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Trustee abuses

2009-10-30T05:37:00.000-07:00

What do I do if the trustee of my trust is not acting in my interest?

Trustees have a duty of care at common law to act in the best interests of the Beneficiaries of the trust. If they breach this duty of care they can be held liable in negligence, for their neglect of their duties. You often will need to consult a lawyer about this if you want to see if you have a chance of succeeding in your claim.

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H1B, LCA and Green Card Questions Answered

2009-10-24T07:09:00.000-07:00

H1B, LCAs and Green Cards can be very confusing areas to deal with when you want to establish yourself in a new country. It can be highly disruptive to your career and local place of residence when you have problems with these legal items. It is crucial to establish effective legal advice at a reasonable price with a Just Answer expert to prevent yourself from wasting time or at worst being deported.

Changing Employer and what it means to your H1B

Got a problem with your H1B and changing employers? Is there around a months gap between projects at your current and new employer? If I put the exact data about a Company or employer, will there be any problem? There are many ins and outs when it comes to immigration law and employment.

Your Questions Answered: To get all your questions answered simply enter your question in the box above

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Changing Employers effect on H1B visa, green card and LCA

2009-10-24T06:51:00.000-07:00

Background to H1B Question:
I am currently working in a company with H1B visa and my green card LCA is in process. Recently my company has been acquired by another big company. My questions are related to my H1B and green card processing.

Questions:

I will become the employee of a new company that has acquired my old company. Do I need to transfer my H1B to the new company or does it need to be just amended?
My previous company has filed for LCA. What will be the status of my LCA as it relates to my Green Card?

Answer: To find out the answer simply complete the form above

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Lawyer.com Review of Lawyer.com

2009-10-24T02:48:00.000-07:00

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Lawyer.com is really only a feeder site designed to draw advertising revenue based on click through. It is still a useful resource for finding clicks through to other sites quickly, but there is not an enormous amount of valuable content immediately available on the site. For this reason customers have not engaged with the site sufficiently to generate a lot of customer opinion on the site.

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Martidale.com Review for Online Lawyers of Martidale.com

2009-10-24T02:22:00.000-07:00

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Beginning with its powerful lawyer search engine, Martindale.com provides an array of resources for private-practice lawyers, in-house counsel, legal support personnel, and law students.
• Lawyer Locator The centerpiece of the site is the Lawyer Locator, which provides instant access to the entire Martindale-Hubbell Legal Network. Users can search over one million lawyers and law firms in more than 160 countries by a variety of criteria — including name, geographic location, practice area, firm size, languages and more.
•Martindale-Hubbell Connected Martindale-Hubbell Connected is largest and only global online community designed specifically for legal professionals. It enables lawyers to quickly connect, network, communicate and collaborate with trusted and authenticated colleagues. Because of Martindale-Hubbell’s rich heritage with the legal community, this networking site offers over 50 million possible connections to the legal community!
•Search Legal Topics Free access to the complete text of user-generated Legal Articles in our database and an opportunity to receive free newsletters featuring articles in an industry or practice area.
•Diversity Profiles With its embracement of diversity, corporate America is increasingly expecting its law firms to share similar values. Martindale-Hubbell Diversity Profiles showcase a firm's commitment to diversity with descriptions of goals and recruiting plans on martindale.com® accessible to clients, prospective clients and employees, as well as students.
•Career Center The one-stop employment resource to help attorneys, lawyers, paralegals, law school students and legal professionals find legal jobs in local areas. Employers looking to hire legal professionals can post career opportunities on Martindale-Hubbell Career Center and are guaranteed unparalleled visibility to attorneys, paralegals and other active and passive legal job seekers. In addition, the resume database allows access to unique resumes of attorneys, paralegals, law school students and other legal professionals.
•Professional Resources Including unique content for corporate counsel, information on law schools and Bar associations, Continuing Legal Education opportunities, and more.
•Experts & Services Users have access to a free, searchable database of over 100,000 expert witnesses, process servers, court reporters and other legal market service providers.

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Lawyers.com Review for Online Lawyers

2009-10-24T02:20:00.000-07:00

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Re-launched and re-invigorated in 2008, Lawyers.com was designed to generate high quality business leads to lawyers as well as be the legal source that provides consumers and small businesses with the information they need to find the right lawyer.
Lawyers.com is designed specifically for individuals and small businesses and provides:
•Accurate and reliable profiles of 1 million lawyers and firms worldwide.
•A wealth of information to help users better understand the law, make more informed personal legal choices and identify high quality legal representation.
•Helpful tips on how to select an attorney, prepare for meeting an attorney and work with an attorney.
•An interactive discussion community of individuals and lawyers covering hundreds of legal topics.
•Consumer friendly explanations of major areas of law, articles on current legal topics, links to legal resources on the web, a glossary of 10,000 legal terms, and more.

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findlaw.com Review of Find Law

2009-10-24T02:06:00.000-07:00

Findlaw.com is one of the most popular sites for legal information on the internet. There are now a number of reviews available about the site and what its users think of it. It is a good resource for U.S. Supreme Court decisions, Federal and State rules of law, codes, etc. Here are what some of its users say about it.

Comment 1:

I have found most of what I needed through http://FindLaw.com, so I wanted to give it a Yelp! Shout Out and let others know what an extremely useful research tool it is as they are layman friendly. ;^P Anyone can use it.

For instance, you want to know your legal rights with regard to housing discrimination, landlord tenant rights, employee discrimination, or pretty much any subject you can think of; I'm sure you'd find it here, and if they don't have it, they'll give you suggestions to other links that may be helpful to what you are looking for. This is a great resource; as well, it can also give you referrals to attorneys who specialize in certain practice areas.

So if you're contemplating a law suit and just wanting to know some general things about your civil rights, etc., http://FindLaw.com may be a useful tool in your decision making. I highly recommend you give http://FindLaw.com a peek and see what they are about.

Thanks http://FindLaw.com ~ you saved me just in the nick of time.

Comment 2:

Elite '09
42
596
Mary T.
Sunnyvale, CA
3/19/2008
http://Findlaw.com is a great and free alternative to Lexis and Westlaw. There are limitations, though, such as unannotated caselaw and codes. But it's free so you can't really complain about that. Lexis and Westlaw charge an arm and leg, which most solo attorneys and pro se patrons (those representing themselves in court) cannot afford. If you can't afford L or W, and can't make it to your nearest public law library, then http://Findlaw.com is a wonderful resource.

People thought this was:Useful (1)Cool (3)
Add owner comment BookmarkSend to a FriendLink to This Review

Comment 3:

Jamie E.
San Jose, CA
7/1/2008
Not a substitute for legal counsel, but an excellent resource!!!

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Problem house mate

2009-10-03T00:51:00.001-07:00

Q: If I am on the lease with my housemate and they do a runner am I liable?

No generally, the landlord must deal separately with each tenant according to the terms of the lease.

Brief Guide to debt recovery

2009-09-30T06:15:00.000-07:00

Pre Action Letters

The first step is to send a letter to your debtor threatening proceedings. This should be accompanied by a copy of the statement of account showing the sum due. The letter can be sent by fax or post or even delivered by hand as required.

If the debtor is a Limited Company, the debt exceeds £750.00 and it is not disputed, the letter can threaten winding up proceedings (rather than threatening to sue in the High Court or County Court). Companies are, in our experience, more likely to respond quickly to a threat of winding up.

Telephone Chasing of Debts

Once a pre-action letter has been sent by us, you can telephone the debtor on your behalf. The reasons for doing this are:

1) You can verify that the debtor is still trading and has not moved address.

2) You can check that we have the correct details for the debtor in case we need to take legal proceedings on your behalf.

3) You can filter out cases where there is a genuine dispute about the debt or where litigation may not be the best way to resolve the claim.

4) Telephone collection is a highly cost effective way of recovering debts. Slow payers tend to pay when they receive a telephone call from Lawyers.

Information Gathering

We also have access to information sources which indicate whether the debtor is subject to bankruptcy or winding up proceedings. Why waste money suing a debtor who is already insolvent? We never cease to be surprised at the number of creditors who have spent hundreds of pounds suing a debtor who is already in liquidation or bankrupt!

We can also check Land Registry records to see whether land is owned by the debtor. Experience indicates that a debtor who owns his own house is more likely to pay than a tenant. We never issue proceedings without discussing a strategy for recovery of your debt with you first. Gathering information before taking the decision to sue is an essential part of the process of formulating that strategy. It ensures that your debt is recovered cost effectively. Where the costs and the risk of litigation outweigh the potential benefit, we will not hesitate to advise you to consider writing off the debt if it is appropriate to do so. Our advice is always commercially driven.

Suing in the Courts

Proceedings are commenced by issuing a Claim Form. Interest on your debt can be claimed at the statutory rate of 8% currently (you may be entitled to claim a higher rate if you have special contract terms or if the Late Payment of Commercial Debts (Interest) Act applies). You will have to pay a Court fee when the Claim Form is issued.

If the debtor pays the debt when they receive the Claim Form, they must also pay your legal costs. We do not charge you anything for issuing the Claim if the costs are paid by the debtor at this stage.

If we advise you that the Defence is very unlikely to succeed, we may suggest that you apply for Summary judgment. This avoids the need for your attendance at Court. The Court can grant judgment based on documentary evidence alone if there is no triable Defence.

If a Claim is defended, we will undertake all the necessary preparation for a Court hearing or negotiate a settlement as appropriate.

Enforcement of Judgments

If you have sued in the Court and obtained judgment, you will have a range of options open to you to enforce your judgment. (These options will have been discussed with you by us before proceedings commenced).

You can instruct a Bailiff or Sheriff to remove goods that belong to the debtor by what is known as a Writ or Warrant of Execution. (Please note though that the tools of trade of the debtor are protected and that goods on hire purchase cannot be seized).

You can obtain a Charging Order on any land, which belongs to the debtor. This means that you become a secured creditor and are likely ultimately to be paid providing there is sufficient equity in the property when it is sold (if the debtor does not pay before that point in time).

You can obtain a Third Party Debt Order This enables you to claim against a Third Party who owes money to the debtor. This could be a trade debtor or, more usually, the bank of the debtor (if the bank holds a credit balance for the debtor).

As a final resort, you can obtain an Order for Oral Examination of your debtor to find out more about his financial circumstances. This requires him to attend Court and give evidence under cross-examination about his financial circumstances. In practice, the system does not work very effectively and there can be substantial delays before the debtor is obliged to attend Court. We have our own in-house Financial Questionnaires, which we forward to debtors for completion and this is often a more appropriate procedure to use where the debtor is genuinely in difficult financial circumstances but wishes to agree terms with his creditors.

Insolvency Proceedings

In appropriate cases, perhaps winding up or bankruptcy proceedings are the most appropriate method of recovering the debt. While the costs are higher, the potential for early payment in often greater. The threat of being put out of business altogether is often more effective than simply suing in the Courts.

A debtor who is in financial difficulties may well cease trading in a matter of days or weeks. The use of insolvency procedures may result in your company being paid while other creditors are left to write off their debts.

If the debtor is an individual, it is necessary to serve a Statutory Demand first and allow 21 days for payment. In the case of limited companies, a letter giving a few working days notice is sufficient if you have already demanded payment in writing.

Proceedings are commenced by presenting a Petition. The case is listed for hearing and the Petition is then served on the debtor. In the case of limited companies, the Petition has to be advertised

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Essential Guide to Wills and Estates

2009-09-23T03:43:00.000-07:00

What is a Will?

A Will is a document signed in the presence of two witnesses and which the Supreme Court recognises as your wishes regarding the distribution of your assets after you have died. A valid Will can be made when you are 18 years of age.

Your assets can include money, property, shares, insurance policies, furniture, paintings, personal effects etc. All the assets of a deceased person are described as their ‘estate’. The people who benefit from your Will are your ‘beneficiaries’.

Who can help me make a Will?

You can make a Will without any legal help, but you will need to know all the legal requirements to make a valid Will and also the correct wording to minimise the risk of a challenge to your Will. A do-it-yourself Will Kit is not recommended.

Solicitors and Trustee Companies can assist you with making a Will. Whether you use a solicitor or a trustee company is your decision. Using a solicitor or a trustee company to assist with arranging your Will can make things so much easier. They can also give advice on minimising tax depending on the way your Will is arranged. This is especially important when you are considering making a bequest to a not-for-profit organisation such as the MS Society of Western Australia. This solves the problem of keeping your Will in a safe place.

Why do I need a Will?

By making a valid Will, it ensures that your assets will be left to the people you love and care for, together with those you wish to help.

If you do not have a valid Will, the court determines that you have died ‘intestate’. It then appoints an administrator who distributes your assets according to a specific legal formula.

Remember to keep your will up

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Court Room Antics

2009-08-20T22:50:00.001-07:00

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Too Drunk for a Breathlyser

2009-08-20T22:48:00.001-07:00

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The Soup Gavel Bargain

2009-08-20T22:47:00.000-07:00

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Post your Legal Questions as Comments! Free

2009-05-25T10:51:00.000-07:00

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We are starting up a new tradition here at Lawyer on the Web, because we are trying to gage the types of problems which people are experiencing with the legal system and find answers, we would like you to post any of your questions here. Occasionally probono lawyers will post their replies here to help you with your egal problems. However, is you want to get a little more serious about getting an answer to the question, post it to just answer above.

Do you need a lawyer?

2009-05-22T00:14:00.000-07:00

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There are some obvious situations when you need to hire a lawyer, like when you're arrested or charged with a crime. However, lawyers can offer services in all kinds of situations. Although many people think that it is possible to resolve your legal issue without the help of an expensive lawyer, there are some major pitfalls with this approach. Having a lawyer can increase the efficiency of dealing with the problem and free you up to do the things that are more important to you.

Step 1: "What do I stand to loose or gain?"

When your money or freedom are on the line, you should not think twice before hiring a lawyer. A parking ticket is a legal issue, but paying the fine or even attending a local court hearing does not require the services of an attorney. However, if, for example, you have a large number of unpaid parking tickets and you are now at risk of arrest, you would want a lawyer who can act professionally to save you money or even defend your freedom.

It doesn't matter if there is a recession or a period of economic growth, individuals and businesses always seek legal services and rely on advice from lawyers in order to understand and protect their legal rights. Lawyers assist with activities as diverse as estate planning, business negotiations and navigating the ever growing of maze of regulation. Having consulted an experienced, competent attorney can also bring peace of mind with the knowledge that important undertakings to do with tax and estate planning, wills and trusts, business deals and all other legal matters have been dealt with in a professional and thorough manner.

Step 2: What do I need to think about before I hire a lawyer?

Keep mind the increasingly popular litigation alternatives such as mediation or arbitration, also known as alternative dispute resolution (ADR). Although these processes may also involve lawyers, they are recognised as offering alternatives which can much cheaper, faster, less complicated and stressful than traditional litigious legal process.

Step 3: When should I go to a lawyer?

In almost any legal matter, there will be deadlines within which you will need to act and there will almost always need to be time for a lawyer to consult with you, collect information and evidence or important documents, correspond with other parties involved in the matter which needs to be resolved and the courts or administrative bodies dealing with the matter. For these reasons, it is imperative that you act fast. Some examples of the deadlines involved may be that, if you've been injured in an accident, there are time limits on your right to file a lawsuit. These are called "statutes of limitation" and are different in different states. As a general rule, if you sit on your rights, you could lose them. So it is better to act fast.

Step 4: What do I want out of this?

Obviously, if you are being sued or threatened with jail, your objectives will be clear. However, if you feel you were wrongfully terminated from a job, you may want to be reinstated or you may want a payout or other form of compensation. In a family law situation you may want custody over children or a divorce or an AVO. If you clearly understand you objectives before you start, you are much more likely to achieve them. You will also need to know whether your chance of achieving your objective is high or low. Although it is sometimes difficult to see the immediate value of this, the process of case evaluation which a lawyer can undertake with you is one of the most valuable because it can save you from entering litigation without merit or from foregoing legal action which could have yielded you significant benefits from the realisation of your rights.

Step 5: Do I need a specialist - What type?

Many lawyers have a specialty are, some are also generalists. You need to choose one that will represent you effectively at all levels.

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Can a court ordered Custody Arrangement be changed?

2009-04-22T18:03:00.000-07:00

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If a custody agreement has been reached and approved by a court, then it can be altered. However, there would have to be some interaction with the court in order to make this alteration. Because of the age of this order, there would certainly be a good case for getting it reviewed. In terms of reducing legal expense for you, you may wish to try applying for legal aid, or possible entering into a no-win, no fee arrangement with your legal representative. I can refer you to the Victorian legal aid service if you like.

If it is possible to obtain the consent of the other party to the parenting order (this is the new name for a custody order) then the alterations are much easier, quicker, simpler and cheaper. However, if it is going to be impossible to obtain the consent of the other party, it is still possible, but you not be able to claim that the application is by consent. If you are worried that there are actual acts of abuse being committed against your daughter, then it may be a matter for the police. You may also want to contact the Victorian department of children, youth and families, there information about how to respond to child abuse here:

http://www.cyf.vic.gov.au/child_protection/abuse

What is the General Skilled Migration Program?

2009-04-22T18:01:00.001-07:00

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General Skilled Migration Program (GSM) which assesses applicants based on their qualifications, work experience and language ability to satisfy Australian Immigration requirements. Candidates must meet The Basic Requirements for an Australia Skilled Visa include:

Age - you must be under 45 when you apply;

English language - you should have sufficient ability in the English language to work in Australia (at least at a vocational level);

Qualifications - you must have post-secondary qualifications and your skills must be assessed by the relevant assessing authority as suitable for your nominated occupation;

Nominated occupation - when you apply you nominate a skilled occupation, which fits your skills and qualifications. Your nominated occupation must be found on the Skilled Occupations List; As a nurse, you should have no problems with this, because nursing staff are very much in demand in the Australian economy at the moment. It attracts 60 points from the SID list. You can find the exact type of nurse on the Skills in Demand list here:

http://www.immi.gov.au/allforms/pdf/1121i.pdf

Recent work experience - the period of work experience required will vary depending on the number of points you may be granted for your nominated occupation;

Australian qualification exemption - you do not need to meet the work experience requirement if you have completed an Australian qualification less than 6 months before lodging your visa application; and

Skills assessment - before you apply, you must have your skills assessed by the Australian assessing authority designated to assess your nominated occupation.

Health assessment - you should be of reasonably good health and all applicants must have their health assessed by a panel doctor and undergo a medical examination.

Character assessment - you should be of good character and this too will be assessed. As long as there is no substantial criminal record or history of imprisonment, this should not be an issue.

The skilled visa class requires the points test outlined here: http://www.visabureau.com/australia/immigration-points-test.aspx#ausworkexperience

It may be possible to apply for an skilled (independent) visa but you need 20 more points on the points test to qualify for an independent visa as opposed to a sponsored one. You should read through the aspects of the points test to see if you will be able to claim the additional 20 points, perhaps because of your work experience in Regional Australia. However, because of your relatively short existing period of work experience, this may be difficult to achieve. If you can get at least one year of work experience, that will make your application much stronger.

You can begin an application online here: http://www.immi.gov.au/e_visa/

What is the relevant legislation for Social Security Fraud?

2009-04-22T17:59:00.001-07:00

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The relevant legislation which allows the prosecution to occur is the Social Security (Administration) Act 1999 - ss 216 and 217. I have attached them below for you to read. Usually, the time limit for the recovery of a civil debt is 6 years.

