclusively in the domestic violence context, where a
victim of the violence makes statements to the police and
where it is not certain whether the defendant subsequently
killed her to prevent her from testifying, to retaliate against
her for making statements, or in the course of another abu
sive incident. But 200 years ago, it might have been seen
as futile for women to hale their abusers before a Marian
magistrate where they would make such a statement. See,
e. g., State v. Rhodes, 61 N. C. 453, 459 (1868) (per curiam)
(“We will not inflict upon society the greater evil of raising
the curtain upon domestic privacy, to punish the lesser evil
of trifling violence”).
I also recognize the possibility that there are too few old
records available for us to draw firm conclusions. Indeed,
the “continuing confusion about the very nature of the law
of evidence at the end of the eighteenth century underscores
how primitive and undertheorized the subject then was.”
J. Langbein, The Origins of Adversary Criminal Trial 248
(2003).
Regardless, the first explanation—that the forfeiture doc
trine could not have helped admit an improperly taken Mar
ian deposition—provides a sufficient ground to conclude that
the majority has found nothing in the common-law murder
cases, domestic or foreign, that contradicts the traditional
legal principles supporting application of the rule of forfeit
ure here. See Williams, Criminal Law § 18, at 39 (relying on
sources at common law for the proposition that the accused
“necessarily intends that which must be the consequence of
the act” (internal quotation marks omitted)); LaFave, Sub
stantive Criminal Law § 5.2(a), at 341 (“[T]he traditional

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view is that a person who acts . . . intends a result of his
act . . . when he knows that that result is practically certain
to follow from his conduct, whatever his desire may be as to
that result”).
The majority next points to a second line of common-law
cases, cases in which a court admitted a murdered witness’
“dying declaration.” But those cases do not support the ma
jority’s conclusion. A dying declaration can come into evi
dence when it is “made in extremity” under a sense of im
pending death, “when every hope of this world is gone: when
every motive to falsehood is silenced, and the mind is induced
by the most powerful considerations to speak the truth.”
Woodcock, supra, at 502, 168 Eng. Rep., at 353; see King v.
Drummond, 1 Leach 337, 338, 168 Eng. Rep. 271, 272 (1784)
(“[T]he mind, impressed with the awful idea of approaching
dissolution, acts under a sanction equally powerful with that
which it is presumed to feel by a solemn appeal to God upon
an oath”); see also Hawkins 619, n. 10; Mattox v. United
States, 156 U. S. 237, 243–244 (1895). The majority notes
that prosecutors did not attempt to obtain admission of dying
declarations on forfeiture grounds before trying to meet
these strict “dying declaratio[n]” requirements. See ante,
at 364. This failure, it believes, supports its conclusion that
admission pursuant to the forfeiture exception required a
showing that the defendant killed the witness with the pur
pose of securing the absence of that witness at trial.
There is a simpler explanation, however, for the fact that
parties did not argue forfeiture in “dying declaration” cases.
And it is the explanation I have already mentioned. The
forfeiture exception permitted admission only of a properly
taken Marian deposition. And where death was at issue,
the forfeiture exception was irrelevant. In other words, if
the Marian deposition was proper, the rule of forfeiture was
unnecessary; if the deposition was improper, the rule of for
feiture was powerless to help. That is why we find lawyers

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in “dying declaration” cases arguing that the dying declara
tion was either a proper Marian deposition (in which case it
was admitted) or it was a “dying declaration” (in which case
it was admitted), or both. See, e. g., Dingler, 2 Leach, at
562, 168 Eng. Rep., at 383–384 (discussing the admission of
statements either “as a deposition taken pursuant to the
[Marian] statutes” or, in the alternative, “as the dying decla
ration of a party conscious of approaching dissolution”); King
v. Radbourne, 1 Leach 457, 460–461, 168 Eng. Rep. 330, 332
(1787) (same); People v. Restell, 3 Hill 289 (N. Y. 1842) (same);
see also Chitty 79–81. Under these circumstances, there
would have been little reason to add the word “forfeiture.”
For the same reason, we can find “dying declarations” ad
mitted in murder cases where no proper Marian deposition
existed, see, e. g., King v. Woodcock, 1 Leach 500, 168 Eng.
Rep. 352; 1 East, Pleas of the Crown, at 356, or in cases
involving, say, wills or paternity disputes, where Marian
statements were not at all at issue, see 5 J. Wigmore, Evi
dence § 1431, p. 277, n. 2 (J. Chadbourn rev. ed. 1974) (citing
such cases from the 18th and 19th centuries). Cf. Langbein,
supra, at 245–246, nn. 291, 292 (at common law, there existed
both oath-based and cross-examination-based rationales for
the hearsay rule, with the latter only becoming dominant
around the turn of the 19th century (citing Gallanis, The Rise
of Modern Evidence Law, 84 Iowa L. Rev. 499, 516–550
(1999))).
The upshot is that the majority fails to achieve its basic
objective. It cannot show that the common law insisted
upon a showing that a defendant’s purpose or motive in kill
ing a victim was to prevent the victim from testifying. At
the least its authority is consistent with my own view, that
the prosecution in such a case need show no more than intent
(based on knowledge) to do so. And the most the majority
might show is that the common law was not clear on the
point.

