PEOPLE v. GILES
Filed 3/5/07
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. TA066706
__________________________________ )
STORY CONTINUED FROM PART I
Thus, it appears that the intent-to-silence element required by some cases evolved from the erroneous characterization of the forfeiture doctrine as the waiver by misconduct doctrine. Because a waiver is an intelligent relinquishment of a known right, the intent-to-silence element was added to establish the defendant was on notice that the declarant was a potential witness and therefore knowingly relinquished the right to cross-examine that witness. (See United States v. Houlihan, supra, 92 F.3d at pp. 1279-1280.) But, [t]he Supreme Courts recent affirmation of the essentially equitable grounds for the rule of forfeiture strongly suggests that the rules applicability does not hinge on the wrongdoers motive. (Garcia-Meza, supra, 403 F.3d at p. 370.)
Although some courts have used the terms waiver and forfeiture interchangeably, the high court, in a pre-Crawford case, has explained that they are quite different. (United States v. Olano (1993) 507 U.S. 725, 733, citing Freytag v. Commissioner (1991) 501 U.S. 868, 894-895, fn. 2 (conc. opn. of Scalia, J.) [[t]he two are really not the same.].) Waiver, the intentional relinquishment or abandonment of a known right or privilege, [citation], is merely one means by which a forfeiture may occur. Some rights may be forfeited by means short of waiver, [citations]. (Freytag v. Commissioner, supra, 501 U.S. at pp. 894-895, fn. 2 (conc. opn. of Scalia, J.), italics added.) Although courts have traditionally applied the forfeiture rule to witness tampering cases, forfeiture principles can and should logically and equitably be extended to other types of cases in which an intent-to-silence element is missing. As the Court of Appeal here stated, Forfeiture is a logical extension of the equitable principle that no person should benefit from his own wrongful acts. A defendant whose intentional criminal act renders a witness unavailable for trial benefits from his crime if he can use the witnesss unavailability to exclude damaging hearsay statements by the witness that would otherwise be admissible. This is so whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable.[1]
Here, there were no eyewitnesses to the fatal shooting; defendant and the victim were the only ones present. Defendant testified at trial and admitted shooting the victim, but claimed he had acted in self-defense. He claimed that the victim was very jealous of other women, and was a violent person who had previously shot a man, threatened people with knives, and vandalized his home and car on two separate occasions. When describing some of these prior acts, defendant repeated statements allegedly made by the victim. Defendant testified that the victim told him she had shot a man during an argument. He further testified that, during two prior aggravated assaults, the victim declared that she wanted to check that bitch on one occasion, while on the other she asserted that she wanted to kill that bitch.
In relating his version of the fatal events in this case, defendant again repeated statements allegedly made by the victim. He testified that they had had a typical argument earlier that day. The victim knew defendant was with his new girlfriend, and said she was on her way there to kill her. When she arrived, she threatened to kill both defendant and that bitch. Afraid she had something in her hand, defendant shot at her several times after she charged him. Thus, partially through the victims own alleged statements, defendant portrayed her as a violent, aggressive, foulmouthed, jealous, and volatile person.
Defendant now argues that admission of the victims extrajudicial statements to the police, which conflicted with his portrayal of the victim as the aggressor, violated his confrontation rights. Defendant should not be able to take advantage of his own wrong by using the victims statements to bolster his self-defense theory, while capitalizing on her unavailability and asserting his confrontation rights to prevent the prosecution from using her conflicting statements. A defendant cannot prefer the laws preference [for live testimony over hearsay] and profit from it . . . while repudiating that preference by creating the condition that prevents it. (Steele v. Taylor, supra, 684 F.2d at p. 1202.)