SOCIAL SECURITY (ADMINISTRATION) ACT 1999 - SECT 216
Payment obtained through fraud etc.

(1) A person contravenes this subsection if:

(a) the person obtains:

(i) payment of a social security payment under the social security law; or

(ii) payment of an instalment of a social security payment under the social security law; and

(b) the person does so:

(i) by means of impersonation; or

(ii) by means of a fraudulent device.

(2) For the purposes of an offence against section 217 that relates to subsection (1) of this section, strict liability applies to the following elements of the offence:

(a) the element that a payment is a social security payment under the social security law;

(b) the element that an instalment is an instalment of a social security payment under the social security law.

(3) A person contravenes this subsection if:

(a) the person makes a statement; and

(b) the statement is false or misleading; and

(c) the person is reckless as to whether the statement is false or misleading; and

(d) as a result the person obtains:

(i) payment of a social security payment under the social security law; or

(ii) payment of an instalment of a social security payment under the social security law.

(4) For the purposes of an offence against section 217 that relates to subsection (3) of this section, strict liability applies to the following elements of the offence:

(a) the element that a payment is a social security payment under the social security law;

(b) the element that an instalment is an instalment of a social security payment under the social security law.

SOCIAL SECURITY (ADMINISTRATION) ACT 1999 - SECT 217

Penalty for contravention of Division 2

A person who contravenes a provision of Division 2 is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 12 months.

What is the legislation in AUstralia Governing Domestic Violence?

2009-04-22T17:57:00.001-07:00

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Legislation governing Domestic Violence is different in each state of Australia. In Victoria, it is the Family Violence Protection Act 2008. In NSW, it is largely governed by the following acts:

The Crimes Act 1900, in particular Part 15A which deals with Apprehended Violence Orders and The Children and Young Persons (Care and Protection) Act 1998.In Queensland, it is governed by the Domestic and Family Violence Protection Act 1989.There is some legislation at Commonwealth Level but it does not deal with the topic entirley. The Family Law Act in a Commonwealth Legislation.

What do I do if I have been dudded in a contract?

2009-04-12T04:30:00.000-07:00

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There are some contracts which can be ruled to be voidable (it grants a choice to the disaffected party to void the contract) where there has been an instance of 'unconscionability' as per Section 2-302 of the Unifrom Commercial Code which prevents the enforcement of contracts which are grossly unfair to one side of the agreement to the point where it could be said the consideration (exchange of fair value) for the contract is non-existent. There is also a concept of undue influence which prevents the enforcement of contracts where one side has an unfair advantage in terms of bargaining power or influence over the other party to the exetent that the contract cannot be considered to be a fair transaction where both parties understood the implications of their actions. Parent/child relationships are classic instances of undue influence.

I am an artist how do I register copyright?

2009-04-12T04:28:00.000-07:00

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The process for registering copyright is quite simple. If you are the original creator or the artworks, then it is quite easy to claim copyright over the works. There are defintie benefits to registering a copyright, which is a relatively cheap and easy thing to do. Check that the works comply with the requirements found in these forms:

FORMVA http://www.copyright.gov/forms/formvai.pdf
FORMCON http://www.copyright.gov/forms/formcon.pdf

Then send the completed forms with a $45 payment to "Register of Copyrights also include nonreturnable copy(ies) of the material to be registered. You send it to this address:

Library of Congress
Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000

You still have some rights to claim copyright when it is not registered, however registering copyright just gives a much better set of legal rights if there is any dispute over the works. AN example is that usually the maximum period of unregistered copyright protection is the life of the author plus 70 years, where as it is indefinite where there is registration. Ultimately though, this is your decision. You can certainly still include the paintings as part of the assets of the trust whether it is registered or not for copyright. I think that these would be calssified as authorised copies of the paintings. If you deem these works to be authorised copies of the work which you are undertaking using a statement in the trust document, there should be no problem with this.

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How can I establish a living trust?

2009-04-12T04:25:00.000-07:00

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The process for establishing a living trust is to that an individual transfers title of his assets from himself as grantor, to a trustee of the trust (often the trustee and grantor are the same person). The trustee is to administer the trust for the benefit of himself and at least one other person. Depending on the size of the trust, it may be advisable to use a corporate trustee such as a bank, which can act in perpetuity, where an individual cannot.

Work and Holiday Visa (Subclass 462)

2009-04-11T21:23:00.000-07:00

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Can I get into Australia for a working holdiay with a criminal record?

When you want to go on a working holiday in Australia, you need to apply for a Work and Holiday Visa (Subclass 462). The temporary working visa has the character requirement which states that if you have a 'substantial criminal record' you cannot be allowed entry into the country. The definition of a 'substantial criminal record' is found in Section 501 of the Migration Act 1958(Cth). I have attached some notes about the character test below. Usually, if an offense has been committed where the punishment is 12 months or more a substantial criminal record would exist.

There are other requirements as well. Ask a Just Answer expert above to get the right advice about it.

Is is possible to object to evidence of prior conviction?

2009-04-10T16:10:00.000-07:00

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In general, prior conviction as evidence in a court proceeding, it is possible to object to the introduction of prior convictions as evidence on the basis of relevance. There is some case law which indicates that this type of evidence is inadmissible. The key part of the case law which established this principle is:

Hollington v F.Hewthorn & Co.Ltd [1943] KB 587

However, there is some case law that prior conviction can be used for other purposes. If a witness is to be declared hostile or unreliable, then prior conviction may be used as evidence. In general, the court should weight the probative value of the evidence against its prejudicial weight to the defendant when determining the admissibility of the evidence.

Consent orders in Family Law Proceedings

2009-04-10T07:51:00.000-07:00

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If a custody agreement has been reached and approved by a court, then it can be altered. However, there would have to be some interaction with the court in order to make this alteration. If it is possible to obtain the consent of the other party to the parenting order (this is the new name for a custody order) then the alterations are much easier, quicker, simpler and cheaper. However, if it is going to be impossible to obtain the consent of the other party, it is still possible, but you not be able to claim that the application is by consent. If you are worried that there are actual acts of abuse being committed against the child, then it may be a matter for the police.

Chapter 13, Bankruptcy and Tax

2009-04-10T05:01:00.000-07:00

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Previously it was thoughts that Chapter 13 Bankruptcy allowed you to get away without paying your taxes. However, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 changed the rules. Any back taxes related to non-filed or late filed returns can no longer be discharged. This includes any interest that incurred after filing your petition. Penalties cannot be discharged either. In addition, the automatic stay of tax court proceedings is limited to pre-petition taxes.

Tax Returns and Bankruptcy

Under the new law, federal tax returns for the last year must be provided as proof of income in both chapter 7 and chapter 13. If the taxes for the prior year have not been paid, you must do so before the bankruptcy can move ahead.

In order for your chapter 13 plan to be confirmed, you must file all tax returns for the four year period before filing for bankruptcy. You must establish that you filed by the first meeting of the creditors. Seven days before that meeting, you are required to provide the trustee with a copy of your most recent federal tax return. If the returns are not filed, a chapter 7 discharge will not be granted and a chapter 13 plan will not be confirmed. Further, if your creditors request a copy of the return, you must provide it for them.

Tax Liens

Liens give the government a legal claim to your property as security or payment for your tax debt. By filing notice of a lien, your creditors are publicly notified that there is a claim against all your property, including property you acquire after the lien is filed. This notice is used by courts to establish priority in bankruptcy proceedings. The lien attaches to all your property (such as your house or car) and to all your rights to property (such as your accounts receivable, if you are a business).

When the IRS places a tax lien on your property, it must be paid in full. However the IRS may be forced to accept a payment plan through the filing of a Chapter 13 bankruptcy

What is Chapter 13 and how can it help me?

2009-04-10T04:31:00.000-07:00

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What is it?

Chapter 13 is the part of the Bankruptcy Code providing for adjustment of debts of an individual with regular income. (Chapter 13 allows a debtor to keep property and pay debts over time, usually three to five years.) A chapter 13 bankruptcy is also called a wage earner's plan. It enables individuals with regular income to develop a plan to repay all or part of their debts. U

Advantages of Chapter 13

Chapter 13 offers individuals a number of advantages over chapter 7:

1. Opportunity to save home from foreclosure
2. Opportunity to reschedule secured debts
3. Chapter 13 can operate like a consolidation loan under which the individual makes the plan payments to a chapter 13 trustee who then distributes payments to creditors

Eligibility

Criteria:

1. Unsecured debts are less than $336,900
2. Secured debts are less than $1,010,650 (11 U.S.C. § 109(e))
3. Must be a natural person
4. No evidence of willful failure to appear before the court or comply with orders of the court within 180 days of proceedings.
5. Must have received credit counseling

The process

1. Filing

A chapter 13 case begins by filing a petition with the bankruptcy court serving the area where the debtor has a domicile or residence. Unless the court orders otherwise, the debtor must also file with the court: (1) schedules of assets and liabilities; (2) a schedule of current income and expenditures; (3) a schedule of executory contracts and unexpired leases; and (4) a statement of financial affairs. Fed. R. Bankr. P. 1007(b). The debtor must also file a certificate of credit counseling and a copy of any debt repayment plan developed through credit counseling; evidence of payment from employers, if any, received 60 days before filing; a statement of monthly net income and any anticipated increase in income or expenses after filing; and a record of any interest the debtor has in federal or state qualified education or tuition accounts. 11 U.S.C. § 521. The debtor must provide the chapter 13 case trustee with a copy of the tax return or transcripts for the most recent tax year as well as tax returns filed during the case (including tax returns for prior years that had not been filed when the case began). Id. A husband and wife may file a joint petition or individual petitions. 11 U.S.C. § 302(a).

The courts must charge a $235 case filing fee and a $39 miscellaneous administrative fee. Normally the fees must be paid to the clerk of the court upon filing. With the court's permission, however, they may be paid in installments. 28 U.S.C. § 1930(a); Fed. R. Bankr. P. 1006(b); Bankruptcy Court Miscellaneous Fee Schedule, Item 8. The number of installments is limited to four, and the debtor must make the final installment no later than 120 days after filing the petition. Fed. R. Bankr. P. 1006(b). For cause shown, the court may extend the time of any installment, as long as the last installment is paid no later than 180 days after filing the petition. Id. The debtor may also pay the $39 administrative fee in installments. If a joint petition is filed, only one filing fee and one administrative fee are charged. Debtors should be aware that failure to pay these fees may result in dismissal of the case. 11 U.S.C. § 1307(c)(2).

In order to complete the Official Bankruptcy Forms that make up the petition, statement of financial affairs, and schedules, the debtor must compile the following information:

1. A list of all creditors and the amounts and nature of their claims;
2. The source, amount, and frequency of the debtor's income;
3. A list of all of the debtor's property; and
4. A detailed list of the debtor's monthly living expenses, i.e., food, clothing, shelter, utilities, taxes, transportation, medicine, etc.
Married individuals must gather this information for their spouse regardless of whether they are filing a joint petition, separate individual petitions, or even if only one spouse is filing. In a situation where only one spouse files, the income and expenses of the non-filing spouse is required so that the court, the trustee and creditors can evaluate the household's financial position.

When an individual files a chapter 13 petition, an impartial trustee is appointed to administer the case. 11 U.S.C. § 1302. In some districts, the U.S. trustee or bankruptcy administrator (2) appoints a standing trustee to serve in all chapter 13 cases. 28 U.S.C. § 586(b). The chapter 13 trustee both evaluates the case and serves as a disbursing agent, collecting payments from the debtor and making distributions to creditors. 11 U.S.C. § 1302(b).

Filing the petition under chapter 13 "automatically stays" (stops) most collection actions against the debtor or the debtor's property. 11 U.S.C. § 362. Filing the petition does not, however, stay certain types of actions listed under 11 U.S.C. § 362(b), and the stay may be effective only for a short time in some situations. The stay arises by operation of law and requires no judicial action. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, wage garnishments, or even make telephone calls demanding payments. The bankruptcy clerk gives notice of the bankruptcy case to all creditors whose names and addresses are provided by the debtor.

Chapter 13 also contains a special automatic stay provision that protects co-debtors. Unless the bankruptcy court authorizes otherwise, a creditor may not seek to collect a "consumer debt" from any individual who is liable along with the debtor. 11 U.S.C. § 1301(a). Consumer debts are those incurred by an individual primarily for a personal, family, or household purpose. 11 U.S.C. § 101(8).

Individuals may use a chapter 13 proceeding to save their home from foreclosure. The automatic stay stops the foreclosure proceeding as soon as the individual files the chapter 13 petition. The individual may then bring the past-due payments current over a reasonable period of time. Nevertheless, the debtor may still lose the home if the mortgage company completes the foreclosure sale under state law before the debtor files the petition.11 U.S.C. § 1322(c). The debtor may also lose the home if he or she fails to make the regular mortgage payments that come due after the chapter 13 filing.

2. Meeting of Creditors

Between 20 and 50 days after the debtor files the chapter 13 petition, the chapter 13 trustee will hold a meeting of creditors. If the U.S. trustee or bankruptcy administrator schedules the meeting at a place that does not have regular U.S. trustee or bankruptcy administrator staffing, the meeting may be held no more than 60 days after the debtor files. Fed. R. Bankr. P. 2003(a). During this meeting, the trustee places the debtor under oath, and both the trustee and creditors may ask questions. The debtor must attend the meeting and answer questions regarding his or her financial affairs and the proposed terms of the plan.11 U.S.C. § 343. If a husband and wife file a joint petition, they both must attend the creditors' meeting and answer questions. In order to preserve their independent judgment, bankruptcy judges are prohibited from attending the creditors' meeting. 11 U.S.C. § 341(c). The parties typically resolve problems with the plan either during or shortly after the creditors' meeting. Generally, the debtor can avoid problems by making sure that the petition and plan are complete and accurate, and by consulting with the trustee prior to the meeting.

In a chapter 13 case, to participate in distributions from the bankruptcy estate, unsecured creditors must file their claims with the court within 90 days after the first date set for the meeting of creditors. Fed. R. Bankr. P. 3002(c). A governmental unit, however, has 180 days from the date the case is filed file a proof of claim.11 U.S.C. § 502(b)(9).

After the meeting of creditors, the debtor, the chapter 13 trustee, and those creditors who wish to attend will come to court for a hearing on the debtor's chapter 13 repayment plan.

3. Confirmation Hearing

Unless the court grants an extension, the debtor must file a repayment plan with the petition or within 15 days after the petition is filed. Fed. R. Bankr. P. 3015. A plan must be submitted for court approval and must provide for payments of fixed amounts to the trustee on a regular basis, typically biweekly or monthly. The trustee then distributes the funds to creditors according to the terms of the plan, which may offer creditors less than full payment on their claims.

There are three types of claims: priority, secured, and unsecured. Priority claims are those granted special status by the bankruptcy law, such as most taxes and the costs of bankruptcy proceeding. (3) Secured claims are those for which the creditor has the right take back certain property (i.e., the collateral) if the debtor does not pay the underlying debt. In contrast to secured claims, unsecured claims are generally those for which the creditor has no special rights to collect against particular property owned by the debtor.

The plan must pay priority claims in full unless a particular priority creditor agrees to different treatment of the claim or, in the case of a domestic support obligation, unless the debtor contributes all "disposable income" - discussed below - to a five-year plan.11 U.S.C. § 1322(a).

Within 30 days after filing the bankruptcy case, even if the plan has not yet been approved by the court, the debtor must start making plan payments to the trustee. 11 U.S.C. § 1326(a)(1). If any secured loan payments or lease payments come due before the debtor's plan is confirmed (typically home and automobile payments), the debtor must make adequate protection payments directly to the secured lender or lessor - deducting the amount paid from the amount that would otherwise be paid to the trustee. Id.

No later than 45 days after the meeting of creditors, the bankruptcy judge must hold a confirmation hearing and decide whether the plan is feasible and meets the standards for confirmation set forth in the Bankruptcy Code. 11 U.S.C. §§ 1324, 1325. Creditors will receive 25 days' notice of the hearing and may object to confirmation. Fed. R. Bankr. P. 2002(b). While a variety of objections may be made, the most frequent ones are that payments offered under the plan are less than creditors would receive if the debtor's assets were liquidated or that the debtor's plan does not commit all of the debtor's projected disposable income for the three or five year applicable commitment period.

If the court confirms the plan, the chapter 13 trustee will distribute funds received under the plan "as soon as is practicable." 11 U.S.C. § 1326(a)(2). If the court declines to confirm the plan, the debtor may file a modified plan. 11 U.S.C. § 1323. The debtor may also convert the case to a liquidation case under chapter 7. (4) 11 U.S.C. § 1307(a). If the court declines to confirm the plan or the modified plan and instead dismisses the case, the court may authorize the trustee to keep some funds for costs, but the trustee must return all remaining funds to the debtor (other than funds already disbursed or due to creditors). 11 U.S.C. § 1326(a)(2).

Making the Plan Work

The provisions of a confirmed plan bind the debtor and each creditor. 11 U.S.C. § 1327. Once the court confirms the plan, the debtor must make the plan succeed. The debtor must make regular payments to the trustee either directly or through payroll deduction, which will require adjustment to living on a fixed budget for a prolonged period. Furthermore, while confirmation of the plan entitles the debtor to retain property as long as payments are made, the debtor may not incur new debt without consulting the trustee, because additional debt may compromise the debtor's ability to complete the plan. 11 U.S.C. §§ 1305(c), 1322(a)(1), 1327.

A debtor may make plan payments through payroll deductions. This practice increases the likelihood that payments will be made on time and that the debtor will complete the plan. In any event, if the debtor fails to make the payments due under the confirmed plan, the court may dismiss the case or convert it to a liquidation case under chapter 7 of the Bankruptcy Code. 11 U.S.C. § 1307(c). The court may also dismiss or convert the debtor's case if the debtor fails to pay any post-filing domestic support obligations (i.e., child support, alimony), or fails to make required tax filings during the case. 11 U.S.C. §§ 1307(c) and (e), 1308, 521.

4. The Chapter 13 Discharge

The bankruptcy law regarding the scope of the chapter 13 discharge is complex and has recently undergone major changes. Therefore, debtors should consult competent legal counsel prior to filing regarding the scope of the chapter 13 discharge.

A chapter 13 debtor is entitled to a discharge upon completion of all payments under the chapter 13 plan so long as the debtor: (1) certifies (if applicable) that all domestic support obligations that came due prior to making such certification have been paid; (2) has not received a discharge in a prior case filed within a certain time frame (two years for prior chapter 13 cases and four years for prior chapter 7, 11 and 12 cases); and (3) has completed an approved course in financial management (if the U.S. trustee or bankruptcy administrator for the debtor's district has determined that such courses are available to the debtor). 11 U.S.C. § 1328. The court will not enter the discharge, however, until it determines, after notice and a hearing, that there is no reason to believe there is any pending proceeding that might give rise to a limitation on the debtor's homestead exemption. 11 U.S.C. § 1328(h).

The discharge releases the debtor from all debts provided for by the plan or disallowed (under section 502), with limited exceptions. Creditors provided for in full or in part under the chapter 13 plan may no longer initiate or continue any legal or other action against the debtor to collect the discharged obligations.

As a general rule, the discharge releases the debtor from all debts provided for by the plan or disallowed, with the exception of certain debts referenced in 11 U.S.C. § 1328. Debts not discharged in chapter 13 include certain long term obligations (such as a home mortgage), debts for alimony or child support, certain taxes, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor's conviction of a crime. To the extent that they are not fully paid under the chapter 13 plan, the debtor will still be responsible for these debts after the bankruptcy case has concluded. Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for restitution or damages awarded in a civil case for willful or malicious actions by the debtor that cause personal injury or death to a person will be discharged unless a creditor timely files and prevails in an action to have such debts declared nondischargeable. 11 U.S.C. §§ 1328, 523(c); Fed. R. Bankr. P. 4007(c).