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IV
A
The majority makes three arguments in response. First,
it says that I am wrong about unconfronted statements at
common law. According to the majority, when courts found
wrongful procurement, they admitted a defendant’s state
ments without regard to whether they were confronted.
See ante, at 369–373. That being so, the majority’s argu
ment goes, one must wonder why no one argued for admissi
bility under the forfeiture rule in, say, Woodcock or Dingler.
See ante, at 362–363. The reason, the majority concludes,
is that the forfeiture rule would not have helped secure ad
mission of the (unconfronted) prior statements in those cases,
because the forfeiture rule applied only where the defendant
purposely got rid of the witness. See ante, at 361. But the
majority’s house of cards has no foundation; it is built on
what is at most common-law silence on the subject. The
cases it cites tell us next to nothing about admission of un
confronted statements.
Fenwick’s Case, see ante, at 369–370, n. 3, for example,
was a parliamentary attainder proceeding; Parliament voted
to admit unconfronted statements but it is not clear what
arguments for admission Parliament relied upon. See gen
erally 13 How. St. Tr. 537. Hence it is not clear that Parlia
ment admitted unconfronted statements pursuant to a for
feiture theory. In fact, the forfeiture rule in a felony case
was described in Fenwick’s Case as applying where the wit
ness “hath given information against [the defendant] to a
proper magistrate,” id., at 594 (remarks of Lovel), i. e., a
magistrate who normally would have had the defendant be
fore him as well.
Harrison’s Case, see ante, at 369–370, did admit an uncon
fronted statement, but it was a statement made before a cor
oner. See 12 How. St. Tr., at 852. Coroner’s statements
seem to have had special status that may sometimes have

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permitted the admission of prior unconfronted testimonial
statements despite lack of cross-examination. But, if so,
that special status failed to survive the Atlantic voyage.
See Crawford, 541 U. S., at 47, n. 2 (early American au
thorities “flatly rejected any special status for coroner
statements”).
The American case upon which the majority primarily re
lies, Rex v. Barber, 1 Root 76 (Conn. Super. Ct. 1775), see
ante, at 370, consists of three sentences that refer to “[o]ne
White, who had testified before the justice and before the
grand-jury against Barber.” 1 Root, at 76. White was
“sent away” at Barber’s “instigation” and the “court ad
mitted witnesses to relate what White had before testified.”
Ibid. I cannot tell from the case whether White’s statement
was made before a grand jury or was taken before a justice
where cross-examination would have been possible. At
least some commentators seem to think the latter. See W.
Best, The Principles of the Law of Evidence 467, 473, n. (e.)
(American ed. 1883) (listing Barber as a case “of preliminary
investigation before a magistrate” where “evidence ha[d]
been admitted, there having been a right of cross
examination”); 2 Bishop §§ 1194–1197, at 1020–1024 (explain
ing that where a witness had been “kept out of the way”
by the defendant, his prior testimony is admissible if “the
defendant had the opportunity to cross-examine the witness
against him, not otherwise,” and giving as a “[f]amiliar illus
tration” of this principle cases before a committing magis
trate including Barber (footnotes omitted)); J. Stephen, A Di
gest of the Law of Evidence 161, American Note, General
(1902) (citing Barber for the proposition that evidence at a
preliminary hearing was admissible if “the party against
whom it is offered was present”).
The majority’s final authority, Williams v. State, 19 Ga., at
403, see ante, at 371, involved the admission of an “examina
tion” taken by “the committing Magistrate.” Such examina
tions were ordinarily given in the presence of the defendant.

