I’ve always been interested in ethics; from academic ethics to law ethics, the idea of an unanswerable struggle towards what is right and fair is very intriguing. A couple of weeks ago, I wrote about cultural ethics from an anthropological perspective, and this week I want to write again on a question of ethics. Unfortunately, the realm into which I will be looking, that of law, is not my own personal expertise, and so this may end up as only a list of questions that I cannot answer. I will state straightforwardly — I do not mean to suggest that I have any expert knowledge of law. I only wish to pursue my interest of ethics and explore this particular topic. This issue of ethics comes from a California murder trial: the trial of Dwayne Giles, who was charged with shooting and killing his girlfriend, Brenda Avie. Though Giles pleaded self-defense — he had testified that Avie had been abusive, and that he thought that she had a gun — a jury of his peers found him guilty, sentencing him to 50 years to life in prison. One of the prosecution’s key pieces of evidence was a domestic-abuse charge filed by Avie three weeks before she was murdered. Giles was never officially prosecuted for domestic-abuse. The prosecution used this evidence to show that Giles had a previous history of domestic abuse, and was therefore capable of violence. This is where the trial gets a bit hairy. The Sixth Amendment of the United States Constitution states, among other things, that the defendant has a right to confront the witness against him. This means that the witness can be cross-examined in a court of law, making their testimony legally viable. Brenda Avie, the person that charged Dwayne Giles, could not show up in court to be cross-examined about the domestic abuse charge. She was dead. Still, the domestic abuse charge was used as evidence in the murder case, but the case was sent to the California Supreme Court, who found in favor of the prosecution. The evidence was permissible, and Giles was found guilty of murder. The case is now on its way to the United States Supreme Court for closer analysis. So then, the question is not whether this case broke the Sixth Amendment, because in my mind it clearly did, but instead, how far does the Sixth Amendment cover? What if the witness/accuser is dead, as in the Giles case? The Constitution says nothing of this, so, of course, if you are one to take a constitutionally literalist perspective, this is already a done deal: the Sixth Amendment was broken and that is that. But what do we come to if we try to think beyond that literal reading of the constitution? What would the effects of stretching the Sixth Amendment be? Let’s begin by looking at this particular case. Say that, perhaps, the domestic-abuse charge had not been allowed as evidence in the trial. The jury would not see Giles as a violent person, and perhaps they would also not see him as capable of committing a crime such a murder, and perhaps they would believe his self-defense story, finding him not guilty. That’s a lot of “perhaps,” but it is certainly not hard to believe that the prosecution would have a harder time convicting Giles without this piece of evidence. Whether that is for better or for worse cannot be known, as it is only between Giles and Avie. The real question is over the issue of “forfeiture by wrongdoing,” which is the idea that a person can give up their rights given in the confrontation clause of the Sixth Amendment, by, well, doing something wrong. Unfortunately, that is as far as I can define it because that is as far as anyone has defined it as of yet. Giles, who claimed he did not kill Avie to suppress the evidence of the domestic-abuse charge, was still considered to fall within the “forfeiture by wrongdoing” category. He claimed that he did not fall in this category for this reason. Then the question becomes, will the Supreme Court tighten the Sixth Amendment rights, putting an end to “forfeiture by wrongdoing,” or at least constrict it to a point that it is near impossible to use? There are some consequences of this, as well. In cases of child abuse, the idea of “forfeiture by wrongdoing” can be used if the person charged with abuse tries to coerce the child into not testifying. If the Supreme Court shuts down “forfeiture by wrongdoing,” then this type of coercion will be tougher to enforce. Of course, all of this is up for debate, and I don’t have an answer. I’m not even sure where I stand on the issue. I am certainly not a constitutional literalist, but I do have my skepticism towards bending too many of the rules set forth therein. The issue of the Sixth Amendment that is exemplified here in the Giles case really gets down to the point-how much leeway should be used when interpreting the Constitution?