The discharge in a chapter 13 case is somewhat broader than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts for willful and malicious injury to property (as opposed to a person), debts incurred to pay nondischargeable tax obligations, and debts arising from property settlements in divorce or separation proceedings. 11 U.S.C. § 1328(a).

5. The Chapter 13 Hardship Discharge

After confirmation of a plan, circumstances may arise that prevent the debtor from completing the plan. In such situations, the debtor may ask the court to grant a "hardship discharge." 11 U.S.C. § 1328(b). Generally, such a discharge is available only if: (1) the debtor's failure to complete plan payments is due to circumstances beyond the debtor's control and through no fault of the debtor; (2) creditors have received at least as much as they would have received in a chapter 7 liquidation case; and (3) modification of the plan is not possible. Injury or illness that precludes employment sufficient to fund even a modified plan may serve as the basis for a hardship discharge. The hardship discharge is more limited than the discharge described above and does not apply to any debts that are nondischargeable in a chapter 7 case. 11 U.S.C. § 523.

Bankruptcy Q and A:

2009-03-29T00:11:00.000-07:00

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Q:

My wife and I are divorced. She is living in the Mobile Home until I can sell it (given to me in settlement). Not having any luck selling. Am considering letting it get repossessed. If I do, I know my credit will take a big hit. Will I still owe the Mortgage company for the loan?

A:

Normally, the answer to this is yes. The contract you signed created an obligation to pay a certain amount of money in a certain amount of time. The bank sells the car at an auction, deducts what they sold the car for from the balance you owe, and then you owe the remaining balance.

Even though you don't have the car doesn't mean you don't have to pay back the money that you borrowed to purchase the car. You would probably be better of to keep paying the loan back. Ther are only a few ways you can completely expunge the debt which are either to completely pay back the loan as it is stated in the contract, renegoiate the terms of the loan with the bank, refinance or to declare bankruptcy. Bankruptcy is definitely not a good idea because your credit rating will be totally destroyed. You can find a good article about ebt management techniques here: http://www.mortgageloan.com/five-strategies-to-get-out-of-debt I am sure that there would also be some refinancing options available.

Become a lawful permanent resident of the United States - Form I-485

2009-03-28T21:11:00.000-07:00

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How Do I Become a Lawful Permanent Resident While In The United States?

An immigrant is a foreign national who has been granted the privilege of living and working permanently in the United States. You must go through a multi-step process to become an immigrant. In most cases, USCIS must first approve an immigrant petition for you, usually filed by an employer or relative. Then, an immigrant visa number must be available to you, even if you are already in the United States. After that, if you are already in the United States, you may apply to adjust to permanent resident status (If you are outside the United States, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.)

Where Can I Find the Law?

The Immigration and Nationality Act is a law that governs immigration in the United States. For the part of the law concerning most types of permanent resident status, please see INA § 245. The specific eligibility requirements and procedures for adjusting to permanent residence status are included in the Code of Federal Regulations [CFR] at 8 CFR § 245.

How Do I Apply?

Basically, you apply using for I485. After you submit your application materials, you will be asked to go to a USCIS office to answer questions about your applications.

Will I Get a Work Permit?

Applicants for adjustment to permanent resident status are eligible to apply for a work permit while their cases are pending. You should use USCIS Form I-765 to apply for a work permit. You do not need to apply for a work permit once you adjust to permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will prove that you have a right to live and work in the United States permanently. Please see How Do I Get a Work Permit? for more information.

Can I Travel Outside the United States?

If you are applying for adjustment to permanent resident status, you must receive advance permission to return to the United States if you are traveling outside the United States. This advance permission is called Advance Parole. If you do not obtain Advance Parole before you leave the country, you will abandon your application with USCIS and you may not be permitted to return to the United States.

How Can I Appeal?

The only applications for permanent residency (Form I-485) which can be appealed to USCIS are those based on a marriage which took place while the alien's application was in process or those based on Section 586 of Public Law 106-429, these appeals must be made to the Administrative Appeals Unit (AAU).

Generally, you may appeal within 33 days after the immigration judge decides to remove you from the country. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C. For more information, please see, How Do I Appeal A Denial of My Application or Petition?.

Can Anyone Help Me?

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Writing a legal letter to a creditor

2009-02-28T17:18:00.000-08:00

If you owe someone someone some money, there is every chance that they will aggressively pursue you in order to have their debt satisfied. Here are some simple letter writing strategies which can assist you with communicating with creditors to achieve the best outcome for everyone involved. This is a latter you may want to use to get started with resolving your issues with a creditor.

Today's Date

Your Name
Your Address

Business Name
Business Address

Re: (account number, if applicable)

Dear {use the name of the person with whom you spoke with}

Thank you for speaking with me today and for agreeing to resolve my complaint.

For the record, my complaint is (clearly but briefly describe your complaint - use facts)

As agreed upon in our conversation, you will state that you or your company will (state the specific action agreed upon including all details) See note below

Thank you for your help and understanding.

Sincerely,

Signature
Your Printed Name

Naturally, these things are always easier with the help of a trained professional, click on the link at the top to ask for some help from an expert at just answer.

Brief Guide to navigating legal issues in Divorce

2009-02-07T19:39:00.001-08:00

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DIvorce Law in the UK

2009-02-07T19:33:00.000-08:00

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A large number of enquiries relating to divorce law in the UK has prompted us te o post the following notes on the topic. If you have any questions regarding this information, please do not hesitate to contact us.

Notes:

Sources: http://www.sharingpensions.co.uk/marbreak8.htm

Introduction
The core legislation the court must have regard for during cases of divorce is the Matrimonial Causes Act 1973 (MCA 73). Over time this Act has been adapted in order to help the court achieve a clean break for the parties.

The interpretation of the Act has placed emphasis on the needs of the parties. So where the assets are substantial, the former spouse has been awarded benefits that are a fraction of the value of the assets.

Recent case law, such as the House of Lords ruling in the landmark case of White v White (2000), has made significant changes to the approach of the court when ruling on the division of assets on divorce in these circumstances.

During ancillary relief proceedings rules require three stages to resolve the matrimonial assets, being the first appointment, financial dispute resolution (FDR) and the final hearing. During this process the court can have regard to other rules to ensure the parties are on an equal footing when considering the financial matters as can be seen in the step-by-step guide and when expert evidence is required, the power to instruct the parties to appoint a single pensions expert.

Further changes to the way divorce can be initiated will be introduced by the Family Law Act 1996 (FLA 96), although the government has postponed the implementation of this Act for the time being.

Matrimonial Causes Act 1973
The matters that will typically concern the parties most during divorce will be the division of the matrimonial assets. The legislation that gives the court the power to resolve the matrimonial assets and financial matters, including the value of retirement benefits of any pension arrangements, if the Matrimonial Causes Act 1973 (MCA 73).

In particular section 25 of the Matrimonial Causes Act 1973 sets out the principles where it is the duty of the court to decide whether to exercise its powers and to have regard to achieving a clean break between the parties as well as to have regard to all circumstances of the case including the following matters:

• The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including;

• The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

• The standard of living enjoyed by the family before the breakdown of the marriage;

• The age of each party to the marriage and the duration of the marriage;

• Any physical or mental disability of either of the parties to the marriage;

• The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

• The value to either of the parties to the marriage of any benefit (this can include pension arrangements) that (as a result of the divorce) the party will loose the chance of acquiring.

Where there are children of the marriage the court will want to ensure the parties maintain their obligation and responsibilities until the children cease to be dependent. This may mean making arrangements for children such as continued maintenance so it is not possible to achieve a clean break.

There have been amendments made to the MCA 73 to reflect the needs of the former spouse to secure retirement benefits on divorce. Section 166 of the Pensions Act 1995 introduced earmarking and inserted sections 25B to 25D of the MCA 73. The MCA 73 has been further amended by section 19 and 21 of the Welfare Reform and Pensions Act 1999 (WRPA) that introduced pension sharing as well as requiring an earmarking order to be expressed as a percentage.

Future legislative changes
The Family Law Act 1996 (FLA 96) when fully in force will modify the Matrimonial Causes Act 1973 and in particular the current procedure for divorce requires the couple to be married for more than one year and the only ground for divorce procedures is that the marriage has irretrievably broken down.

The FLA 96 would introduce no fault divorce, which means that no grounds will have to be shown as to why the marriage has irretrievably broken down. However, although the FLA 96 has been passed by parliament and will be brought into force with statutory instruments by the Lord Chancellor in stages, the government announced in December 2000 that the Act would. In part, be postponed probably for several years.

Case law influence
In addition to legislative changes from the Matrimonial Causes Act 1973, Pensions Act 1995 and Family Law Act 1996 and Welfare Reform and Pensions Act 1999 as well as recent cases that also influence the division of retirement benefits on divorce. With the application of earmarking orders the case of T v T (1998) showed that the usual emphasis of the court on the needs of the former spouse, this being only one of the considerations of section 25 of the MCA 73, was significant in the ruling.

The former spouse was entitled to a proportion of other matrimonial assets and maintenance but no compensation was made for the loss of pension rights to the former spouse and only an earmarking order was made on the husbands lump sum death benefit. However, it is significant that the court did consider the cash equivalent transfer value (CETV) to be of no use in determining a fair value of the retirement benefits.

Another earmarking case was Burrow v Burrow (1999) where the matrimonial assets were substantial. The former spouse received a large settlement from the sale of the family home and annual maintenance from her husband. Initially there was also an earmarking order of half the tax free lump sum and half the husbands pension income.

On appeal the earmarking order against the pension income was allowed as under the MCA 73 there is no legal requirement for an equal split of the matrimonial assets if this is not appropriate. A significant change came about with the landmark case of White v White (2000). The traditional approach of the court during the 1980s and 1990s emphasized the importance of needs and reasonable requirements of the spouse rather than an arithmetic division of the matrimonial assets.

The House of Lords ruled on the case and went further to clarify that there can no longer be gender discrimination when determining the allocation of ancillary relief and that the judge should start as a general guide with an equal division of the matrimonial assets and this will include any pension arrangements.

Ancillary relief rules
A number of rules will apply to ancillary relief proceedings. In particular new arrangements effective from 5 June 2000 means that these proceedings will have fewer delays for settlement, lower costs and greater control by the court of the conduct and proceedings and the step-by-step guide shows this process. The Family Proceedings (Amendment No.2) Rules 1999 inserts rule 2.61E of the Family Proceedings Rules 1991 that introduces a three stage process involving the first appointment, financial dispute resolution (FDR) and the final hearing.

During any stage of this process the court will expect the parties to make offers to settle all or part of the matrimonial assets and for the recipient to give full consideration. If the couple cannot come to an agreement the court has the power to make a ruling after careful consideration of the facts of the case in the final hearing.

Also important for the division of a members pension rights is rule 2.51B of the Family Proceedings Rules 1991 that applies to expert evidence and states that the overriding objective of the court must be to ensure that the parties are on an equal footing and deal with the case in ways which are proportionate to the amount of money involved, to the complexity of the issues and to the financial position of each party.

In all cases the court will need to be satisfied that the extra costs associated with expert evidence are justified whether this results in earmarking or pension sharing of the retirement benefits or offsetting against other matrimonial assets,

Whether expert evidence is accepted during ancillary relief proceedings will depend on the courts regard for rule 2.61C of the Family Proceeding Rules 1991. This states that expert evidence will not be allowed (whether written or oral) unless permission has been given by the court and the court will only give permission if expert evidence is reasonable required and justified and in accordance with the overriding objective of rule 2.51B of the Proceeding Rules 1991. Where the appointment of a pensions expert is necessary but the parties cannot agree on a single expert, the court has, under part 35 of the Civil Procedures Rules 1998, the power to instruct that evidence be given by a single pensions expert.

New York Divorce Law

2009-02-07T19:27:00.000-08:00

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Due to a large number of enquiries regarding the laws of divorce, we have decided to post some information on the laws of divorce in the state of New York. Please do not hesitate to contact us if you have any questions regarding these issues.

Notes acquired from: http://www.divorcesource.com/info/divorcelaws/newyork.shtml

Residency and Filing Requirements:

In order to file for a divorce in New York, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:

Required residence of parties. An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:

1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or

4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or

5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 230 and 231)

Grounds for Filing: The Complaint for Divorce must declare the appropriate New York grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:

Action for divorce. An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

(2) The abandonment of the plaintiff by the defendant for a period of one or more years.

(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.

(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation. (Consolidated Laws of New York - Domestic Relations Laws - Volume 8 - Sections: 170 and Article 10, Section 170, and Article 13, Section 230)

Filing Spouse Title: Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.

Non-Filing Spouse Title: Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.

Court Name: Supreme Court of the State of New York, __________ County. This is the New York court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.

Primary Documents: Complaint for Divorce and Judgment of Divorce. These are the essential documents needed to start and finalize a divorce according to New York law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Summons (UD-1), Marital Settlement Agreement, Sworn Statement of Removal of Barriers to Remarriage (UD-4), Affidavit for Defendant in Divorce Action (UD-7), Qualifed Medical Support Order (UD-8b), and Findings of Fact/Conclusions of Law (UD-10).

Court Clerk's Title: Office of the Clerk of the County Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.

Property Distribution: Since New York is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.

Disposition of property in certain matrimonial actions.

a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.

b. Separate property shall remain such.

c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.

The court shall consider the following factors when distributing property upon divorce:

(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;

(2) the duration of the marriage and the age and health of both parties;

(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

(5) any award of maintenance under subdivision six of this part;

(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(7) the liquid or non-liquid character of all marital property;

(8) the probable future financial circumstances of each party;

(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

(10) the tax consequences to each party;

(11) the wasteful dissipation of assets by either spouse;

(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(13) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)

Spousal Support: Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.

In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties. Such direction may require the payment of a sum or sums of money either directly to either spouse or to third persons for real and personal property and services furnished to either spouse, or for the rental of or mortgage amortization or interest payments, insurance, taxes, repairs or other carrying charges on premises occupied by either spouse, or for both payments to either spouse and to such third persons.

In determining appropriate temporary or permanent maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider:

(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;

(2) the duration of the marriage and the age and health of both parties;

(3) the present and future earning capacity of both parties;

(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;

(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;

(6) the presence of children of the marriage in the respective homes of the parties;

(7) the tax consequences to each party;

(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(9) the wasteful dissipation of marital property by either spouse;

(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and

(11) any other factor which the court shall expressly find to be just and proper. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)

Child Custody: When minor children are involved in a divorce, the New York courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.

In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 240)

Child Support: New York child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent¹s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.

Order of support by parent. When the court makes an order of support pursuant to the support guidlines, and where permitted under federal law and where the record of the proceedings contains such information, the court shall require the social security number of such parent to be affixed to such order; provided, however, that no such order shall be invalid because of the omission of such number. Where the record of the proceedings contains such information, such order shall also include on its face the name and address of the employer, if any, of the person chargeable with support provided, however, that failure to comply with this requirement shall not invalidate such order.

In determining the appropriate support amount the court will consider the following factors, but not limited to: 1. financial resources of the parties involved, including the children. 2. The standard of living prior to the divorce. 3. The physical and mental health of the children. 4. The tax ramifications. 5. Educational needs of the parents and children. 6. Other children outside the marriage each parent may have. (Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236, 240, and 243)

What is the legal status of internet pornography in Australia?

2009-02-01T06:32:00.000-08:00

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There is no prohibition against running a porn site in Australia as long as the content itself is not illegal because of depicting acts of violence, child pornography, bestiality or other types of illegal sexual acts. In Australia, the publication of internet pornography is regulated under Schedule 5 to the Broadcasting Services Act 1992. The scheme allows complaint investigation. Basically, the online content scheme is the complaints mechanism that allows members of the Australian public to submit complaints to ACMA about offensive and illegal internet content.

Offensive and illegal internet content will be ‘prohibited’ under the scheme if it meets certain classification thresholds, irrespective of where the content is hosted. If prohibited content is hosted in Australia, ACMA will direct the internet content host to remove the content from its service. Sufficiently serious internet content (for example, illegal material such as child pornography) will be referred by ACMA to the appropriate law enforcement agency.

You can find information about the classification thresholds at: www.acma.gov.au, but there are basically two thresholds of classification:

‘RC’ (‘refused classification’). Such content includes, for example, illegal material (such as child sexual abuse material) and other highly offensive material (such as bestiality).

‘X18+’. Such content includes material containing real depictions of actual sexual activity. • Content hosted in Australia which is classified ‘R18+’ and not subject to a restricted access system which complies with criteria determined by ACMA. Content classified R18+ is not considered suitable for minors. Such content includes, for example, material containing implied (or simulated) sexual activity.

Have I been Wrongfully Terminated?

2009-01-25T00:48:00.000-08:00

Most parts of the US have what is called an 'at will' employment arrangement. This means that an employee can be fired for any reason, or without a reason. However, there are grounds in the US for 'unlawful' termination. This is where a person is terminated because of their race, religion, sex, national origin, age or disability. Unlawful termination also applies where an employee is terminated for refusing to break a law in the course of employment or whistleblowing against the employer. Where a worker is fired for filing a workers' compensation claim, this will also be unlawful. Another situation which an employee may find themselves in is one of 'constructive discharge'. If an employee feels that an employer has created intolerable working conditions and refuses to address the issues, resulting in the employee feeling forced to resign, the employee may be able to sue for constructive discharge and apply for unemployment benefits.

A very common question that comes up is if an employer has denied my unemployment benefits. Can they do that? The answer is that your employer doesn't have the power to deny your unemployment benefits, only to protest them. The state unemployment office makes the final decision. If you feel that you have been wrongfully terminated, you should seek legal advice as soon as possible.

Importance of Legal Aid

2009-01-18T00:30:00.000-08:00

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Introduction to bankruptcy

2009-01-16T22:58:00.000-08:00

In the United States, Bankruptcy law is federal law, under Article I, Section 8, Clause 4 of the United States Constitution. The substantive law of Bankruptcy is contained in Title 11 of the United States Code. There are two very different types of Bankruptcy. Most consumers pass into bankruptcy because they file, of their own volition a debtor's petition where they seek to have relief from their debts granted by the court under Chapter 7 Bankruptcy a court can make an order of this nature. Under Chapter 13 or 11 it is possible to resturctue a debt through an extention of time to pay, a reduction in the total ammount or some combination of both The other type of petition is a creditor's petition which is usually involuntary, this is where the creditor will bankrupt the debtor. This usually occurs when the debtor is owed a large sum which it does not expect can be paid back. The major types of bankruptcy fall into the categories outined by the legislation under chapter 7, 11 and 13.

Chapter 7

This is where the bul of consumer cases lie. This is usually for individuals who have incurred debt for personal, family or household reasons. The effect of the Chapter 7 discharge is surrender to a bankruptcy trustee (a fiduciary representing the interests of unsecured creditors of the debtor) of the debtor's non-exempt assets. Exempt assets as well as the debtor's future earnings are free from the reach of the trustee and the debtor's pre-petition creditors. The exemption of certain assets, the protection of the debtor's future earnings (i..e. earnings attributable to work performed following the filing of the petition), and the discharge collectively provide the debtor with a "fresh start."