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See R. Greene & J. Lumpkin, Georgia Justice 99 (1835) (de
scribing procedures relevant to a magistrate’s examination
of a witness in Georgia); see also M. M’Kinney, The American
Magistrate and Civil Officer 235 (1850) (testimony of the ac
cuser and his witnesses taken by a magistrate “must be done
in the presence of the party accused, in order that he may
have the advantage of cross-examining the witnesses”).
At the same time, every Supreme Court case to apply the
forfeiture rule has done so in the context of previously
confronted testimony. See, e. g., Reynolds, 98 U. S., at 158
(admitting previously confronted statements pursuant to a
forfeiture rule); Diaz, 223 U. S., at 449 (same); Mattox, 156
U. S., at 240 (same); Motes, 178 U. S., at 470–471 (same).
Of course, modern courts have changed the ancient
common-law forfeiture rule—in my view, for the better.
They now admit unconfronted prior testimonial statements
pursuant to such a rule. See, e. g., United States v. Carlson,
547 F. 2d 1346, 1357–1360 (CA8 1976) (the earliest case to do
so); United States v. Mastrangelo, 693 F. 2d 269 (CA2 1982);
United States v. Rouco, 765 F. 2d 983 (CA11 1985); see also
Davis, 547 U. S., at 834. But, as the dates of these cases
indicate, the admission of unconfronted statements under a
forfeiture exception is a fairly recent evidentiary develop
ment. The majority evidently finds this elephant of a
change acceptable—as do I. Without it, there would be no
meaningful modern-day forfeiture exception. Why then
does the majority strain so hard at what, comparatively
speaking, is a gnat (and a nonexistent gnat at that)?
In sum, I have tried to show the weakness of the foun
dation upon which the majority erects its claim that the
common law applied the forfeiture rule only where it was
a defendant’s purpose or motive (not his intent based on
knowledge) to keep the witness away. The majority says
that “the most natural reading of the language used at com
mon law” supports its view. Ante, at 368. As I have
shown, that is not so. See supra, at 383–384. The majority

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next points to “the absence of common-law cases admitting
prior statements on a forfeiture theory” where the defendant
prevented, but did not purposely prevent, the witness from
testifying. Ante, at 368. As I have pointed out, this ab
sence proves nothing because (1) the relevant circumstances
(there has been a prior testimonial statement, the witness is
now unavailable due to defendant’s actions, and the defend
ant knows that the witness will not testify but that is not
his purpose) are likely to arise almost exclusively when the
defendant murders the witness, and (2) a forfeiture theory
was ordinarily redundant or useless in such cases. See
supra, at 393–394. The majority, describing its next argu
ment as “conclusive,” points to “innumerable cases” where
courts did not admit “unconfronted inculpatory testimony by
murder victims” against a defendant. Ante, at 368. The
majority is referring to those dying declaration cases in
which unconfronted statements were not admitted because
the witness was not sufficiently aware of his impending death
when he made them. See ante, at 363–364. But as I have
explained, the forfeiture rule would have been unhelpful
under these circumstances. See supra, at 397–398. Fi
nally, the majority points to a “subsequent history” in the
United States where questions about the defendant’s state
of mind did not begin to arise until the 1980’s. Ante, at 368.
I have explained why that history does not support its view.
See supra, at 401. Having only begun to swallow the ele
phant in the late 1970’s and early 1980’s, it makes sense that
courts would not have previously considered the gnat.
While I have set forth what I believe is the better reading
of the common-law cases, I recognize that different modern
judges might read that handful of cases differently. All the
more reason then not to reach firm conclusions about the
precise metes and bounds of a contemporary forfeiture ex
ception by trying to guess the state of mind of 18th-century
lawyers when they decided not to make a particular argu
ment, i. e., forfeiture, in a reported case. That is why, in

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Part II, supra, I have set forth other, more conclusive rea
sons in support of the way I would read the exception.
Second, the plurality objects to that aspect of the forfeit
ure rule that requires a judge to make a preliminary assess
ment of the defendant’s wrongful act in order to determine
whether the relevant statements should be admitted. See
ante, at 374–375. But any forfeiture rule requires a judge
to determine as a preliminary matter that the defendant’s
own wrongdoing caused the witness to be absent. Regard
less, preliminary judicial determinations are not, as the ma
jority puts it, “akin . . . to ‘dispensing with jury trial.’ ”
Ante, at 365 (quoting Crawford, 541 U. S., at 62). We have
previously said that courts may make preliminary findings
of this kind. For example, where a defendant is charged
with conspiracy, the judge is permitted to make an initial
finding that the conspiracy existed so as to determine
whether a statement can be admitted under the co
conspirator exception to the hearsay rule. See Bourjaily v.
United States, 483 U. S. 171, 175–176 (1987) (“The inquiry
made by a court concerned with these matters is not whether
the proponent of the evidence wins or loses his case on
the merits, but whether the evidentiary Rules have been
satisfied”). And even the plurality is forced to admit that it
is “sometimes” necessary for a “judge . . . to inquire into
guilt of the charged offense in order to make a preliminary
evidentiary ruling.” Ante, at 375, n. 6.
Third, the plurality seems to believe that an ordinary in
tent requirement, rather than a purpose or motive require
ment, would let in too much out-of-court testimonial evi
dence. See ante, at 374–376. Ordinarily a murderer would
know that his victim would not be able to testify at a murder
trial. Hence all of the victim’s prior testimonial statements
would come in at trial for use against a defendant. To insist
upon a showing of purpose rather than plain (knowledge
based) intent would limit the amount of unconfronted evi
dence that the jury might hear.

