The rights of the accused after killing the accuser

The Supreme Court is due to decide that question in a Los Angeles case that has alarmed advocates for victims of domestic violence. They fear that the justices, determined to protect the fair-trial rights of defendants, are in danger of creating an incentive to kill.

The case of Giles vs. California began six years ago when Dwayne Giles shot and killed Brenda Avie after a brief quarrel at his house in South Central Los Angeles. He testified in his own defense and "portrayed her as a violent, aggressive, foul-mouthed, jealous and volatile person," according to the state court. The jury convicted him of first-degree murder.

In his appeal, he says the trial violated his right to confront his accuser in court: Because she was dead, she was not available to testify. According to testimony from a police officer who had responded to a domestic disturbance four weeks before Avie's death, Avie told the police officer Giles had threatened to kill her.

The Giles case is the third in four years before the Supreme Court that tests whether out-of-court statements such as a police officer's report can be used as evidence in a trial when the witness does not testify and is not available for cross-examination.

In two rulings, Justice Antonin Scalia set down a firm rule barring use of such evidence from absent witnesses. He cited the 6th Amendment, which says in part, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

Two years ago, Scalia spoke for an 8-1 majority that overturned an Indiana man's conviction on charges of battering his wife because prosecutors had relied on her statement to the police on the night of the incident. She had refused to testify at his trial. Enforcing the confrontation rule may "give the criminal a windfall," Scalia acknowledged, and "have the effect of allowing the guilty to go free."

Now the court must decide whether a killer may go free in a case where the witness is not just missing, but dead. During the oral argument in April in the Giles case, several justices, including Scalia, said they were reluctant to relax the confrontation rule unless it could be shown that the defendant killed the witness specifically to silence her.