Chapter 13

This applies to individuals with regular income whose debts do not exceed prescribed limits called the "Adjustment of Debts of An Individual with Regular Income" . The debtor proposes a plan to pay creditors from the debtor's future income. Unlike Chapter 7, the debtor in Chapter 13 will usually keep all of his or her property, whether or not exempt.

Chapter 11

This is available to individuals, corporations, and other entities but is mainly used by corporations, known as "Reorganization". Secured creditors fare better in either a Chapter 13 or Chapter 11 proceeding than their unsecured counterparts.

Naturally, Bankruptcy law is actually a very large and complicated area which can take a long time to work through. If you are facing bankruptcy or involved in bankruptcy proceedings, it it best to seek professional advice to reach a suitable solution in cases such as this.

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How can I deal with online scams?

2009-01-09T02:33:00.000-08:00

Have you ever received an email saying that you will be entitled to a large amount of money if you just send your bank account details to someone that you have never met before?

You need to be extremely cautious before you respond to offers like this, as these types of offers ar almost always a scam. They give a fanciful explanation over the internet for how there is a large amount of money sitting in a foreign bank account waiting for you, if you will just provide them with some bank account details. They then use this information to defraud your bank account. To identify if it is a scam, there are usually a number of indicators like, it will promise you a large windfall which will be impossible to realize if they breach your trust, it will be impossible to verify their identity in person or over the phone and there will usually not be a tangible. A list of the standard forms these scams take can be found here:

http://www.nigerianscams.org/free/k_doYvatq9.htm#ClearanceCertificate

Also, another good resource for identifying scams is here:

http://www.scamwatch.gov.au/content/index.phtml/itemId/693900

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All about criminal record checks

2009-01-03T01:28:00.000-08:00

1. Why check?

Crminal record checks are becoming more and more common as people from all walks of life discover that there are can be unpleasant things in the background of someone they might be thinking about employing, allowing to rent their property, entering into a close personal relationship with or in some other way giving their trust to another person. Criminal record checks can help to establish that a person is free from any serious prior wrongdoing.

2. What are the major issues with criminal record checks?

In some jusrisdictions, privacy is a concern for agencies releasing criminal records although these restrictions are often not a strong for records such as health, financial and employment records because it is recognised that there is a strong public interest reason for allowing the general public to access criminal records. Also, in some jurisdictions, criminal record checks will not show the juvenile criminal record of a person, because they are considered to have reached an age of majority and their record is wiped clean.

3. How do I do a criminal record check?

Before the advent of the internet, this was a time consuming and sometimes expensive process which only large organisations could really afford to do. However, these days, there are a massive number of online legal services which offer access to police criminal records.

A good example is Family Watchdog which is a site that offers access to a national database of registered sex offenders. Sites such as these offer a cheap and effective way to look out for the most pernicious and threatening types of offenders which can reenter the community.

Also, many Courts now offer free technology which allows the public to lookup judgments, which can assist you with finding out if there has been any legal action brought against, you can simply use the search function in the court website.

Property Settlement in Divorce - California

2008-12-30T03:08:00.000-08:00

In California, when two persons get divorced initially there are two things that can happen. The first is where there is no disagreement between the parties about property settlement agreement. In this situation, the property of the marriage will be divided according to a written agreement between the spouses ("marital separation agreement"). The major issues, financial and non-financial in the agreement are usually property and debt division, custody, child support and spousal support. Once the divorce proceedings have commenced, it can be incorporated into the divorce and become part of the relevant court order, in which case it is enforceable. If this does not happen, then the terms would simply remain an agreement between the parties.

The legal system generally encourages any proceedings which occur by consent between the parties. The reason for this is that it represents the most likely way that the proceedings will be resolved quickly and with a minimum of cost and emotional turmoil to both sides. Consent based proceedings move through the system much more quickly. Once this process has been completed and the agreement has been made part of the orders of the court, the property settlement agreement can only be amended by another hearing in front of a judge and negating any significant extenuating circumstances, the property agreement negotiated will carry a lot of weight.

Unllike other states, in California all property such as pensions, profit-sharing benefits, stock options, and other retirement benefits acquired during a marriage is considered to be marital property and all property owned before the marriage is considered to be non-marital property. This division also applies to debts. Debts are also considered community or marital property and may include credit card bills. If the parties cannot agree on the division of property and debts a judge will review your circumstances and issue an order making the decision for you.

The definition of separate property is 'property acquired before your marriage and may include rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during marriage; and gifts to one member of the marriage alone you alone, not you and your spouse.

Because the enormously complicated nature of property division issues in California and the potential for these issues to become unmanageable, finding high quality legal advice is always recommended at a difficult stage such as this.

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How to File for Divorce in California

2008-12-28T14:29:00.000-08:00

Going through a divorce can be one of the most trying and difficult experiences anyone will ever face. Knowing how to navigate the legal system and the maze of hurdles can really help with getting a divorce through quickly, cheaply and in an uncomplicated way.

In California, a divorce is called 'dissolution' You need to be a resident of California for six months and a county resident for three months to file at which time, either spouse may file stating "irreconcilable differences". It is much easier to end a marriage by consent and if this is the case, a written agreement (called a "stipulation") can be made.

The legal divorce process begins when one of the spouses files a "Petition for Dissolution of Marriage". The papers are then sent to the other spouse. So long as there is consent over issues such as property and debt division, child custody and child support matters, the divorce can simply be finalised, if there is no agreement, a hearing date can be set for when the parties will put thier respective cases to the court. Stay tuned for later articles about the the next stages of the process in a divorce in California.

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Can someone sue me for breach of restraint of trade?

2008-12-26T17:00:00.000-08:00

Notionally, there is nothing wrong with this. The circumstances where this normally arises is where there is a restraint of trade clause in your contract of employment (a clause which states that you cannot work for the clients of a business if the relationship of employment is terminated). However, it sounds from what you have described that there is no such contract in place. Simply because someone threatens to sue you does not mean they actually have a viable casewhich will hold up in court. If they threaten to sue you they should at least state what cause of action they are proposing.

At any rate, you may have a viable debt recovery claim avaiable to you for unpaid invoices. Their failure to pay you may in fact give you a right to sue them. The problem with contacting the clients directly is that they might already have paid thier bill to the former partners and they will certainly not wish to pay twice. Having said that, I can see no problem with gathering information from them or entering into an arrangment for future services independent of your previous employer.

What is the law in Texas of Unlawful Termination?

2008-12-26T15:00:00.000-08:00

What can I do if I have been wrongfully terminated?

Texas is an ‘At Will’ employment state which means that legally, any employment relationship must be voluntarily created and maintained through the free will of both employer and employee. If one party does not consent to the continuation of employment, the other cannot force the non-consenting party into such an arrangement. However, there are some circumstances under which employment can be considered unlawful under either state or federal law which may be relevant to your situation. It is illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• Without following its own stated procedure or policy

Some of the most common unlawful termination cases invovle the following:

(1) Without following its own stated procedure or policy

Companies are usually required to issue a handbook stating their policies and on termination. This would normally include formal warnings, counselling on poor performance and documentation relating to unacceptable behaviour or performance. If the company does not follow its own policies in relation to termination, then it will be considered unlawful. You should definitely check the employee handbook to see if the company has followed its own procedures for termination.

(2) Filing a safety claim

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee will anonymously complain to a state or federal agency about an unsafe work environment and be protected against employer reprisals.

However, if you have openly made your concerns about the safety of the workplace known to your employer. It is illegal under both federal and state laws to terminate an employee for filing a safety claim. The facts you have described indicate that there were a number of possible safety breaches which were occurring in your place of work and that you documented them and submitted a report. If the real reason that you were terminated was because you submitted a safety report, this is illegal and there may be remedies available to you for reinstatement.

In Texas, the Workers' Health and Safety Division of the Texas Workers' Compensation Commission provides assistance with workplace safety and health issues to employers, employees, and workers' compensation insurance carriers and policyholders. You should definitely contact this body for assistance in relation to this matter.

Finally, you should contact a local law firm to see if they will represent you in any action which you may wish to commence against the employer. They will also be able to advise you on any settlement process or procedure which you may enter into with your employer if they choose to offer compensation.

Philosophy of Law

2008-12-24T09:09:00.000-08:00

Have you ever wondered what the basic philosphies underpinning our local, regional, national and international legal systems are? It is a much debated question in academia. At the heart of all law is ultimately an ethical theory. Although there are many theories of law according to the philosophies of feminism, marxism, postmodernism, liberalism and other schools of thought at its core it appears that law may either be sourced from a positivist perspective or a natural law origin. So what are these two great theoretical schools of thought concerned with and why are they important?

Natural law

Natural law is based on a foundationalist world view. Under this understanding of law, truth is absolute and well live in an objective and knowable reality where there are certain ethical truths which are self-evident. The fundamental values of natural law may include that of human dignity and freedom, or perhaps equality. Early natural law theorists such as John Locke viewed the right to property as an essential element of natural law. The natural law theory of Locke was based on the view that God had endowed human beings with certain inalienable rights. His view can be seen to underlie the statement expressed in the US Consitution 'we hold these truths to be self evident - that all men are created equal and are endowed with certain rights and that among these rights are the rights to life, liberty and the pursuit of happiness'.

Positivism

Positivism is a jurisprudential theory which emanates from a fundamentally different philosophy. Positivists regard the law as an expression of the authority of a sovereign and under their theory, it is not so much the issue as to if the law has an ethical basis or not, it is simply the fact that the law exists as an instrument of order and control in society. This order is not necessarily just per se, but it is necessary for the function of a stable and harmonious society and the avoidance of anarchy.

So what impact can these theories have on the say to day operation of the legal system? Well, the answer is, probably not much. The only thing we can really say is that the actors within the legal system operate on certain assumptions and ideas which these theories unpack and explain. However, there is usually little comment from judges or lawyers on exactly what origins of knowledge and the philosophy of law is.

JENNIFER BRUNNER, OHIO SECRETARY OF STATE v. OHIO REPUBLICAN PARTY et al.

2008-12-22T22:42:00.000-08:00

JENNIFER BRUNNER, OHIO SECRETARY OF STATE v. OHIO REPUBLICAN PARTY et al.

on application for stay

[October 17, 2008]

Per Curiam.

On October 9, 2008, the United States District Court for the Southern District of Ohio entered a temporary restraining order (TRO) directing Jennifer Brunner, the Ohio Secretary of State, to update Ohio's Statewide Voter Registration Database (SWVRD) to comply with Section 303 of the Help America Vote Act of 2002 (HAVA), 116 Stat. 1708, 42 U. S. C. §15483(a)(5)(B)(i).* The United States Court of Appeals for the Sixth Circuit denied the Secretary's motion to vacate the TRO. The Secretary has filed an application to stay the TRO with Justice Stevens as Circuit Justice for the Sixth Circuit, and he has referred the matter to the Court. The Secretary argues both that the District Court had no jurisdiction to enter the TRO and that its ruling on the merits was erroneous. We express no opinion on the question whether HAVA is being properly implemented. Respondents, however, are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce Section 303 in an action brought by a private litigant to justify the issuance of a TRO. See Gonzaga Univ. v. Doe, 536 U. S. 273, 283 (2002); Alexander v. Sandoval, 532 U. S. 275, 286 (2001). We therefore grant the application for a stay and vacate the TRO.

It is so ordered.

FOOTNOTES

Footnote *

* Title 42 U. S. C. §15483(a)(5)(B)(i) (2000 ed., Supp. V) states, in relevant part:

"The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration."

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ANTHONY HEDGPETH, WARDEN, PETITIONER v. MICHAEL ROBERT PULIDO

2008-12-22T22:41:00.002-08:00

ANTHONY HEDGPETH, WARDEN, PETITIONER v.
MICHAEL ROBERT PULIDO

on writ of certiorari to the united states court of appeals for the ninth circuit

[December 2, 2008]

Per Curiam.

A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. See Stromberg v. California, 283 U. S. 359 (1931); Yates v. United States, 354 U. S. 298 (1957). In this case the Court of Appeals for the Ninth Circuit held that such an error is "structural error," requiring that the conviction be set aside on collateral review without regard to whether the flaw in the instructions prejudiced the defendant. The parties now agree that the Court of Appeals was wrong to categorize this type of error as "structural." They further agree that a reviewing court finding such error should ask whether the flaw in the instructions "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U. S. 619, 623 (1993) (internal quotation marks omitted). We agree as well and so hold.

Respondent Michael Pulido was convicted by a California jury of felony murder. On direct appeal, Pulido sought to vacate his conviction on the ground that the jury instructions were erroneous: They permitted the jury to find him guilty of felony murder if he formed the intent to aid and abet the underlying felony before the murder, but they also permitted the jury to find him guilty if he formed that intent only after the murder. The California Supreme Court agreed with Pulido that the latter theory was invalid under California law, but upheld the conviction on the ground that Pulido was not prejudiced by the error. People v. Pulido, 15 Cal. 4th 713, 727, 936 P. 2d 1235, 1243-1244 (1997). Pulido sought federal habeas relief, which the District Court granted after concluding that instructing the jury on the invalid theory had a " 'substantial and injurious effect or influence in determining the jury's verdict.' " Pulido v. Lamarque, No. C 99-4933 CW (RR) (ND Cal., Mar. 24, 2005), App. to Pet. for Cert. 65a-66a (quoting Brecht, supra, at 637).

The State appealed and the Court of Appeals affirmed. Pulido v. Chrones, 487 F. 3d 669 (2007) (per curiam). On appeal, Pulido argued the District Court's Brecht analysis was correct, but in the alternative sought to avoid the harmless-error inquiry altogether. In support of that alternative argument, he maintained that when a jury returns a general verdict after being instructed on both a valid and an invalid theory, the conviction must be automatically set aside, without asking whether the invalid instruction was harmless. The Court of Appeals recognized that the Brecht "substantial and injurious effect" standard governs harmless-error analysis on federal habeas, 487 F. 3d, at 673, n. 3 (internal quotation marks omitted), but agreed with Pulido that instructing a jury on multiple theories of guilt, one of which is legally improper, was "structural" error exempting the instructions as a whole from harmless-error review, id., at 675-676. Such error instead required setting aside the conviction on habeas unless the reviewing court could determine with "absolute certainty" that the defendant was convicted under a proper theory. Id., at 676 (citing Lara v. Ryan, 455 F. 3d 1080, 1086 (CA9 2006)). Because the instructions "le[ft] open the possibility" that the jury convicted Pulido on the impermissible ground, the court concluded that the verdict must be reversed. 487 F. 3d, at 676. We granted certiorari. 552 U. S. ___ (2008).

The Ninth Circuit precedent on which the Court of Appeals relied, see Lara v. Ryan, supra, based its structural-error analysis upon a line of our cases beginning with Stromberg. Stromberg addressed the validity of a general verdict that rested on an instruction that the petitioner could be found guilty for displaying a red flag as " 'a sign, symbol, or emblem of opposition to organized government, or [a]s an invitation or stimulus to anarchistic action, or [a]s [a]n aid to propaganda that is of a seditious character.' " 283 U. S., at 363. After holding that the first clause of the instruction proscribed constitutionally protected conduct, we concluded that the petitioner's conviction must be reversed because "it [wa]s impossible to say under which clause of the [instruction] the conviction was obtained." Id., at 368. In Yates v. United States, supra, we extended this reasoning to a conviction resting on multiple theories of guilt when one of those theories is not unconstitutional, but is otherwise legally flawed.

Both Stromberg and Yates were decided before we concluded in Chapman v. California, 386 U. S. 18 (1967), that constitutional errors can be harmless. Accordingly, neither Stromberg nor Yates had reason to address whether the instructional errors they identified could be reviewed for harmlessness, or instead required automatic reversal. In a series of post-Chapman cases, however, we concluded that various forms of instructional error are not structural but instead trial errors subject to harmless-error review. See, e.g., Neder v. United States, 527 U. S. 1 (1999) (omission of an element of an offense); California v. Roy, 519 U. S. 2 (1996) (per curiam) (erroneous aider and abettor instruction); Pope v. Illinois, 481 U. S. 497 (1987) (misstatement of an element of an offense); Rose v. Clark, 478 U. S. 570 (1986) (erroneous burden-shifting as to an element of an offense).

Although these cases did not arise in the context of a jury instructed on multiple theories of guilt, one of which is improper, nothing in them suggests that a different harmless-error analysis should govern in that particular context. To the contrary, we emphasized in Rose that "while there are some errors to which [harmless-error analysis] does not apply, they are the exception and not the rule." Id., at 578. And Neder makes clear that harmless-error analysis applies to instructional errors so long as the error at issue does not categorically " 'vitiat[e] all the jury's findings.' " 527 U. S., at 11 (quoting Sullivan v. Louisiana, 508 U. S. 275, 281 (1993) (erroneous reasonable-doubt instructions constitute structural error)). An instructional error arising in the context of multiple theories of guilt no more vitiates all the jury's findings than does omission or misstatement of an element of the offense when only one theory is submitted.

In fact, drawing a distinction between alternative-theory error and the instructional errors in Neder, Roy, Pope, and Rose would be "patently illogical," given that such a distinction " 'reduces to the strange claim that, because the jury ... received both a "good" charge and a "bad" charge on the issue, the error was somehow more pernicious than ... where the only charge on the critical issue was a mistaken one.' " 487 F. 3d, at 677-678 (O'Scannlain, J., concurring specially) (quoting Quigley v. Vose, 834 F. 2d 14, 16 (CA1 1987) (per curiam)); see also Becht v. United States, 403 F. 3d 541, 548 (CA8 2005) (same), cert. denied, 546 U. S. 1177 (2006).

Pulido now agrees with the State that the Court of Appeals erred by treating the instructional error in this case as structural, and that the required prejudice analysis should be governed by Brecht's "substantial and injurious effect" standard. See Brief for Respondent 17 ("[t]he Ninth Circuit was mistaken in its 'structural defect' nomenclature"); Tr. of Oral Arg. 27 ("We acknowledge that this is a trial error and is subject to the Brecht prejudice standard"). So do we.

Pulido nonetheless maintains we should affirm because the Court of Appeals effectively engaged in the Brecht analysis, despite its clear description of the error as "structural." But despite full briefing on the applicability of Brecht, the Court of Appeals mentioned Brecht only briefly in a footnote, see 487 F. 3d, at 673, n. 3, and then went on to agree with Pulido's alternative assertion that "the instructional error was structural and therefore not subject to harmless error review," id., at 675-676. The court also stated that the conviction had to be overturned unless the court was "absolutely certain" that the jury relied on a valid ground. Id., at 676. Such a determination would appear to be a finding that no violation had occurred at all, rather than that any error was harmless. In any event, an "absolute certainty" standard is plainly inconsistent with Brecht. Accordingly, we express no view on whether Pulido is entitled to habeas relief, but rather remand to the Court of Appeals for application of Brecht in the first instance.**

The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

ANTHONY HEDGPETH, WARDEN, PETITIONER v.
MICHAEL ROBERT PULIDO

on writ of certiorari to the united states court of appeals for the ninth circuit

[December 2, 2008]

Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting.

The Court of Appeals misused the term "structural error" in its opinion affirming the District Court's order granting Pulido's application for a writ of habeas corpus. But the court's misnomer was inconsequential because its decision rested on substantially the same analysis as the District Court's, which correctly applied the standards set forth in Kotteakos v. United States, 328 U. S. 750 (1946), Brecht v. Abrahamson, 507 U. S. 619 (1993), and O'Neal v. McAninch, 513 U. S. 432 (1995). The Court of Appeals' decision therefore did not warrant this Court's review and does not now merit a remand to require that court to repeat its analysis. In my opinion, the interest in expediting the conclusion of this protracted litigation outweighs the interest in correcting a misnomer.