The Roberts approach to the Confrontation Clause undoubtedly made recourse to [the forfeiture by wrongdoing] doctrine less necessary, because prosecutors could show the reliability of ex parte statements more easily than they could show the defendants procurement of the witnesss absence. Crawford, in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings. (Davis, supra, 126 S.Ct. at p. 2280.) Accordingly, we conclude that, to protect the integrity of their proceedings, post-Crawford courts (including the Court of Appeal in this case) have correctly applied the forfeiture doctrine in a necessary, equitable manner. That is, courts should be able to further the truth-seeking function of the adversary process when necessary, allowing fact finders access to relevant evidence that the defendant caused not to be available through live testimony. (See Steele v. Taylor, supra, 684 F.2d at p. 1201 [the disclosure of relevant information at a public trial is a paramount interest, and any significant interference with that interest, other than by exercising a legal right to object at the trial itself, is a wrongful act].)
We must also decide whether the doctrine of forfeiture by wrongdoing applies where the alleged wrongdoing is the same as the offense for which defendant was on trial. In other words, defendant was on trial for the same wrongdoing (murder) that caused the forfeiture of his right to confront the victim. Because the two acts are the same, the courts forfeiture finding (as a predicate evidentiary matter) depends on determining that defendant committed the charged criminal act.
In the classic witness tampering cases, the defendant is not on trial for the same wrongdoing that caused the forfeiture of his confrontation right, but rather for a prior underlying crime about which the victim was about to testify. (See, e.g., United States v. Balano, supra, 618 F.2d at pp. 625-626; United States v. Carlson, supra, 547 F.2d at pp. 1352-1353.) However, even in the context of witness tampering, courts have applied forfeiture where the defendant was charged with the same homicide that rendered the witness unavailable. (See, e.g., United States v. Dhinsa, supra, 243 F.3d at pp. 642-644, 650; United States v. Emery, supra, 186 F.3d at p. 926; United States v. White, supra, 116 F.3d at pp. 909-910; United States v. Houlihan, supra, 92 F.3d at pp. 1278-1281; United States v.Rouco, supra, 765 F.2d at pp. 993-995; United States v. Thevis, supra, 665 F.2d at pp. 627-633; but see United States v. Lentz (E.D. Va. 2002) 282 F.Supp.2d 399, 426-427 [rejecting application of forfeiture rule in murder trial where murder was done to procure witnesss unavailability in divorce proceeding].)
The argument against permitting a judicial preliminary determination of forfeiture is that in ruling on the evidentiary matter, a trial court is required, in essence, to make the same determination of guilt of the charged crime as the jury. (United States v. Lentz, supra, 282 F.Supp. 2d at p. 426 [forfeiture rule violates presumption of innocence and right to jury trial].) In responding to that argument, courts have found analogous the procedures for admitting coconspirator statements against a defendant who is charged with conspiracy; the trial court makes a preliminary finding of conspiracy that is proven by a preponderance of the evidence. (See, e.g., United States v. Emery, supra, 186 F.3d at pp. 926-927; United States v. White, supra, 116 F.3d at p. 912; United States v. Houlihan, supra, 92 F.3d at p. 1280; cf. Bourjaily v. United States (1987) 483 U.S. 171, 175-176 [approval of trial courts predicate finding that conspiracy existed even when one of the underlying crimes before the jury was the existence of the same conspiracy].) The presumption of innocence and right to jury trial will not be infringed because the jury will never learn of the judges preliminary finding and will use different information and a different standard of proof to decide the defendants guilt. (Mayhew, supra, 380 F.Supp.2d at p. 968; fn. omitted.) Recognizing that the courts have generally applied the forfeiture by wrongdoing doctrine even where the alleged wrongdoing is the same as the charged offense, defendant no longer disputes that the forfeiture doctrine can apply under these circumstances. We see no reason to adopt a different rule.
Regarding the applicable standard of proof, the Court of Appeals initial opinion held that the facts supporting the application of the forfeiture by wrongdoing doctrine must be proven to a trial court by clear and convincing evidence. After the Attorney General filed a petition for rehearing in which he argued that the appropriate standard is proof by a preponderance of the evidence, the court left the issue of the appropriate burden of proof for another day on the ground there was sufficient evidence of forfeiture under either standard. We agree with the Attorney General that, because the issue is fairly included in the issues on which we granted review (Cal. Rules of Court, rule 8.516(b)(1)), we should decide it to provide guidance to the trial courts.