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This argument fails to account for the fact that overcoming
a constitutional objection does not guarantee admissibility of
the testimonial evidence at issue. The States will still con
trol admissibility through hearsay rules and exceptions.
And why not? What important constitutional interest is
served, say, where a prior testimonial statement of a victim
of abuse is at issue, by a constitutional rule that lets that
evidence in if the defendant killed a victim purposely to stop
her from testifying, but keeps it out if the defendant killed
her knowing she could no longer testify while acting out of
anger or revenge?
B
Even the majority appears to recognize the problem with
its “purpose” requirement, for it ends its opinion by creating
a kind of presumption that will transform purpose into
knowledge-based intent—at least where domestic violence is
at issue; and that is the area where the problem is most likely
to arise.
Justice Souter, concurring in part, says:
“[The requisite] element of intention would normally be
satisfied by the intent inferred on the part of the domes
tic abuser in the classic abusive relationship, which is
meant to isolate the victim from outside help, including
the aid of law enforcement and the judicial process. If
the evidence for admissibility shows a continuing rela
tionship of this sort, it would make no sense to suggest
that the oppressing defendant miraculously abandoned
the dynamics of abuse the instant before he killed his
victim, say, in a fit of anger.” Ante, at 380.
This seems to say that a showing of domestic abuse is suffi
cient to call into play the protection of the forfeiture rule in
a trial for murder of the domestic abuse victim. Doing so
when, in fact, the abuser may have had other matters in mind
apart from preventing the witness from testifying is in effect

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not to insist upon a showing of “purpose.” Consequently,
I agree with this formulation, though I would apply a simple
intent requirement across the board.
V
The rule of forfeiture is implicated primarily where do
mestic abuse is at issue. In such a case, a murder victim
may have previously given a testimonial statement, say, to
the police, about an abuser’s attacks; and introduction of that
statement may be at issue in a later trial for the abuser’s
subsequent murder of the victim. This is not an uncommon
occurrence. Each year, domestic violence results in more
than 1,500 deaths and more than 2 million injuries; it ac
counts for a substantial portion of all homicides; it typi
cally involves a history of repeated violence; and it is
difficult to prove in court because the victim is generally
reluctant or unable to testify. See Bureau of Justice Statis
tics, Homicide Trends in the U. S. 1976–2005, online at http://
www.ojp.usdoj.gov/ bjs/homicide/tables/relationshiptab.htm
(as visited June 23, 2008, and available in Clerk of Court’s
case file); Dept. of Health and Human Services, Centers for
Disease Control and Prevention, National Center for Injury
Prevention and Control, Costs of Intimate Partner Violence
Against Women in the United States 19 (2003); N. Websdale,
Understanding Domestic Homicide 207 (1999); Lininger,
Prosecuting Batterers after Crawford, 91 Va. L. Rev. 747,
751, 768–769 (2005).
Regardless of a defendant’s purpose, threats, further vio
lence, and ultimately murder can stop victims from testify
ing. See id., at 769 (citing finding that batterers threaten
retaliatory violence in as many as half of all cases, and 30
percent of batterers assault their victims again during the
prosecution). A constitutional evidentiary requirement
that insists upon a showing of purpose (rather than simply
intent or probabilistic knowledge) may permit the domestic

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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.
In Davis, we recognized that “domestic violence” cases are
“notoriously susceptible to intimidation or coercion of the
victim to ensure that she does not testify at trial.” 547
U. S., at 832–833. We noted the concern that “[w]hen this
occurs, the Confrontation Clause gives the criminal a wind
fall.” Id., at 833. And we replied to that concern by stat
ing that “one who obtains the absence of a witness by wrong
doing forfeits the constitutional right to confrontation.”
Ibid. To the extent that it insists upon an additional show
ing of purpose, the Court breaks the promise implicit in
those words and, in doing so, grants the defendant not
fair treatment, but a windfall. I can find no history, no
underlying purpose, no administrative consideration, and no
constitutional principle that requires this result.
Insofar as Justice Souter’s rule in effect presumes “pur
pose” based on no more than evidence of a history of domes
tic violence, I agree with it. In all other respects, however,
I must respectfully dissent.