Respondent Michael Pulido was charged with felony murder for robbing a gas station and killing the attendant. At trial, the State argued that Pulido acted alone. Pulido maintained that his uncle was the principal actor and that he had no knowledge of his uncle's plan when the two arrived at the gas station. While he was waiting in the car, Pulido claimed, he heard a shot and ran into the store. At that point, his uncle insisted that Pulido help him pry open the stolen cash register and dispose of it, and Pulido reluctantly complied. The jury convicted Pulido of felony murder, but it was unable to reach a verdict on the charges that Pulido personally used a firearm and intentionally inflicted great bodily harm.

As a matter of California law, felony-murder liability extends to all persons jointly engaged in the commission of a felony at the time of a killing when one of the joint actors kills in furtherance of the common design. People v. Pulido, 15 Cal. 4th 713, 716, 936 P. 2d 1235, 1236 (1997). But a person is not guilty of felony murder if he is only a "late-joining" aider and abettor--i.e., if he did not himself commit the murder and his participation in the underlying felony did not begin until after the victim was killed. Ibid. In this case, the trial court's instructions erroneously permitted the jury to find Pulido guilty on such a theory, as they did not require the jury to find either that Pulido committed the murder or that he aided and abetted the underlying robbery before the murder was committed. Because the instructions allowed the jury to convict Pulido of felony murder for conduct that does not amount to that offense, their inclusion was constitutional error.

On direct appeal, the California Supreme Court agreed with Pulido that the late-joiner theory was an invalid theory of felony-murder liability. Ibid. It nevertheless held that any error in the trial court's instructions was harmless. According to the court, the jury found that Pulido had been engaged in the robbery at the time of the killing because the robbery-murder special-circumstance instruction stated that "the murder was committed while the defendant was engaged" in the "commission of or attempted commission of [a] robbery." Id., at 727, 936 P. 2d, at 1243 (citing Cal. Penal Code Ann. §190.2(a)(17) (West 1992) (internal quotation marks omitted)). Based on that portion of the instruction, the court concluded that the special-circumstance verdict "demonstrates that the jury did not accept the theory that [Pulido] joined the robbery only after [the victim] was killed," and it therefore held that Pulido was not prejudiced by the error. 15 Cal. 4th, at 727, 936 P. 2d, at 1244.

In reaching that conclusion, however, the California Supreme Court failed to take into account the entire special-circumstance instruction. A typographical error in that instruction in fact permitted the jury to find the special circumstance of robbery-murder true if it found either that the murder was committed while the defendant was engaged in the commission of a robbery or that it "was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection"--a finding entirely consistent with the late-joiner theory. App. 14. Thus, as the State concedes, the erroneous instructions made it "reasonably likely" that the jury convicted Pulido on the impermissible theory. Brief for Petitioner 18.

After exhausting his state postconviction remedies,1 Pulido sought a writ of habeas corpus in Federal District Court. The District Court recognized the erroneous disjunctive in the special-circumstance instruction that the California Supreme Court had overlooked, and it held that the state court's conclusion that Pulido was not prejudiced by erroneous instructions was "an objectively unreasonable application of clearly established federal law." App. to Pet. for Cert. 64a.

The District Court then considered the effect of that error on the jury. Correctly relying on Brecht, the District Court began its analysis by noting that a federal habeas petitioner "is not entitled to habeas relief unless the State court's error resulted in actual prejudice, that is, the error had a 'substantial and injurious effect or influence in determining the jury's verdict.' " App. to Pet. for Cert. 65a (quoting Brecht, 507 U. S., at 637). If an error had a substantial influence, or if "the record is so evenly balanced that a conscientious judge is in 'grave doubt' " as to whether it had such an effect, the conviction must be reversed. App. to Pet. for Cert. 65a. (quoting O'Neal, 513 U. S., at 438).

To determine whether the error was harmless under this standard, the District Court scrutinized the record, including the arguments of both parties, the evidence supporting their respective theories of the case, the jury instructions, the jury's questions to the trial court, and the various parts of the jury's verdict. App. to Pet. for Cert. 65a-66a. Throughout this inquiry, the District Court properly avoided substituting its judgment for the jury's. As we cautioned in Kotteakos, in undertaking harmless-error analysis "it is not the [reviewing] court's function to determine guilt or innocence. Nor is it to speculate upon probable reconviction and decide according to how the speculation comes out." 328 U. S., at 763 (citations omitted). Thus, "[t]he inquiry cannot be merely whether there was enough to support the result" in the absence of the error. Id., at 765. Rather, the proper question is "whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Ibid.; accord, O'Neal, 513 U. S., at 437.

That was precisely the question addressed by the District Court when it sought to ascertain what the jury actually found. The court concluded that, while it is "possible" that the jury found that Pulido aided and abetted the robbery before the victim was killed, the court had "no way of determining whether this was the case." App. to Pet. for Cert. 66a. Because that uncertainty left the court with " 'grave doubt as to the likely effect of [the] error on the jury's verdict,' " it faithfully applied the standard mandated by Kotteakos and O'Neal and found that the error was not harmless. App. to Pet. for Cert. 66a. (quoting O'Neal, 513 U. S., at 435).

On appeal, Pulido contended that the judgment of the District Court should be affirmed whether the instructional error was viewed as structural error or as trial error. Brief of Appellee and Cross-Appellant in Nos. 05-15916, 05-16308 (CA9), pp. 53-64 (hereinafter Appellee's Brief). He argued that the error was not harmless under Brecht and O'Neal because the substantial evidence that supported the invalid theory made it likely that the jury convicted him on that basis. Appellee's Brief 55-64. In particular, Pulido noted that the "injurious effect" of this type of error "is greatest when the instruction compromises the defense by appearing to extend liability even to the factual scenario suggested by the defense evidence," as was true in this case. Id., at 57 (internal quotation marks omitted and emphasis deleted). At oral argument, the parties' contentions similarly focused on the Brecht standard and the result that harmless-error analysis required.

Less than two months after oral argument, and before the Court of Appeals issued its decision in this case, a different panel of the Ninth Circuit decided Lara v. Ryan, 455 F. 3d 1080 (2006). Lara was convicted of attempted murder by a jury that had been instructed that it could find him guilty under either an express malice theory or an implied malice theory, the second of which is legally invalid. Id., at 1082. The Ninth Circuit described the erroneous instruction as a "structural error," but it held that such an error does not necessitate reversal when a reviewing court can "determine with absolute certainty" that the defendant was not convicted under the erroneous theory. Id., at 1086. Because the jury "made a specific finding that Lara attempted to murder willfully, deliberately, and with premeditation," the court concluded that it necessarily relied on the valid instruction and that reversal was therefore not required. Id., at 1086-1087.

In those limited instances in which this Court has found an error "structural," we have done so because the error defies analysis by harmless-error standards. See Arizona v. Fulminante, 499 U. S. 279, 309 (1991); see also United States v. Gonzalez-Lopez, 548 U. S. 140, 150 (2006) (quoting Sullivan v. Louisiana, 508 U. S. 275, 282 (1993); United States v. Cronic, 466 U. S. 648, 659, and n. 25 (1984)). Indeed, it is because the consequences " 'are necessarily unquantifiable and indeterminate' " that automatic reversal is required when such errors occur. Gonzalez-Lopez, 548 U. S., at 150 (quoting Sullivan, 508 U. S., at 282). That the court in Lara could be " 'absolutely certain' that the jury relied upon the legally correct theory," 455 F. 3d, at 1085, shows both that the error was susceptible of harmless-error analysis and that the court in fact found the error harmless despite repeatedly referring to it as "structural."

Citing Lara, the Court of Appeals' per curiam opinion labeled the erroneous instruction in this case a structural error.2 As in Lara, the court then undertook a searching review of the parties' evidence and the jury instructions to determine the error's effect on the jury. Noting, among other things, that "[t]he typographical error in the contemporaneity instruction relied upon by the California Supreme Court introduces doubt into any inference to be drawn from the jury's finding as to the special circumstance," the court concluded that "the jury instructions leave open the possibility that the jury convicted Pulido on a legally impermissible theory." Pulido v. Chrones, 487 F. 3d 669, 676 (CA9 2007). That possibility of reliance on the erroneous instruction is the "substantial and injurious effect" to which Brecht refers. Thus, although the Court of Appeals called the error in this case by the wrong name, it performed substantially the same analysis and reached the same conclusion as the District Court did when it applied the standard prescribed by Brecht.3

Judge Thomas concurred separately both to defend the Lara decision and to demonstrate that harmless-error analysis also supports the panel's result. 487 F. 3d, at 678-683. Unlike the District Court, Judge Thomas applied the harmless-error standard announced in Chapman v. California, 386 U. S. 18 (1967), instead of looking to Brecht. 487 F. 3d, at 678. But his analysis similarly establishes that at least some jurors very likely relied on the impermissible late-joiner theory. Id., at 679-683.

The record before us clearly supports that conclusion. Indeed, even petitioner admits that the ambiguity in the robbery and murder instructions and the trial court's confusing answers to the jury's questions "combined to make it reasonably likely that the jury applied the instructions in an unconstitutional way." Brief for Petitioner 18. That reasonable likelihood is sufficient to support the conclusion that the error was not harmless under Brecht.

Because the District Court's analysis was correct and the Court of Appeals' result was substantially the same, I think this Court's decision to remand for the purpose of obtaining a third analysis of the harmless-error issue is a misuse of scarce judicial resources. I would therefore affirm the judgment of the Court of Appeals.

FOOTNOTES

Footnote *

* The dissent maintains the Court of Appeals "undertook a searching review of the parties' evidence and the jury instructions to determine the error's effect on the jury." Post, at 6 (opinion of Stevens, J.). But the Court of Appeals reached its conclusion based solely on the existence of a typographical error in the special circumstances instructions, without addressing any of the State's arguments that the typographical error was harmless in light of the record as a whole. There was no need for that court to address those arguments, of course, because of its mistaken conclusion that the instructional error was structural. Under such circumstances, remand is the appropriate course.

FOOTNOTES

Footnote 1

The California Supreme Court summarily denied Pulido's state petition for a writ of habeas corpus. See Pulido v. Chrones, 487 F. 3d 669, 672 (CA9 2007) (per curiam).

Footnote 2

The Court of Appeals' opinion asserts that Pulido argued that the error was structural under Lara v. Ryan, 455 F. 3d 1080 (CA9 2006). But due to the timing of the Lara decision, the parties did not raise arguments relying on that precedent until their postargument supplemental briefing. As discussed above, the parties' arguments had initially focused on the proper application of Brecht v. Abrahamson, 507 U. S. 619 (1993).

Footnote 3

The Court of Appeals in fact cited Brecht and recited the proper standard in a footnote before turning its attention to Lara: "If there is a constitutional error, we consider whether the error was harmless; that is, whether the error had a ' "substantial and injurious effect or influence in determining the jury's verdict." ' " 487 F. 3d, at 673, n. 3.

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GREENLAW v. UNITED STATES

2008-12-22T22:41:00.001-08:00

GREENLAW v. UNITED STATES

certiorari to the united states court of appeals for the eighth circuit

No. 07-330. Argued April 15, 2008--Decided June 23, 2008

Petitioner Greenlaw was convicted of seven drug and firearms charges and was sentenced to imprisonment for 442 months. In calculating this sentence, the District Court made an error. Overlooking this Court's controlling decision in Deal v. United States, 508 U. S. 129, 132-137, interpreting 18 U. S. C. §924(c)(1)(C)(i), and over the Government's objection, the District Court imposed a 10-year sentence on a count that carried a 25-year mandatory minimum term. Greenlaw appealed urging, inter alia, that the appropriate sentence for all his convictions was 15 years. The Government neither appealed nor cross-appealed. The Eighth Circuit found no merit in any of Greenlaw's arguments, but went on to consider whether his sentence was too low. The court acknowledged that the Government, while it had objected to the trial court's error at sentencing, had elected not to seek alteration of Greenlaw's sentence on appeal. Nonetheless, relying on the "plain-error rule" stated in Federal Rule of Criminal Procedure 52(b), the Court of Appeals ordered the District Court to enlarge Greenlaw's sentence by 15 years, yielding a total prison term of 662 months.

Held: Absent a Government appeal or cross-appeal, the Eighth Circuit could not, on its own initiative, order an increase in Greenlaw's sentence. Pp. 5-17.

(a) In both civil and criminal cases, in the first instance and on appeal, courts follow the principle of party presentation, i.e., the parties frame the issues for decision and the courts generally serve as neutral arbiters of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant's rights. See Castro v. United States, 540 U. S. 375, 381-383. The cross-appeal rule, pivotal in this case, is both informed by, and illustrative of, the party presentation principle. Under that rule, it takes a cross-appeal to justify a remedy in favor of an appellee. See McDonough v. Dannery, 3 Dall. 188. This Court has called the rule "inveterate and certain," Morley Constr. Co. v. Maryland Casualty Co., 300 U. S. 185, 191, and has in no case ordered an exception to it, El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 480. No exception is warranted here. Congress has specified that when a United States Attorney files a notice of appeal with respect to a criminal sentence, "[t]he Government may not further prosecute [the] appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General." 18 U. S. C. §3742(b). This provision gives the top representatives of the United States in litigation the prerogative to seek or forgo appellate correction of sentencing errors, however plain they may be. Pp. 5-8.

(b) The Eighth Circuit held that the plain-error rule, Fed. Rule Crim. Proc. 52(b), authorized it to order the sentence enhancement sua sponte. Nothing in the text or history of Rule 52(b), or in this Court's decisions, suggests that the plain-error rule was meant to override the cross-appeal requirement. In every case in which correction of a plain error would result in modifying a judgment to the advantage of a party who did not seek this Court's review, the Court has invoked the cross-appeal rule to bar the correction. See, e.g., Chittenden v. Brewster, 2 Wall. 191; Strunk v. United States, 412 U. S. 434. Even if it would be proper for an appeals court to initiate plain-error review in some cases, sentencing errors that the Government has refrained from pursuing would not fit the bill. In §3742(b), Congress assigned to leading Department of Justice officers responsibility for determining when Government pursuit of a sentencing appeal is in order. Rule 52(b) does not invite appellate court interference with the assessment of those officers. Pp. 8-10.

(c) Amicus curiae, invited by the Court to brief and argue the case in support of the Court of Appeals' judgment, links argument based on Rule 52(b) to similar argument based on 28 U. S. C. §2106. For substantially the same reasons that Rule 52(b) does not override the cross-appeal rule, §2106 does not do so either. P. 10.

(d) Amicus also argues that 18 U. S. C. §3742, which governs appellate review of criminal sentences, overrides the cross-appeal rule for sentences "imposed in violation of law," §3742(e). Amicus' construction of §3742 is novel and complex, but ultimately unpersuasive. At the time §3742 was enacted, the cross-appeal rule was a solidly grounded rule of appellate practice. Congress had crafted explicit exceptions to the cross-appeal rule in earlier statutes governing sentencing appeals, i.e., the Organized Crime Control Act of 1970 and the Controlled Substances Act of 1970. When Congress repealed those exceptions and enacted §3742, it did not similarly express in the text of §3742 any exception to the cross-appeal rule. This drafting history suggests that Congress was aware of the cross-appeal rule and framed §3742 expecting that the new provision would operate in harmony with it. Pp. 10-13.

(e) In increasing Greenlaw's sentence sua sponte, the Eighth Circuit did not advert to the procedural rules setting firm deadlines for launching appeals and cross-appeals. See Fed. Rules App. Proc. 3(a)(1), 4(b)(1)(B)(ii), 4(b)(4), 26(b). The strict time limits on notices of appeal and cross-appeal serve, as the cross-appeal rule does, the interests of the parties and the legal system in fair warning and finality. The time limits would be undermined if an appeals court could modify a judgment in favor of a party who filed no notice of appeal. In a criminal prosecution, moreover, the defendant would appeal at his peril, with nothing to alert him that, on his own appeal, his sentence would be increased until the appeals court so decreed. Pp. 13-15.

(f) Nothing in this opinion requires courts to modify their current practice in "sentencing package cases" involving multicount indictments and a successful attack on some but not all of the counts of conviction. The appeals court, in such cases, may vacate the entire sentence on all counts so that the trial court can reconfigure the sentencing plan. On remand, trial courts have imposed a sentence on the remaining counts longer than the sentence originally imposed on those particular counts, but yielding an aggregate sentence no longer than the aggregate sentence initially imposed. This practice is not at odds with the cross-appeal rule, which stops appellate judges from adding years to a defendant's sentence on their own initiative. In any event, this is not a "sentencing package" case. Greenlaw was unsuccessful on all his appellate issues. The Eighth Circuit, therefore, had no occasion to vacate his sentence and no warrant, in the absence of a cross-appeal, to order the addition of 15 years to his sentence. Pp. 15-16.

481 F. 3d 601, vacated and remanded.

Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Stevens, J., joined, and in which Breyer, J., joined as to Parts I, II, and III.

MICHAEL GREENLAW, aka MIKEY, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

[June 23, 2008]

Justice Ginsburg delivered the opinion of the Court.

This case concerns the role of courts in our adversarial system. The specific question presented: May a United States Court of Appeals, acting on its own initiative, order an increase in a defendant's sentence? Petitioner Michael J. Greenlaw was convicted of various offenses relating to drugs and firearms, and was sentenced to imprisonment for 442 months. He appealed urging, inter alia, that his sentence was unreasonably long. After rejecting all of Greenlaw's arguments, the Court of Appeals determined, without Government invitation, that the applicable law plainly required a prison sentence 15 years longer than the term the trial court had imposed. Accordingly, the appeals court instructed the trial court to increase Greenlaw's sentence to 622 months. We hold that, absent a Government appeal or cross-appeal, the sentence Greenlaw received should not have been increased. We therefore vacate the Court of Appeals' judgment.

I

Greenlaw was a member of a gang that, for years, controlled the sale of crack cocaine in a southside Minneapolis neighborhood. See United States v. Carter, 481 F. 3d 601, 604 (CA8 2007) (case below). To protect their drug stash and to prevent rival dealers from moving into their territory, gang members carried and concealed numerous weapons. See id., at 605. For his part in the operation, Greenlaw was charged, in the United States District Court for the District of Minnesota, with eight offenses; after trial, he was found guilty on seven of the charges. App. to Pet. for Cert. 16a-17a.

Among Greenlaw's convictions were two for violating 18 U. S. C. §924(c)(1)(A), which prohibits carrying a firearm during and in relation to a crime of violence or a drug trafficking crime: His first §924(c) conviction was for carrying a firearm in connection with a crime committed in 1998; his second, for both carrying and discharging a firearm in connection with a crime committed in 1999. App. to Pet. for Cert. 17a. A first conviction for violating §924(c) carries a mandatory minimum term of 5 years, if the firearm is simply carried. §924(c)(1)(A)(i). If the firearm is also discharged, the mandatory minimum increases to 10 years. §924(c)(1)(A)(iii). For "a second or subsequent conviction," however, whether the weapon is only carried or discharged as well, the mandatory minimum jumps to 25 years. §924(c)(1)(C)(i). Any sentence for violating §924(c), moreover, must run consecutively to "any other term of imprisonment," including any other conviction under §924(c). §924(c)(1)(D)(ii).