The majority of the lower federal courts have held that the applicable standard necessary for the prosecutor to demonstrate forfeiture by wrongdoing is by a preponderance of the evidence. (See, e.g., United States v. Cherry, supra, 217 F.3d at p. 820; United States v. Thai (2nd Cir. 1994) 29 F.3d 785, 814; United States v. Mastrangelo, supra, 693 F.2d at p. 273; Steele v. Taylor, supra, 684 F.2d at pp. 1202-1203; United States v.Balano, supra, 618 F.2d at p. 629; Mayhew, supra, 380 F.Supp.2d at p. 968; but see United States v. Thevis, supra, 665 F.2d at p. 631 [requiring clear and convincing evidence].) Many of the federal courts have found that the forfeiture finding is the functional equivalent of the predicate factual findings that a court must make in ruling on the admissibility of extrajudicial statements under the coconspirator exception, which need only be proved by a preponderance of the evidence.[2] (See e.g., United States v. Emery, supra, 186 F.3d at pp. 926-927; United States v. White, supra, 116 F.3d at p. 912; United States v. Houlihan, supra, 92 F.3d at p. 1280; Steele v. Taylor, supra, 684 F.2d at pp. 1202-1203; see also Commonwealth v. Edwards, supra, 830 N.E.2d at pp. 172-173; Commonwealth v. Morgan (2005) 69 Va.Cir. 228, 232.) One court based its decision regarding the preponderance standard on Reynolds itself. (Steele v. Taylor, supra, 684 F.2d at p. 1202, citing Reynolds, supra, 98 U.S. at p. 160 [ enough had been shown [by the government] to cast the burden of proof on him [the defendant] of showing that he had not been instrumental in concealing or keeping the witness away. ]; see West v. Louisiana, supra, 194 U.S. at p. 265 [Reynolds held that when there was some proof that an absent witness was kept away by procurement of the defendant the burden of proof was on him to show . . . that he was not instrumental in concealing or keeping the witness away, italics added].)
Some federal courts do not even require a judicial preliminary determination of forfeiture; instead they allow the hearsay statement to be admitted at trial contingent on proof that the defendant wrongfully procured the unavailability of the declarant by a preponderance of the evidence. (See, e.g., United States v. Emery, supra, 186 F.3d at p. 926; United States v. White, supra, 116 F.3d at pp. 914-915; United States v. Houlihan, supra, 92 F.3d at p. 1281, fn. 5.) Moreover, if a hearing on forfeiture is required, federal courts generally permit the prosecution to rely on the challenged hearsay evidence when proving forfeiture. (See, e.g., United States v. White, supra, 116 F.3d at p. 914 [leaving for another day the issue of whether a forfeiture finding could rest solely on hearsay]; United States v. Houlihan, supra, 92 F.3d at p. 1281; United States v. Mastrangelo, supra, 693 F.2d at p. 273; see also United States v.Emery, supra, 186 F.3d at p. 927 [inclined to doubt that wrongful procurement must be proven independently of the challenged hearsay]; Commonwealth v. Edwards, supra, 830 N.E.2d at p. 174.)[3]We thus agree that [a] standard that requires the proponent to show that it is more probable than not that the defendant procured the unavailability of the witness is constitutionally sufficient under the . . . confrontation clause[]. (Steele v. Taylor, supra, 684 F.2d at p. 1202.)[4]
The application of the rule should be subject to several limitations. First, the witness should be genuinely unavailable to testify and the unavailability for cross-examination should be caused by the defendants intentional criminal act. Second, a trial court cannot make a forfeiture finding based solely on the unavailable witnesss unconfronted testimony; there must be independent corroborative evidence that supports the forfeiture finding.