At sentencing, the District Court made an error. Over the Government's objection, the court held that a §924(c) conviction does not count as "second or subsequent" when it is "charged in the same indictment" as the defendant's first §924(c) conviction. App. 59, 61-62. The error was plain because this Court had held, in Deal v. United States, 508 U. S. 129 (1993), that when a defendant is charged in the same indictment with more than one offense qualifying for punishment under §924(c), all convictions after the first rank as "second or subsequent," see id., at 132-137.

As determined by the District Court, Greenlaw's sentence included 262 months (without separately counting sentences that ran concurrently) for all his convictions other than the two under §924(c). For the first §924(c) offense, the court imposed a 5-year sentence in accord with §924(c)(1)(A)(i). As to the second §924(c) conviction, the District Court rejected the Government's request for the 25-year minimum prescribed in §924(c)(1)(C) for "second or subsequent" offenses; instead, it imposed the 10-year term prescribed in §924(c)(1)(A)(iii) for first-time offenses.1 The total sentence thus calculated came to 442 months.

Greenlaw appealed to the United States Court of Appeals for the Eighth Circuit, urging, inter alia, that the appropriate total sentence for all his crimes was 15 years. See 481 F. 3d, at 607. The Court of Appeals found no merit in any of Greenlaw's arguments. Id., at 606-607. Although the Government did not appeal or cross-appeal, id., at 608, it did note, on brief and at oral argument, the District Court's error: Greenlaw's sentence should have been 15 years longer than the 442 months imposed by the District Court, the Government observed, because his second §924(c) conviction called for a 25-year (not a 10-year) mandatory minimum consecutive sentence.

The Government made the observation that the sentence was 15 years too short only to counter Greenlaw's argument that it was unreasonably long. See App. 84-86; Recording of Oral Arg. in United States v. Carter, No. 05-3391, (CA8, Sept. 26, 2006), at 16:53-19:04, available at http://www.ca8.uscourts.gov/oralargs/oaFrame.html (as visited June 13, 2008). Having refrained from seeking correction of the District Court's error by pursuing its own appeal, the Government simply urged that Greenlaw's sentence should be affirmed.

The Court of Appeals acknowledged that the Government, while objecting at sentencing to the trial court's erroneous reading of §924(c)(1)(C), had elected to seek no appellate court alteration of Greenlaw's sentence. 481 F. 3d, at 608. Relying on the "plain-error rule" stated in Federal Rule of Criminal Procedure 52(b), however, the appeals court held that it had discretion to raise and correct the District Court's error on its own initiative. 481 F. 3d, at 608-609. The Court of Appeals therefore vacated the sentence and instructed the District Court "to impose the [statutorily mandated] consecutive minimum sentence of 25 years." Id., at 611.

Petitioning for rehearing and rehearing en banc, Greenlaw asked the Eighth Circuit to adopt the position advanced by the Seventh Circuit in United States v. Rivera, 411 F. 3d 864 (2005). App. 95. "By deciding not to take a cross-appeal," the Seventh Circuit stated, "the United States has ensured that [the defendant's] sentence cannot be increased." 411 F. 3d, at 867. The Eighth Circuit denied rehearing without an opinion. App. to Pet. for Cert. 28a. On remand, as instructed by the Court of Appeals, the District Court increased Greenlaw's sentence by 15 years, yielding a total prison term of 622 months. App. 103-104, 109.

Greenlaw petitioned for certiorari noting a division among the Circuits on this question: When a defendant unsuccessfully challenges his sentence as too high, may a court of appeals, on its own initiative, increase the sentence absent a cross-appeal by the Government? In response, the Government "agree[d] with [Greenlaw] that the court of appeals erred in sua sponte remanding the case with directions to enhance petitioner's sentence." Brief in Opposition 12. We granted review and invited Jay T. Jorgensen to brief and argue this case, as amicus curiae, in support of the Court of Appeals' judgment. 552 U. S. ___ (2008). Mr. Jorgensen accepted the appointment and has well fulfilled his assigned responsibility.

II

In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant's rights. See Castro v. United States, 540 U. S. 375, 381-383 (2003).2 But as a general rule, "[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief." Id., at 386 (Scalia, J., concurring in part and concurring in judgment).3 As cogently explained:

"[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us." United States v. Samuels, 808 F. 2d 1298, 1301 (CA8 1987) (R. Arnold, J., concurring in denial of reh'g en banc).

The cross-appeal rule, pivotal in this case, is both informed by, and illustrative of, the party presentation principle. Under that unwritten but longstanding rule, an appellate court may not alter a judgment to benefit a nonappealing party. This Court, from its earliest years, has recognized that it takes a cross-appeal to justify a remedy in favor of an appellee. See McDonough v. Dannery, 3 Dall. 188, 198 (1796). We have called the rule "inveterate and certain." Morley Constr. Co. v. Maryland Casualty Co., 300 U. S. 185, 191 (1937).

Courts of Appeals have disagreed, however, on the proper characterization of the cross-appeal rule: Is it "jurisdictional," and therefore exceptionless, or a "rule of practice," and thus potentially subject to judicially created exceptions? Compare, e.g., Johnson v. Teamsters Local 559, 102 F. 3d 21, 28-29 (CA1 1996) (cross-appeal rule "is mandatory and jurisdictional"), with, e.g., American Roll-On Roll-Off Carrier, LLC v. P & O Ports Baltimore, Inc., 479 F. 3d 288, 295-296 (CA4 2007) ("cross-appeal requirement [is] one of practice, [not] a strict jurisdictional requirement"). Our own opinions contain statements supporting both characterizations. Compare, e.g., Morley Constr. Co., 300 U. S., at 187 (cross-appeal rule defines "[t]he power of an appellate court to modify a decree" (emphasis added)), with, e.g., Langnes v. Green, 282 U. S. 531, 538 (1931) (cross-appeal requirement is "a rule of practice which generally has been followed").

In El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 480 (1999), we declined to decide "the theoretical status" of the cross-appeal rule. It sufficed to point out that the rule was "firmly entrenched" and served to advance "institutional interests in fair notice and repose." Ibid. "Indeed," we noted, "in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule." Ibid. Following the approach taken in Neztsosie, we again need not type the rule "jurisdictional" in order to decide this case.

Congress has eased our decision by specifying the instances in which the Government may seek appellate review of a sentence, and then adding this clear instruction: Even when a United States Attorney files a notice of appeal with respect to a sentence qualifying for review, "[t]he Government may not further prosecute [the] appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General." 18 U. S. C. §3742(b). Congress thus entrusted to named high-ranking officials within the Department of Justice responsibility for determining whether the Government, on behalf of the public, should seek a sentence higher than the one imposed. It would severely undermine Congress' instruction were appellate judges to "sally forth" on their own motion, cf. supra, at 5, to take up errors adverse to the Government when the designated Department of Justice officials have not authorized an appeal from the sentence the trial court imposed.4

This Court has recognized that "the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." United States v. Nixon, 418 U. S. 683, 693 (1974). We need not decide whether comparable authority and discretion are lodged in the Executive Branch with respect to the pursuit of issues on appeal. We need only recognize that Congress, in §3742(b), has accorded to the top representatives of the United States in litigation the prerogative to seek or forgo appellate correction of sentencing errors, however plain they may be. That measure should garner the Judiciary's full respect.

III

A

In ordering the District Court to add 15 years to Greenlaw's sentence, despite the absence of a cross-appeal by the Government, the Court of Appeals identified Federal Rule of Criminal Procedure 52(b) as the source of its authority. See 481 F. 3d, at 608-609, and n. 5. Rule 52(b) reads: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Nothing in the text or history of Rule 52(b) suggests that the rulemakers, in codifying the plain-error doctrine, meant to override the cross-appeal requirement. See Advisory Committee's Notes on Fed. Rule Crim. Proc. 52, 18 U. S. C. App., p. 1664 (describing Rule 52(b) as "a restatement of existing law").

Nor do our opinions support a plain-error exception to the cross-appeal rule. This Court has indeed noticed, and ordered correction of, plain errors not raised by defendants, but we have done so only to benefit a defendant who had himself petitioned the Court for review on other grounds. See, e.g., Silber v. United States, 370 U. S. 717 (1962) (per curiam). In no case have we applied plain-error doctrine to the detriment of a petitioning party. Rather, in every case in which correction of a plain error would result in modification of a judgment to the advantage of a party who did not seek this Court's review, we have invoked the cross-appeal rule to bar the correction.

In Chittenden v. Brewster, 2 Wall. 191 (1865), for example, the appellants asserted that an award entered in their favor was too small. A prior decision of this Court, however, made it plain that they were entitled to no award at all. See id., at 195-196 (citing Jones v. Green, 1 Wall. 330 (1864)). But because the appellee had not filed a cross-appeal, the Court left the award undisturbed. See 2 Wall., at 196. Strunk v. United States, 412 U. S. 434 (1973), decided over a century later, is similarly illustrative. There, the Court of Appeals had determined that the defendant was denied his right to a speedy trial, but held that the proper remedy was reduction of his sentence as compensation for the delay, not dismissal of the charges against him. As petitioner in this Court, the defendant sought review of the remedial order. See id., at 435. The Court suggested that there may have been no speedy trial violation, as "it seem[ed] clear that [the defendant] was responsible for a large part of the ... delay." Id., at 436. But because the Government had not raised the issue by cross-petition, we considered the case on the premise that the defendant had been deprived of his Sixth Amendment right, id., at 437, and ruled that dismissal of the indictment was the proper remedy, id., at 439-440.

Even if there might be circumstances in which it would be proper for an appellate court to initiate plain-error review, sentencing errors that the Government refrained from pursuing would not fit the bill. Heightening the generally applicable party presentation principle, Congress has provided a dispositive direction regarding sentencing errors that aggrieve the Government. In §3742(b), as earlier explained, see supra, at 7, Congress designated leading Department of Justice officers as the decisionmakers responsible for determining when Government pursuit of a sentencing appeal is in order. Those high officers, Congress recognized, are best equipped to determine where the Government's interest lies. Rule 52(b) does not invite appellate court interference with their assessment.

B

Amicus supporting the Eighth Circuit's judgment links the argument based on Rule 52(b) to a similar argument based on 28 U. S. C. §2106. See Brief for Amicus Curiae by Invitation of the Court 40-43 (hereinafter Jorgensen Brief). Section 2106 states that federal appellate courts "may affirm, modify, vacate, set aside or reverse any judgment ... lawfully brought before it for review." For substantially the same reasons that Rule 52(b) does not override the cross-appeal requirement, §2106 does not do so either. Section 2106 is not limited to plain errors, much less to sentencing errors in criminal cases--it applies to all cases, civil and criminal, and to all errors. Were the construction amicus offers correct, §2106 would displace the cross-appeal rule cross-the-board. The authority described in §2106, we have observed, "must be exercised consistent with the requirements of the Federal Rules of Civil Procedure as interpreted by this Court." Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U. S. 394, 402-403, n. 4 (2006). No different conclusion is warranted with respect to the "inveterate and certain" cross-appeal rule. Morley Constr. Co., 300 U. S., at 191.

C

In defending the Court of Appeals judgment, amicus places heavy weight on an argument pinned not to Rule 52(b) or 28 U. S. C. §2106, but to the text of 18 U. S. C. §3742, the Criminal Code provision governing appellate review of criminal sentences. As amicus reads §3742, once either party appeals a sentence, the Court of Appeals must remand "any illegal sentence regardless of whether the remand hurts or helps the appealing party." Jorgensen Brief 9. Congress so directed, amicus argues, by instructing that, upon review of the record, a court of appeals "shall determine ... whether the sentence was imposed in violation of law," §3742(e) (emphasis added), and "shall remand" if it so determines, §3742(f)(1) (2000 ed., Supp. V) (emphasis added). See Jorgensen Brief 10-11, and n. 3.

Amicus makes a further text-based observation. He notes that §3742(f)(2)--the provision covering sentences "outside the applicable [G]uideline range"--calls for a remand only where a departure from the Federal Sentencing Guidelines harms the appellant. In contrast, amicus emphasizes, §3742(f)(1)--the provision controlling sentences imposed "in violation of law" and Guideline application errors--contains no such appellant-linked limitation. The inference amicus draws from this distinction is that Congress intended to override the cross-appeal rule for sentences controlled by §3742(f)(1), i.e., those imposed "in violation of law" (or incorrectly applying the Guidelines), but not for Guideline departure errors, the category covered by §3742(f)(2). See id., at 14-15.

This novel construction of §3742, presented for the first time in the brief amicus filed in this Court,5 is clever and complex, but ultimately unpersuasive. Congress enacted §3742 in 1984. See Sentencing Reform Act, §213(a), 98 Stat. 2011. At that time, the cross-appeal requirement was a solidly grounded rule of appellate practice. See supra, at 6. The inference properly drawn, we think, is that Congress was aware of the cross-appeal rule, and framed §3742 expecting that the new provision would operate in harmony with the "inveterate and certain" bar to enlarging judgments in favor of an appellee who filed no cross-appeal. Cf. Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991) ("Congress is understood to legislate against a background of common-law adjudicatory principles.").

Congress indicated awareness of the cross-appeal rule in an earlier measure, the Organized Crime Control Act of 1970 (OCCA), Pub. L. 91-452, 84 Stat. 922, which provided for review of sentences of "dangerous special offenders." See §1001(a), id., at 948-951. For that Act, Congress crafted an explicit exception to the cross-appeal rule. It ordered that an appeal of a sentence taken by the Government "shall be deemed the taking of [an appeal] by the defendant." Id., at 950. But the "deeming" ran in only one direction: "[A] sentence may be made more severe" OCCA provided, "only on review ... taken by the United States." Id., at 950-951.6 When Congress repealed this provision and, in §3742, broadly provided for appellate review of sentences, it did not similarly express in the new text any exception to the cross-appeal rule. In short, Congress formulated a precise exception to the cross-appeal rule when that was its intention. Notably, the exception Congress legislated did not expose a defendant to a higher sentence in response to his own appeal. Congress spoke plainly in the 1970 legislation, leaving nothing for a court to infer. We therefore see no reason to read the current statute in the inventive manner amicus proposes, inferring so much from so little.

Amicus' reading of §3742, moreover, would yield some strange results. We note two, in particular. Under his construction, §3742 would give with one hand what it takes away with the other: §3742(b) entrusts to certain Government officials the decision whether to appeal an illegally low sentence, see supra, at 7; but according to amicus, §§3742(e) and (f) would instruct appellate courts to correct an error of that order on their own initiative, thereby trumping the officials' decision. We resist attributing to Congress an intention to render a statute so internally inconsistent. Cf. Western Air Lines, Inc. v. Board of Equalization of S. D., 480 U. S. 123, 133 (1987) ("The illogical results of applying [a proffered] interpretation ... argue strongly against the conclusion that Congress intended th[o]se results[.]"). Further, the construction proposed by amicus would draw a puzzling distinction between incorrect applications of the Sentencing Guidelines, controlled by §3742(f)(1), and erroneous departures from the Guidelines, covered by §3742(f)(2). The latter would be subject to the cross-appeal rule, the former would not. We do not see why Congress would want to differentiate Guidelines decisions this way.7

D

In increasing Greenlaw's sentence by 15 years on its own initiative, the Eighth Circuit did not advert to the procedural rules setting deadlines for launching appeals and cross-appeals. Unyielding in character, these rules may be seen as auxiliary to the cross-appeal rule and the party presentation principle served by that rule. Federal Rule of Appellate Procedure 3(a)(1) provides that "[a]n appeal permitted by law ... may be taken only by filing a notice of appeal ... within the [prescribed] time." (Emphasis added.) Complementing Rule 3(a)(1), Rule 4(b)(1)(B)(ii) instructs that, when the Government has the right to cross-appeal in a criminal case, its notice "must be filed ... within 30 days after ... the filing of a notice of appeal by any defendant." (Emphasis added.) The filing time for a notice of appeal or cross-appeal, Rule 4(b)(4) states, may be extended "for a period not to exceed 30 days." Rule 26(b) bars any extension beyond that time.

The firm deadlines set by the Appellate Rules advance the interests of the parties and the legal system in fair notice and finality. Thus a defendant who appeals but faces no cross-appeal can proceed anticipating that the appellate court will not enlarge his sentence. And if the Government files a cross-appeal, the defendant will have fair warning, well in advance of briefing and argument, that pursuit of his appeal exposes him to the risk of a higher sentence. Given early warning, he can tailor his arguments to take account of that risk. Or he can seek the Government's agreement to voluntary dismissal of the competing appeals, see Fed. Rule App. Proc. 42(b), before positions become hardened during the hours invested in preparing the case for appellate court consideration.

The strict time limits on notices of appeal and cross-appeal would be undermined, in both civil and criminal cases, if an appeals court could modify a judgment in favor of a party who filed no notice of appeal. In a criminal prosecution, moreover, the defendant would appeal at his peril, with nothing to alert him that, on his own appeal, his sentence would be increased until the appeals court so decreed. In this very case, Greenlaw might have made different strategic decisions had he known soon after filing his notice of appeal that he risked a 15-year increase in an already lengthy sentence.

E

We note that nothing we have said in this opinion requires courts to modify their current practice in so-called "sentencing package cases." Those cases typically involve multicount indictments and a successful attack by a defendant on some but not all of the counts of conviction. The appeals court, in such instances, may vacate the entire sentence on all counts so that, on remand, the trial court can reconfigure the sentencing plan to assure that it remains adequate to satisfy the sentencing factors in 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In remanded cases, the Government relates, trial courts have imposed a sentence on the remaining counts longer than the sentence originally imposed on those particular counts, but yielding an aggregate sentence no longer than the aggregate sentence initially imposed. See Brief for United States 23, n. 11 (citing, inter alia, United States v. Pimienta-Redondo, 874 F. 2d 9 (CA1 1989) (en banc)). Thus the defendant ultimately may gain nothing from his limited success on appeal, but he will also lose nothing, as he will serve no more time than the trial court originally ordered.

The practice the Government describes is not at odds with the cross-appeal rule, which stops appellate judges from adding years to a defendant's sentence on their own initiative. It simply ensures that the sentence " 'will suit not merely the offense but the individual defendant.' " Pimienta-Redondo, 874 F. 2d, at 14 (quoting Wasman v. United States, 468 U. S. 559, 564 (1984)). And the assessment will be made by the sentencing judge exercising discretion, not by an appellate panel ruling on an issue of law no party tendered to the court.8

This is not a "sentencing package" case. Greenlaw was unsuccessful on all his appellate issues. There was no occasion for the Court of Appeals to vacate his sentence and no warrant, in the absence of a cross-appeal, to order the addition of 15 years to his sentence.9

* * *

For the reasons stated, the judgment of the United States Court of Appeals for the Eighth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

MICHAEL GREENLAW, aka MIKEY, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

[June 23, 2008]

Justice Breyer, concurring in the judgment.

I agree with Justice Alito that the cross-appeal requirement is simply a rule of practice for appellate courts, rather than a limitation on their power, and I therefore join Parts I-III of his opinion. Moreover, as a general matter, I would leave application of the rule to the courts of appeals, with our power to review their discretion "seldom to be called into action." Universal Camera Corp. v. NLRB, 340 U. S. 474, 490 (1951). But since this case is now before us, I would consider whether the Court of Appeals here acted properly. Primarily for the reasons stated by the majority in footnote 9 of its opinion, I believe that the court abused its discretion in sua sponte increasing petitioner's sentence. Our precedent precludes the creation of an exception to the cross-appeal requirement based solely on the obviousness of the lower court's error. See, e.g., Chittenden v. Brewster, 2 Wall. 191, 195-196 (1865). And I cannot see how the interests of justice are significantly disserved by permitting petitioner's release from prison at roughly age 62, after almost 37 years behind bars, as opposed to age 77.

MICHAEL GREENLAW, aka MIKEY, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

[June 23, 2008]

Justice Alito, with whom Justice Stevens joins, and with whom Justice Breyer joins as to Parts I, II, and III, dissenting.

I respectfully dissent because I view the cross-appeal requirement as a rule of appellate practice. It is akin to the rule that courts invoke when they decline to consider arguments that the parties have not raised. Both rules rest on premises about the efficient use of judicial resources and the proper role of the tribunal in an adversary system. Both are sound and should generally be followed. But just as the courts have made them, the courts may make exceptions to them, and I do not understand why a reviewing court should enjoy less discretion to correct an error sua sponte than it enjoys to raise and address an argument sua sponte. Absent congressional direction to the contrary, and subject to our limited oversight as a supervisory court, we should entrust the decision to initiate error correction to the sound discretion of the courts of appeals.

I

Before laying out my view in more detail, I must first address the question whether federal courts have subject-matter jurisdiction to enlarge an appellee's judgment in the absence of a cross-appeal. Because the Court would not recognize any exceptions to the cross-appeal requirement when the defendant appeals his sentence, it does not decide that question. See ante, at 7. I must confront it, though I do not regard it as a substantial question. The cross-appeal requirement seems to me a prime example of a " 'rule of practice,' subject to exceptions, not an unqualified limit on the power of appellate courts." El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 480 (1999). While a court should generally enforce the cross-appeal requirement, a departure from it would not divest the court of jurisdiction.

This Court has never addressed whether an appellate court's jurisdiction to enlarge a judgment in favor of an appellee is contingent on a duly filed cross-appeal. The majority's contention that "[o]ur own opinions contain statements supporting" the " 'jurisdictional' " characterization of the requirement, ante, at 6, relies on a misreading of that precedent. The Court may have previously characterized the cross-appeal requirement as limiting " '[t]he power of an appellate court to modify a decree,' " ibid. (quoting Morley Constr. Co. v. Maryland Casualty Co., 300 U. S. 185, 187 (1937)), but it does not follow that jurisdiction is conditioned on a properly filed cross-appeal. A court may lack the power to do something for reasons other than want of jurisdiction, and a rule can be inflexible without being jurisdictional. See Eberhart v. United States, 546 U. S. 12, 19 (2005) (per curiam).

The jurisdiction of the courts of appeals is fixed by Congress. See Bowles v. Russell, 551 U. S. ___, ___ (2007) (slip op., at 6); Ankenbrandt v. Richards, 504 U. S. 689, 698 (1992) (" '[T]he judicial power of the United States ... is (except in enumerated instances, applicable exclusively to this Court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress' " (quoting Cary v. Curtis, 3 How. 236, 245 (1845))). If Congress wants to withhold from the courts of appeals the power to decide questions that expand the rights of nonappealing parties, it may do so. See U. S. Const., Art. III, §1 (authorizing Congress to establish the lower courts and, by corollary, to fix their jurisdiction); Kontrick v. Ryan, 540 U. S. 443, 452 (2004) ("Only Congress may determine a lower federal court's subject-matter jurisdiction"). The jurisdictional question thus reduces to whether Congress intended to make a cross-appeal a condition precedent to the appellate court's jurisdiction to enlarge a judgment in favor of a nonappealing party.

As always with such questions, the text of the relevant statute provides the best evidence of congressional intent. The relevant statute in this case is 18 U. S. C. §3742 (2000 ed. and Supp. V). Section 3742(a) authorizes a criminal defendant to "file a notice of appeal" to review a sentence that was, among other possibilities, "imposed in violation of law." E.g., §3742(a)(1). Section 3742(b) provides parallel authority for the Government to "file a notice of appeal" to review unlawful sentences. E.g., §3742(b)(1). The statute conditions the Government's authority to further prosecute its appeal on "the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General." §3742(b).

Nothing in this language remotely suggests that a court of appeals lacks subject-matter jurisdiction to increase a defendant's sentence in the absence of a cross-appeal by the Government. In fact, the statute does not even mention cross-appeals. It separately authorizes either party to "file a notice of appeal," but it never suggests that the reviewing court's power is limited to correcting errors for the benefit of the appealing party. If anything, it suggests the opposite. Without qualifying the appellate court's power in any way, §3742(e) instructs the court to determine, among other things, whether the sentence was "imposed in violation of law." §3742(e)(1). And while §3742(f)(2) limits the action that a court of appeals can take depending on which party filed the appeal, compare §3742(f)(2)(A) (sentences set aside as "too high" if defendant filed) with §3742(f)(2)(B) (sentences set aside as "too low" if Government filed), no such limitation appears in §3742(f)(1). That paragraph requires a court of appeals simply to set aside any sentence "imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines."

II

Since a cross-appeal has no effect on the appellate court's subject-matter jurisdiction, the cross-appeal requirement is best characterized as a rule of practice. It is a rule created by the courts to serve interests that are important to the Judiciary. The Court identifies two of these interests: notice to litigants and finality. Ante, at 14; see also Neztsosie, supra, at 480. One might add that the cross-appeal requirement also serves a third interest: the appellate court's interest in being adequately briefed on the issues that it decides. See Fed. Rule App. Proc. 28.1(c) and Advisory Committee's Notes, 28 U. S. C. App., pp. 615-616. Although these are substantial interests in the abstract, I question how well an inflexible cross-appeal requirement serves them.

Notice. With respect to notice, the benefits of an unyielding cross-appeal requirement are insubstantial. When the Government files a notice of cross-appeal, the defendant is alerted to the possibility that his or her sentence may be increased as a result of the appellate decision. But if the cross-appeal rule is, as I would hold, a strong rule of practice that should be followed in all but exceptional instances, the Government's failure to file a notice of cross-appeal would mean in the vast majority of cases that the defendant thereafter ran little risk of an increased sentence. And the rare cases where that possibility arose would generally involve errors so plain that no conceivable response by the defendant could alter the result. It is not unreasonable to consider an appealing party to be on notice as to such serious errors of law in his favor. And while there may be rare cases in which the existence of such a legal error would come as a complete surprise to the defendant or in which argument from the parties would be of assistance to the court, the solution to such a problem is not to eliminate the courts of appeals' authority to correct egregious errors. Rather, the appropriate response is for the court of appeals to request supplemental briefing or--if it deems that insufficient--simply to refuse to exercise its authority. Cf. Irizarry v. United States, 553 U. S. ___, ___ (2008) (slip op., at 9). In short, the Court's holding does not increase the substance of the notice that a defendant receives; it merely accelerates that notice by at most a few weeks in a very small number of cases.

The Court contends that "[g]iven early warning, [the defendant] can tailor his arguments to take account of [the risk of a higher sentence] ... [o]r he can seek the Government's agreement to voluntary dismissal of the competing appeals." Ante, at 14 (citing Fed. Rule App. Proc. 42(b)). But the Court does not explain how a notice of cross-appeal, a boilerplate document, helps the defendant "tailor his arguments." Whether the cross-appeal rule is ironclad, as the Court believes, or simply a strong rule of practice, a defendant who wishes to appeal his or her sentence is always free to seek the Government's commitment not to cross-appeal or to terminate a cross-appeal that the Government has already taken. Fed. Rule App. Proc. 42(b).

Finality. An inflexible cross-appeal rule also does little to further the interest of the parties and the Judiciary in the finality of decisions. An appellate court's decision to grant a nonappealing party additional relief does not interrupt a long, undisturbed slumber. The error's repose begins no earlier than the deadline for filing a cross-appeal, and it ends as soon as the reviewing court issues its opinion--and often much sooner. Here, for example, the slumber was broken when the Government identified the error in its brief as appellee. See Brief for United States 5.

Orderly Briefing. I do not doubt that adversarial briefing improves the quality of appellate decisionmaking, but it hardly follows that appellate courts should be denied the authority to correct errors that seriously prejudice nonappealing parties. Under my interpretation of the cross-appeal rule, a court of appeals would not be obligated to address errors that are prejudicial to a nonappealing party; a court of appeals would merely have the authority to do so in appropriate cases. If a court of appeals noticed such an error and concluded that it was appropriate to address the issue, the court could, if it wished, order additional briefing. If, on the other hand, the court concluded that the issue was not adequately addressed by the briefs filed by the parties in the ordinary course and that additional briefing would interfere with the efficient administration of the court's work, the court would not be required to decide the issue. Therefore, I do not see how the courts of appeals' interest in orderly briefing is furthered by denying those courts the discretionary authority to address important issues that they find it appropriate to decide.

Indeed, the inflexible cross-appeal rule that the Court adopts may disserve the interest in judicial efficiency in some cases. For example, correcting an error that prejudiced a nonappealing defendant on direct review might obviate the need for a collateral attack. Cf. Granberry v. Greer, 481 U. S. 129, 134 (1987) (allowing the Court of Appeals to address the merits of an unexhausted habeas corpus petition if "the interests of comity and federalism will be better served by addressing the merits forthwith [than] by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim"); Munaf v. Geren, 553 U. S. ___, ___ (2008) (slip op., at 13) (recognizing "occasions ... when it is appropriate to proceed further and address the merits" of a habeas corpus petition rather than reverse and remand on threshold matters). Because the reviewing court is in the best position to decide whether a departure from the cross-appeal rule would be efficient, rigid enforcement of that rule is more likely to waste judicial resources than to conserve them.

In sum, the Court exaggerates the interests served by the cross-appeal requirement. At the same time, it overlooks an important interest that the rule disserves: the interest of the Judiciary and the public in correcting grossly prejudicial errors of law that undermine confidence in our legal system. We have repeatedly stressed the importance of that interest, see, e.g., United States v. Olano, 507 U. S. 725, 736-737 (1993); Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U. S. 501, 507 (1984); New York Central R. Co. v. Johnson, 279 U. S. 310, 318 (1929), and it has justified departures from our traditional adversary framework in other contexts. The Court mentions one of those contexts, see ante, at 5 (pro se litigation), but there are others that deserve mention.

The most well-known is plain-error review. Federal Rule of Criminal Procedure 52(b) authorizes reviewing courts to correct "[a] plain error that affects substantial rights ... even though it was not brought to the court's attention." Although I agree with the Court that this Rule does not independently justify the Eighth Circuit's decision, see ante, at 8-9, I believe that the Rule's underlying policy sheds some light on the issue before us. We have explained that courts may rely on Rule 52(b) to correct only those plain errors that " 'seriously affec[t] the fairness, integrity or public reputation of judicial proceedings.' " Olano, supra, at 736 (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)). We have thus recognized that preservation of the "fairness, integrity or public reputation of judicial proceedings" may sometimes justify a departure from the traditional adversarial framework of issue
presentation.

Perhaps the closest analogue to the cross-appeal requirement is the rule of appellate practice that restrains reviewing courts from addressing arguments that the parties have not made. Courts typically invoke this rule to avoid resolving a case based on an unaired argument, even if the argument could change the outcome. See, e.g., Santiago v. Rumsfeld, 425 F. 3d 549, 552, n. 1 (CA9 2005); United States v. Cervini, 379 F. 3d 987, 994, n. 5 (CA10 2004). But courts also recognize that the rule is not inflexible, see, e.g., Santiago, supra, at 552, n. 1, and sometimes they depart from it, see, e.g., United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 448 (1993) ("After giving the parties ample opportunity to address the issue, the Court of Appeals acted without any impropriety in refusing to accept what in effect was a stipulation on a question of law" (citing Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 289 (1917))); United States v. Moyer, 282 F. 3d 1311, 1317-1318 (CA10 2002); Dorris v. Absher, 179 F. 3d 420, 425-426 (CA6 1999).

A reviewing court will generally address an argument sua sponte only to correct the most patent and serious errors. See, e.g., id., at 426 (concluding that the error, if overlooked, would result in "a miscarriage of justice"); Consumers Union of U. S., Inc. v. Federal Power Comm'n, 510 F. 2d 656, 662 (CADC 1974) (balancing "considerations of judicial orderliness and efficiency against the need for the greatest possible accuracy in judicial decisionmaking"). Because the prejudicial effect of the error and the impact of error correction on judicial resources are matters best determined by the reviewing court, the court's decision to go beyond the arguments made by the parties is committed to its sound discretion. See United States Nat. Bank of Ore., supra, at 448 (reviewing an appellate court's decision to address an argument sua sponte for abuse of discretion).

This authority provides a good model for our decision in this case. The Court has not persuaded me that the interests at stake when a reviewing court awards a nonappealing party additional relief are qualitatively different from the interests at stake when a reviewing court raises an issue sua sponte. Authority on the latter point recognizes that the interest of the public and the Judiciary in correcting grossly prejudicial errors of law may sometimes outweigh other interests normally furthered by fidelity to our adversarial tradition. I would recognize the same possibility here. And just as reviewing courts enjoy discretion to decide for themselves when to raise and decide arguments sua sponte, I would grant them substantial latitude to decide when to enlarge an appellee's judgment in the absence of a cross-appeal.1

III

The approach I advocate is not out of step with our precedent. The Court has never decided whether the cross-appeal requirement is "subject to exceptions [or] an unqualified limit on the power of appellate courts." Neztsosie, 526 U. S., at 480. That question was reserved in Neztsosie, ibid., even as the Court recognized that lower courts had reached different conclusions, see id., at 480, n. 2. I would simply confirm what our precedent had assumed: that there are exceptional circumstances when it is appropriate for a reviewing court to correct an error for the benefit of a party that has not cross-appealed the decision below.

Indeed, the Court has already reached the very result that it claims to disavow today. We have long held that a sentencing court confronted with new circumstances may impose a stiffer sentence on remand than the defendant received prior to a successful appeal. See Chaffin v. Stynchcombe, 412 U. S. 17, 23 (1973); North Carolina v. Pearce, 395 U. S. 711, 719-720 (1969), overruled on other grounds, Alabama v. Smith, 490 U. S. 794 (1989). The Court makes no effort to explain the analytical difference between those cases and this one. If a sentencing court may rely on new circumstances to justify a longer sentence on remand, why cannot one of the new circumstances be the court's discovery (by dint of appellate review) that its first sentence was based on an error of law?2

Even today, the Court refuses to decide whether the cross-appeal requirement admits of exceptions in appropriate cases. While calling the rule " 'inveterate and certain,' " ante, at 6 (quoting Morley Constr. Co., 300 U. S., at 191), the Court allows that "there might be circumstances in which it would be proper for an appellate court to initiate plain-error review," ante, at 9; see also ante, at 5, n. 2. The Court's mandate is limited to a single class of cases--sentencing appeals, and then only when the appeal is brought by the Government.

The Court justifies the asymmetry in its decision by pointing to 18 U. S. C. §3742(b), which provides that "[t]he Government may not further prosecute [the] appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General." According to the majority, "[i]t would severely undermine Congress' instruction were appellate judges to 'sally forth' on their own motion to take up errors adverse to the Government when the designated Department of Justice officials have not authorized an appeal from the sentence the trial court imposed." Ante, at 7 (citation omitted).

The problem with this argument is that §3742(b) does not apportion authority over sentencing appeals between the Executive and Judicial Branches. By its terms, §3742(b) simply apportions that authority within an executive department. It provides that the "[t]he Government" may not "prosecute" the appeal without approval from one of the listed officials. It says nothing about the power of the courts to correct error in the absence of a Government appeal. Had Congress intended to restrict the power of the courts, the statute would not stop "[t]he Government" from "prosecut[ing]" unauthorized appeals; instead, it would stop "the Court of Appeals" from "deciding" them.

The design that the Court imputes to the drafters of §3742(b) is inconsistent with the text in another important respect. Suppose that the District Court imposes a sentence below the range set forth in the Federal Sentencing Guidelines, and the Government files an authorized appeal on the ground that the sentence is unreasonable. Suppose further that the reviewing court discovers, to the surprise of both parties, that the District Court made a further error by overlooking a mandatory minimum to which the defendant was subject. The mandatory minimum would raise the defendant's sentence beyond what even the Government had wanted. Under the majority's theory, see ante, at 7, the reviewing court should not remand for imposition of the mandatory minimum, since the decision to seek the higher sentence belonged to the Government alone. But that conclusion is plainly at odds with the text of the statute, which imposes no limits on sentencing review once the named officials have signed off on the appeal.

Section 3742(b)'s limited effect on sentencing review implies that the statute was not designed to prevent judicial encroachment on the prerogatives of the Executive. It is more likely that Congress wanted to withhold from the Executive the power to force the courts of appeals to entertain Government appeals that are not regarded as sufficiently important by the leadership of the Department of Justice. Allowing the courts of appeals, in their discretion, to remedy errors not raised in a cross-appeal in no way trenches on the authority of the Executive. Section 3742(b) may have also been designed to serve the Executive's institutional interests. Congress may have wanted to ensure that the Government maintained a consistent legal position across different sentencing appeals. Or perhaps Congress wanted to maximize the impact of the Government's sentencing appeals by giving high-level officials the authority to nix meritless or marginal ones. These institutional interests of the Executive do not undermine the Judiciary's authority to correct unlawful sentences in the absence of a Government appeal, and they do not justify the Court's decision today.

IV

For the reasons given above, I would hold that the courts of appeals enjoy the discretion to correct error sua sponte for the benefit of nonappealing parties. The Court errs in vacating the judgment of the Eighth Circuit, and I respectfully dissent.3

FOOTNOTES

Footnote 1

The court added 10 years rather than 5 based on the jury's finding that the firearm Greenlaw carried in connection with the second §924(c) offense had been discharged. See App. 44-45, 59-60.

Footnote 2

Because this case does not present the issue, we take no position on whether correction of an error prejudicial to a nonappealing criminal defendant might be justified as a measure to obviate the need for a collateral attack. See post, at 6-7.

Footnote 3

Cf. Kaplan, Civil Procedure--Reflections on the Comparison of Systems, 9 Buffalo L. Rev. 409, 431-432 (1960) (U. S. system "exploits the free-wheeling energies of counsel and places them in adversary confrontation before a detached judge"; "German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal").

Footnote 4

The dissent reads §3742(b) not as a restraint on sua sponte error correction by appellate courts, but simply as apportioning "authority within an executive department." Post, at 11; see post, at 13 ("[P]erhaps Congress wanted to ... giv[e] high-level officials the authority to nix meritless or marginal [sentencing appeals]."). A statute is hardly needed to establish the authority of the Attorney General and Solicitor General over local U. S. Attorneys on matters relating to the prosecution of criminal cases, including appeals of sentences. It seems unlikely, moreover, that Congress, having lodged discretion in top-ranking Department of Justice officers, meant that discretion to be shared with more than 200 appellate judges.

Footnote 5

An appellee or respondent may defend the judgment below on a ground not earlier aired. See United States v. American Railway Express Co., 265 U. S. 425, 435 (1924) ("[T]he appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record[.]").

Footnote 6

The Controlled Substances Act of 1970, §409(h), 84 Stat. 1268-1269, contained matching instructions applicable to "dangerous special drug offender[s]." The prescriptions in both Acts were replaced by §3742. See Sentencing Reform Act of 1984, §§212(2), 213(a), 219, 98 Stat. 1987, 2011, 2027.