The forfeiture by wrongdoing doctrine, as adopted by us, only bars a defendants objection under the confrontation clause of the federal Constitution and does not bar statutory objections under the Evidence Code. Thus, even if it is established that a defendant has forfeited his or her right of confrontation, the contested evidence is still governed by the rules of evidence; a trial court should still determine whether an unavailable witnesss prior hearsay statement falls within a recognized hearsay exception and whether the probative value of the proffered evidence outweighs its prejudicial effect. (Evid. Code, 352.) Finally, the jury should not be advised of the trial courts underlying finding that defendant committed an intentional criminal act so that the jury will draw no inference about the ultimate issue of guilt based on the evidentiary ruling itself.
Here, the Court of Appeal correctly found that there was clear and convincing evidence that defendant procured the victims unavailability through criminal conducta criminal homicide. A fortiori, the preponderance of the evidence standard was also met. Defendant retrieved a loaded gun from inside the garage after the victim returned to the house. Preparing to fire the gun, he disengaged its safety and then shot her six times in her torso. Two of those wounds were fatal; one was consistent with her holding up her hand at the time she was shot; one was consistent with her having turned to her side when she was shot; and one was consistent with her being shot while she was lying on the ground. One of the investigating officers testified that a semiautomatic firearm such as the one used by defendant fires only once each time the trigger is pulled, supporting an inference that defendant had pulled the trigger for each shot. In contrast, the victim was not carrying a weapon when she was shot. Immediately after the shooting, defendant fled the scene and did not turn himself in to the police.
The above independent evidence, considered with the victims prior statements, supports the Court of Appeals conclusion that defendant did not shoot in self-defense, and instead committed an unlawful homicide that caused the victims unavailability to testify at trial. As noted by the Court of Appeal, the evidence supporting this [self-defense] theory was weak and it is inconceivable that any rational trier of fact would have concluded the shooting was excusable or justifiable. Thus, defendant has forfeited his confrontation clause challenge to the victims prior out-of-court statements to the police.
CONCLUSION
We conclude that the Court of Appeals judgment should be affirmed.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CORRIGAN, J.
Concurring Opinion by Werdegar, J.
I concur in the judgment of affirmance. Like the majority, I conclude the doctrine of forfeiture by wrongdoing is not confined exclusively to witness-tampering cases, in which a defendant commits malfeasance in order to procure the unavailability of a witness, but can be applied to these facts as well, where the defendants actions in procuring a witnesss unavailability were the same actions for which he stood trial.
That narrow conclusion is enough to dispose of this case. As the majority acknowledges, the evidence available independent of victim Brenda Avies statements demonstrated clearly and convincingly that defendant Dwayne Giles shot and killed her and was not acting in self-defense. (Maj. opn., ante, at p. 26.) Because of this intentional criminal misconduct, Giles forfeited his constitutional confrontation clause objection to the admission of Avies statements at trial. As the majority further correctly notes, this conclusion does not affect any statutory Evidence Code objections. (Id. at p. 25.) That should be the end of the matter.
Nevertheless, the majority proceeds to address and resolve two subsidiary questions unnecessary to this cases disposition. First, it decides whether the prosecution, in order to use the victims hearsay statements, must demonstrate the defendants wrongdoing by clear and convincing evidence or only a preponderance of the evidence, despite its implicit acknowledgement the issue is not implicated here because either standard was satisfied. Second, it decides whether and to what extent the victims challenged statements may be used in making this threshold showing of wrongdoing, despite the fact, again, the evidence available independent of Avies statements makes it unnecessary to speak to this point.
Although as a general matter I endorse the majoritys desire to offer guidance to the trial courts, here the procedural posture of the case and the substantive nature of the issues make reaching out to do so both unnecessary and unwise.
Procedurally, these issues were never addressed by either court below, not by the trial court, because Giless trial predated Crawford v. Washington (2004) 541 U.S. 36, which revised the standards for determining when the confrontation clause prohibits admission of testimonial hearsay, and not by the Court of Appeal, because it recognized, correctly, that either standard was met here. The Court of Appeal, moreover, never discussed whether it arrived at this conclusion exclusively based on, partially based on, or entirely without reliance on Avies statements. Our grant of review limited issues and focused on whether forfeiture by wrongdoing could be applied when the wrongdoing was identical to the offense for which the defendant stood trial. Given that limitation, the parties in their briefing touched only in passing on the standard of proof question and discussed the second question not at all. Thus, even were there compelling reasons to reach out and address issues unnecessary to this cases disposition, this record would provide a notably poor basis for doing so.
Were the issues at stake routine, the absence of any considered views from the parties or lower courts, in a case where the issues are immaterial to the cases disposition, would mean less. Substantively, however, they are not routine. The questions of the appropriate standard of proof and the appropriate evidentiary basis for finding forfeiture of a constitutional right are questions of constitutional dimension. Proposition 8s Truth-in-Evidence provisions require admission of evidence except to the extent existing statutory or constitutional rules or privileges require otherwise. (Cal. Const., art. I, 28, subd. (d).) Thus, to decide the subsidiary questions the majority purports to resolve, we must examine the confrontation clause of the United States Constitution, and perhaps the due process clause as well, and determine what they require.
In lieu of serious constitutional analysis, however, the majority simply notes that mostbut not alllower federal courts to consider the question have settled on a preponderance of the evidence standard, and proceeds to join in that view. (Maj. opn., ante, at pp. 23-25.) That majority federal view might well be right, but it might also be wrong, especially given that the federal cases the majority relies upon uniformly antedate the United States Supreme Courts recent reassertion of the breadth and importance of the confrontation clause in ensuring defendants their fair trials. (Crawford v. Washington, supra, 541 U.S. at pp. 68-69 [Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation];[5]see also United States v. Thevis (5th Cir. 1982) 665 F.2d 616, 631 [even pre-Crawford, holding because confrontation rights are so integral to the accuracy of the fact-finding process and the search for truth . . . , we conclude that the trial court was correct in requiring clear and convincing evidence of a waiver of this right]; People v. Geraci (N.Y. 1995) 649 N.E.2d 817, 822 [concluding clear and convincing evidence is required because forfeiture results in loss of the valued Sixth Amendment confrontation right and because of the intimate association between the right to confrontation and the accuracy of the fact-finding process].)[6]
Constitutional analysis should not be embarked on lightly and never when a cases resolution does not demand it. As then Associate Justice George once explained in like circumstances: [T]he majoritys approach is inconsistent with well-established principles of judicial restraint. In his celebrated concurring opinion in Ashwander v. Valley Authority (1936) 297 U.S. 288, 347, Justice Brandeis, in reviewing a number of settled precepts of judicial practice, observed that [t]he Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. [Citations.] California courts have long subscribed to this principle. (See, e.g., Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66 [ It is a well-established principle that this Court will not decide constitutional questions where other grounds are available and dispositive of the issues of the case. ]; People v. Barton (1963) 216 Cal.App.2d 542, 546.) (Rider v. County of San Diego (1991) 1 Cal.4th 1, 17 (conc. opn. of George, J.); see also Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 332, 342; People v. McKay (2002) 27 Cal.4th 601, 626-627 (conc. opn. of Werdegar, J.); Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230; People v. Williams (1976) 16 Cal.3d 663, 667 [[W]e do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us].)
These principles of judicial restraint apply with even greater force here, where the subsidiary constitutional questions the majority addresses are not only unnecessary to the cases disposition but not well presented on the record before us. Consequently, while I concur in the judgment, I do not join in those portions of the majoritys analysis that decide the standard of proof or the permissible evidentiary basis for showing forfeiture by wrongdoing.
Werdegar, J.
I CONCUR:
MORENO, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Giles
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Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 123 Cal. App.4th 475
Rehearing Granted
__________________________________________________________________________________
Opinion No. S129852
Date Filed: March 5, 2007
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Victoria Chavez
__________________________________________________________________________________
Attorneys for Appellant:
Marilyn G. Burkhardt, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Kristofer Jorstad, Susan D. Martynec, Joseph P. Lee and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
Nancy K. D. Lemon and Timna A. Sites for California Partnership to End Domestic Violence as Amicus Curiae on behalf of Plaintiff and Respondent.
Douglas Beloof, Margaret Garvin, Kim Montagriff, Joanna Tucker Davis; Porter, Scott, Weiberg & Delehant and Laura J. Marabito for National Crime Victim Law Institute as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Marilyn G. Burkhardt
11301 Wes Olympic Boulevard, #619
West Los Angeles, CA 90064
(310) 475-9823
Russell A. Lehman
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2280
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line Lawyers.
[1] Defendant argues that language in Davis regarding the forfeiture by wrongdoing doctrinewhen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victimssupports his claim that an intent-to-silence requirement is constitutionally compelled. (Davis, supra, 126 S.Ct. at p. 2280, italics added.) However, that language only describes the traditional form of witness tampering casesin the context of the domestic violence cases therein where the victims did not testify at trialwithout limiting the forfeiture doctrine to witness tampering cases. More important, Davis reaffirmed the equitable nature of the forfeiture by wrongdoing doctrine and declared that Crawford, in overruling Roberts, supra, 448 U.S. 56, did not destroy the ability of courts to protect the integrity of their proceedings. (Davis, supra, 126 S.Ct. at p. 2280.)
[2]Bourjaily v. United States, supra, 483 U.S. at pages 175-176, held that under the Federal Rules of Evidence, the government need only prove its threshold burden by a preponderance of the evidence when establishing the predicate facts relating to the admissibility of coconspirator statements. Although Bourjailydoes not expressly consider the standard of proof on a confrontation clause claim, the discussion relies on constitutional cases in selecting the preponderance standard (e.g., United States v. Matlock (1974) 415 U.S. 164, 177-178 [voluntariness of consent to search must be shown by preponderance of the evidence]; Lego v. Twomey (1972) 404 U.S. 477, 489 [voluntariness of confession must be demonstrated by a preponderance of the evidence]). (Bourjaily v. United States, supra, 483 U.S. at p. 176.)
[3]Davis, supra, 126 S.Ct. at page 2280, noted that federal and state courts have generally held the government to the preponderance of evidence standard to demonstrate forfeiture. Further, although noting that Commonwealth v. Edwards, supra, 830 N.E.2d at page 174, permitted the trial courts consideration of the unavailable witnesss out-of-court statements at a hearing on forfeiture, it took no position on the standards necessary to demonstrate . . . forfeiture. (Davis, supra, 126 S.Ct. p. 2280.)
[4] Defendant argues that proof of forfeiture must be established by clear and convincing evidence. He points to Evidence Code section 1350, which establishes an independent, narrow hearsay exception in serious felony cases, based on forfeiture by wrongdoing principles. An unavailable witnesss out-of-court statements is admissible when there is clear and convincing evidence that the declarants unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant. (Evid. Code, 1350, subd. (a)(1).) However, the Legislature, in establishing more stringent standards, is not the final arbiter of constitutional standards. (See Jones v. Superior Court (1970) 3 Cal.3d 734, 740.) We further note that section 1350, setting forth a higher statutory standard of proof, survives California Constitution article I, section 28, subdivision (d) (Proposition 8) because it was enacted by a two-thirds vote of the membership in each house of the Legislature. (See People v. Markham (1989) 49 Cal.3d 63.)
[5] While Crawford accepted that forfeiture by wrongdoing could, when proven, extinguish confrontation clause rights, neither it nor the United States Supreme Courts follow-up decision in Davis v. Washington have purported to resolve what showing will suffice to establish a forfeiture. (See Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266, 2280]; Crawford v. Washington, supra, 541 U.S. at p. 62.)
[6] The issue of what evidentiary basis may support a showing of forfeiture of the constitutional right to confront and cross-examine the speaker by wrongdoingMay the prosecution rely solely, or even in part, on the very unconfronted statements it seeks to admit? May the trial court, without the opportunity for confrontation, make reliability determinations concerning these statements?is likewise a constitutional question of uncertain resolution.