Footnote 7

In rejecting the interpretation of §§3742(e) and (f) proffered by amicus, we take no position on the extent to which the remedial opinion in United States v. Booker, 543 U. S. 220 (2005), excised those provisions. Compare Rita v. United States, 551 U. S. ___, ___ (2007) (slip op., at 2) (Stevens, J., concurring) (Booker excised only the portions of §3742(e) that required de novo review by courts of appeals), with 551 U. S., at ___ (slip op., at 17) (Scalia, J., concurring in part and concurring in judgment) (Booker excised all of §§3742(e) and (f)). See also Kimbrough v. United States, 552 U. S. ___, ___ (2007) (slip op., at 3) (Thomas, J., dissenting) (the Booker remedial opinion, whatever it held, cannot be followed).

Footnote 8

The dissent suggests that our reading of the cross-appeal rule is anomalous because it could bar a court of appeals from correcting an error that would increase a defendant's sentence, but after a "successful" appeal the district court itself could rely on that same error to increase the sentence. See post, at 10-11, and n. 2. The cross-appeal rule, we of course agree, does not confine the trial court. But default and forfeiture doctrines do. It would therefore be hard to imagine a case in which a district court, after a court of appeals vacated a criminal sentence, could properly increase the sentence based on an error the appeals court left uncorrected because of the cross-appeal rule. What of cases remanded post-Booker on defendants' appeals, the dissent asks? Post, at 10-11, n. 2. In those cases, defendants invited and received precisely the relief they sought, and the Sixth Amendment required. Neither the cross-appeal rule nor default and forfeiture had any role to play.

Footnote 9

For all its spirited argument, the dissent recognizes the narrow gap between its core position and the Court's. The cross-appeal rule, rooted in the principle of party presentation, the dissent concedes, should hold sway in the "vast majority of cases." Post, at 4. Does this case qualify as the "rare" exception to the "strong rule of practice" the dissent advocates? See ibid. Greenlaw was sentenced to imprisonment for 442 months. The Government might have chosen to insist on 180 months more, but it elected not to do so. Was the error so "grossly prejudicial," post, at 7, 9, so harmful to our system of justice, see post, at 7-8, as to warrant sua sponte correction? By what standard is the Court of Appeals to make such an assessment? Without venturing to answer these questions, see post, at 13, n. 3, the dissent would simply "entrust the decision to initiate error correction to the sound discretion of the courts of appeals," post, at 1. The "strong rule" thus may be broken whenever the particular three judges composing the appellate panel see the sentence as a "wron[g] to right." See supra, at 5 (internal quotation marks omitted). The better answer, consistent with our jurisprudence, as reinforced by Congress, entrusts "the decision [whether] to initiate error correction" in this matter to top counsel for the United States. See supra, at 7.

FOOTNOTES

Footnote 1

The Court argues that petitioner's original sentence was neither so fundamentally unfair nor so harmful to our system of justice as to warrant sua sponte correction by the Court of Appeals. Ante, at 16, n. 9. But these considerations, which may well support a conclusion that the Court of Appeals should not have exercised its authority in this case, cf. n. 3, infra, surely do not justify the Court's broad rule that sua sponte error correction on behalf of the Government is inappropriate in all cases.

Footnote 2

The Court finds it "hard to imagine a case in which a district court, after a court of appeals vacated a criminal sentence, could properly increase the sentence based on an error the appeals court left uncorrected because of the cross-appeal rule." Ante, at 16, n. 8. Happily, we need not imagine such cases, since they come before our courts every day.

For examples, we have no further to look than the sentencing cases remanded en masse following our recent decision in United States v. Booker, 543 U. S. 220 (2005). In Booker's wake, it was common for newly convicted defendants to appeal their sentences, claiming that they received enhancements that they would not have received under the advisory guidelines. Many of those cases were remanded for resentencing, and some defendants wound up with even longer sentences on remand. See, e.g., United States v. Singletary, 458 F. 3d 72, 77 (CA2) (affirming a sentence lengthened by 12 months following a Booker remand), cert. denied, 549 U. S. 1047 (2006); United States v. Reinhart, 442 F. 3d 857, 860-861 (CA5 2006) (affirming a sentence lengthened from 210 months to 235 months following a Booker
remand).

These cases represent straightforward applications of the cross-appeal rule: The Government had not cross-appealed the sentence, so the reviewing court did not order the defendant's sentence lengthened. And yet the sentence was ultimately lengthened when the error was corrected on remand. The Court fails to explain the conceptual distinction between those cases and this one. If the Court permits sentencing courts to correct unappealed errors on remand, why does it not permit the courts of appeals to do the same on appeal?

Footnote 3

Neither the parties nor our amicus have addressed whether, under the assumption that the Court of Appeals enjoys discretion to initiate error correction for the benefit of a nonappealing party, the Eighth Circuit abused that discretion in this case. As framed by petitioner, the question presented asked only whether the cross-appeal requirement is subject to exceptions. Because the parties have not addressed the fact-bound subsidiary question, I would affirm without reaching it. See United States v. International Business Machines Corp., 517 U. S. 843, 855, n. 3 (1996).

GILES v. CALIFORNIA

2008-12-22T22:40:00.002-08:00

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 introduce 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 Confrontation 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 doctrine 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. 3-20; 22-24.

(a) Common-law courts allowed the introduction of statements by an absent witness who was "detained" or "kept away" by "means or procurement" 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. 4-7.

(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. 7-11.

(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 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. 11-14.

(d) The dissent's contention that no testimony would come in at common law under a forfeiture theory unless it was confronted is not supported 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. 15-20.

(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 subsequent 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. 23-24.

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., and Alito, J., filed concurring opinions. Souter, J., filed an opinion concurring in part, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens and Kennedy, JJ., joined.

DWAYNE GILES, PETITIONER v. CALIFORNIA

on writ of certiorari to the supreme court
of california

[June 25, 2008]

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.

I

On September 29, 2002, petitioner Dwayne Giles shot his ex-girlfriend, Brenda Avie, outside the garage of his grandmother'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 earlier. 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 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' objection, the trial court admitted these statements into evidence under a provision of California law that permits admission 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 appealed. 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 confrontation 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 unavailable 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. ___ (2008).

II

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Amendment contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present 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 accusing Giles of assault were testimonial. But it maintains (as did the California Supreme Court) that the Sixth Amendment did not prohibit prosecutors from introducing the statements 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 unavailable to testify at trial. We held in Crawford that the Confrontation 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 testimonial 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 unconfronted statements admitted at Giles' trial when she was 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) ("detained"); 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 (K. 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," provided a basis to read testimony previously given at a coroner's inquest. 6 How. St. Tr., at 770-771. Courts and commentators 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 confronted 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 "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 Dictionary of the English Language (1828) (defining "procure" as "to contrive and effect" (emphasis added)); ibid. (defining "procure" as "to 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 confrontation 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 Dictionary 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 witness was kept away by the defendant's "means and contrivance." 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 Evidence 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, "ingeniously endeavoring the accomplishment of anything," "the bringing to pass by planning, scheming, or stratagem," or "[a]daption of means to an end; design, intention," 3 Oxford English Dictionary, supra, at 850.1

An 1858 treatise made the purpose requirement more explicit 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 (1st ed. 1858) (emphasis added). The wrongful-procurement exception was invoked in a manner 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 typical murder case involving accusatorial statements by the victim--the testimony was excluded unless it was confronted or fell within the dying-declaration exception. Prosecutors do not appear to have even argued that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial.

Consider King v. Woodcock. William Woodcock was accused 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 witnesses 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 prisoner 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 apprehension of death," id., at 504, 168 Eng. Rep., at 354, or determined for itself that Woodcock was "quietly resigned and submitting to her fate" and admitted her statements into evidence, 1 E. East, Pleas of the Crown 356 (1803).

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 deposition--as in Woodcock, under oath--"of the facts and circumstances which had attended the outrage committed upon her." 2 Leach, at 561, 168 Eng. Rep., at 383. George Dingler's attorney argued that the statements did not qualify as dying declarations and were not admissible Marian examinations 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." Id., 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, independent of the information or declarations of the deceased, was 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 defendant 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 satisfactory, 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 evidence 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 doctor 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 his right to object to the witness's testimony on confrontation grounds, but not on hearsay grounds. See Brief for Respondent 23-24. No case or treatise that we have found, however, suggested that a defendant who committed wrongdoing 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 authorities 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 Practices" to which these statements referred was conduct designed 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 mysterious 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.

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 American 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 forfeiture 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 authorities 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 conduct 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, Harrison's Case, and Scaife--described itself as "content with" the "long-established usage" of the forfeiture principle, and admitted prior confronted statements under circumstances where admissibility was open to no doubt under Lord Morley's Case. Reynolds, supra, at 158-159.

If the State's rule had an 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 inculpated 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 theory without evidence that the defendant had acted with the purpose of preventing the witness from testifying was decided 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 of 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 requirement of intent "means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable." 5 C. Mueller & L. Kirkpatrick, 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 S. Brown, McCormick on Evidence 176 (6th ed. 2006).2 The 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 Criminal 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 language 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 uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant 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.

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 admission of Marian depositions--which the defendant would have had the opportunity to confront--but not for the admission of unconfronted testimony. See post, at 15.

That explanation is not supported by the cases. In Harrison's Case, the leading English case finding wrongful procurement, the witness's statements were admitted without regard to confrontation. An agent of the defendant had attempted 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 before 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

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 140 (1756). But if the defendant could keep out unconfronted prior testimony of a wrongfully detained 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 instigation; 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 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 confrontation, 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. McNaughton rev. 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. Williams 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 coroner's inquests that lacked one.

The leading American case on forfeiture of the confrontation right by wrongful procurement was our 1879 decision in Reynolds. That case does not set forth prior confrontation 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 indication 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 of 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 wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he kept away. . . . [The Constitution] grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot 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 constitutional 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 citing 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 unconfronted statements introduced at trial to have been testimonial, 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 instruction 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 unconfronted 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 procurement 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 narrow 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. Id., at 68. If the forfeiture doctrine did not admit unconfronted prior testimony at common law, the conclusion must be, not that the forfeiture doctrine requires no specific intent in order to render unconfronted testimony available, but that unconfronted testimony is subject to no forfeiture doctrine at all.5

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 exceptions that it thinks consistent with the policies underlying the confrontation guarantee, regardless of how that guarantee was historically understood. The "basic purposes and objectives" of forfeiture doctrine, it says, require that a defendant 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 4.

If we were to reason from the "basic purposes and objectives" 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, 547 U. S., 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 considers 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

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 5 (discussing common-law doctrine that prohibits the murderer from collecting insurance on the life of his victim, or an inheritance from the victim's estate); post, at 6 (noting that many criminal 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 extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed--but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen. It "does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts." Crawford, supra, 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 excluded 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 constitutional rights of criminal defendants is not in the State's arsenal.

The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution--rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended 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 25, 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 application of the forfeiture doctrine. This view of the law was error, but the court is free to consider evidence of the defendant'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.

DWAYNE GILES, PETITIONER v. CALIFORNIA

on writ of certiorari to the supreme court
of california

[June 25, 2008]

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 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 dissenting in part).

Nonetheless, in this case respondent does not argue that the contested evidence is nontestimonial, ante, at 3; 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.

DWAYNE GILES, PETITIONER v. CALIFORNIA

on writ of certiorari to the supreme court
of california

[June 25, 2008]

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 Confrontation 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 statement 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.

DWAYNE GILES, PETITIONER v. CALIFORNIA

on writ of certiorari to the supreme court
of california

[June 25, 2008]

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 witness'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 homicide, 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 preponderance 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 Justice Breyer's careful examinations of the historical record tells me that the early cases on the exception were not calibrated 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 domestic 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, reveals two things that count in favor of the Court's understanding 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 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 relationship 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.

DWAYNE GILES, PETITIONER v. CALIFORNIA

on writ of certiorari to the supreme court
of california

[June 25, 2008]

Justice Breyer, with whom Justice Stevens and Justice Kennedy join, dissenting.

In Crawford v. Washington, 541 U. S. 36 (2004), we held that the Sixth Amendment's Confrontation Clause bars admission against a criminal defendant of an un-cross-examined "testimonial" statement that an unavailable witness previously 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 defendant) had choked her, "opened a folding knife," and "threatened to kill her." Ante, at 2 (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 defendant's claim of self-defense and impeach his testimony, the State introduced into evidence the witness' earlier uncross-examined statements (as state hearsay law permits it to do) to help rebut the defendant's claim of self-defense. It is important to underscore that this case is premised on the assumption, 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." 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, admitting 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, procured 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 prisoner "had resorted to a contrivance to keep the witness out of the way," Queen v. Scaife, 17 Ad. E. 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 means or procurement of the prisoner." Williams v. State, 19 Ga. 403. And in 1878, this Court held that "if a witness is absent by [the defendant's] . . . own wrongful procurement, he cannot complain" 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 . . . 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 "established 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 criminal law and evidence, and the need for a rule that can be applied without creating great practical difficulties and evidentiary 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 practice," 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 procurement," 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) (examinations 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 purposes 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 assure that the prisoner "shall never be admitted to shelter himself by such evil Practices on the Witness, that being to give him Advantage of his own Wrong." Id., at 214-215. This Court's own leading case explained 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 practice," 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 history of physical abuse that is not consistent with the defendant's claim that he killed her in self-defense?

Third, related areas of the law motivated by similar equitable principles treat forfeiture or its equivalent similarly. The common law, for example, prohibits a life insurance beneficiary 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 jurisprudence 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 beneficiary "feloniously kills the insured, irrespective of the purpose." 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 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 felonious 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 ("[T]his 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 Process: 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) ("[I]t 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 knowledge is sufficient to show the intent that law ordinarily demands. 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 intended it.' " Allen v. United States, 164 U. S. 492, 496 (1896); see United States v. Aguilar, 515 U. S. 593, 613 (1995) (Scalia, J., dissenting) ("[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 his conduct" and "he is aware that it is practically certain that his conduct will cause such a result"); Restatement (Second) of Torts §8A (1977) ("The word 'intent' is used throughout . . . to denote that the actor desires to cause consequences of his act, or that he believes that the consequences 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 murdering 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 (2003).

This principle applies here. Suppose that a husband, H, knows that after he assaulted his wife, W, she gave statements to the police. Based on the fact that W gave statements to the police, H also knows that it is possible he will be tried for assault. If H then kills W, H cannot avoid responsibility 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 unavailability to testify at any future trial was a certain consequence 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 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 motive, a desire to keep the witness from trial. See ante, at 5-6 (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 prevent 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 5. And there
is no reason to believe that application of the rule of for-
feiture constitutes an exception 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 problems. Consider H who assaults W, knows she has complained 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 victim's earlier statements to police from the jury).

Moreover, the majority's insistence upon a showing of purpose or motive cannot be squared with the exception's basically ethical objective. If H, by killing W, is able to keep W's testimony out of court, then he has successfully "take[n] 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 statements against him. That inequity exists whether the defendant'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 (a) the defendant who assaults his wife and subsequently threatens her with harm if she testifies, with (b) 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 undoubtedly the greater wrong) can. This is anomalous, particularly 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 demonstrate, 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 exceptions 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 aggravate 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 because there is no evidence that H was focused on his future trial when he killed her. There is no reason to do so.

Consider also that California's hearsay rules authorize admission of the out-of-court statement of an unavailable declarant where the statement describes or explains the "infliction 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 (Supp. 2008). Where a victim's statement is not "testimonial," perhaps because she made it to a nurse, the statement could come into evidence under this rule. But where the statement is made formally to a police officer, the majority'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 830, n. 5 ("[F]ormality is indeed essential 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 reliability exist. Those exceptions have evolved over time, see 2 K. Brown, McCormick on Evidence §326 (2006) (discussion the development of the modern hearsay rule); Fed. Rule Evid. 102 ("[T]hese rules shall be construed to secure . . . promotion of growth and development of the law of evidence"), often in a direction that permits admission of hearsay 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 witness as to just what the declarant said and as to the surrounding circumstances, while those circumstances themselves 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 determine 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 13-14, 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 suggests would be advisable. The majority's rule, which requires 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 2-3. 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 "legitimate 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 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 defendant's specific purpose. Id., at 159.

Rather than limit forfeiture to instances where the defendant's act has absence of the witness as its purpose, the relevant 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 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 causation, not motive or purpose. Id., 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" implies purpose or motive is unpersuasive. See Brief for Petitioner 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 nothing about motive or purpose. 2 N. Webster, An American Dictionary of the English Language (1828); see also 2 C. 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 "contrivance" fares no better. See ante, at 6 (citing, e.g., 1 J. Chitty, A Practical Treatise on the Criminal Law 81 (1816) (hereinafter Chitty) ("kept away by the means and contrivance 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 means or procurement 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 treatise 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 statements, not simply the victim's testimonial statements, could be introduced into evidence. Here we deal only with a constitutional 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.

B

Given the absence of any evidence squarely requiring purpose 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 7-10. 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 showing the contrary--at least not where there are other plausible explanations for that absence. And there are such explanations 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 witness was dead, the common law admitted a Marian statement. See, e.g., Lord Morley's Case, supra, at 770-77 (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 prisoner, [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 evidence of the fact"); J. Archbold, A Summary of the Law Relative 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 pursuant to a forfeiture rule.

Historical authorities also tell us that a Marian statement could not be admitted unless it was a proper Marian deposition, 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 Procedure §§1194-1195, pp. 1020-1022 (2d ed. 1913) (hereinafter Bishop); Lord Fenwick's Case, 13 Haw., at 602. Thus, in a murder trial, where the witness was dead, either the Marian statement was proper and it came into evidence without 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 7-9. 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 account 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 the witness had died) on the ground that they were not properly taken Marian statements, i.e., not made in the presence of the defendant. Because admission pursuant to the forfeiture 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 account, 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 admitted them into evidence. 1 Leach, at 504, 168 Eng. Rep., at 354; see 1 E. East, Pleas of the Crown 356 (1803) (reprinted 2004). In Dingler, because the Crown admitted that the statements were not made "under apprehension of immediate 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 9 (citing United States v. Woods, 28 F. Cas. 762, 763 (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 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 majority'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 abusive 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." See J. Langbein, The Origins of Adversary Criminal Trial 248 (2003).

Regardless, the first explanation--that the forfeiture doctrine could not have helped admit an improperly taken Marian 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 forfeiture 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, Substantive Criminal Law §5.2(a), at 341 ("the traditional 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 majority's conclusion. A dying declaration can come into evidence when it is "made in extremity" under a sense of impending 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 10. 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 purpose 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 forfeiture was powerless to help. That is why we find lawyers in "dying declaration" cases arguing that the dying declaration 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, supra, 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 declaration of a party conscious of approaching dissolution"); King v. Radbourne, 1 Leach 457, 46-461, 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" admitted 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, Evidence §1431, p. 277, n. 2 (J. Chadbourn rev. 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 killing 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.

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 statements without regard to whether they were confronted. See ante, at 15-19. That being so, the majority's argument goes, one must wonder why no one argued for admissibility under the forfeiture rule in, say, Woodcock or Dingler. See ante, at 7-11. The reason, the majority concludes, is that the forfeiture rule would not have helped secure admission 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 7. 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 unconfronted statements.

Fenwick's Case, see ante, at 16 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 generally 13 How. St. Tr. 537. Hence it is not clear that Parliament admitted unconfronted statements pursuant to a forfeiture theory. In fact, the forfeiture rule in a felony case was described in Fenwick's Case as applying where the witness "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 before him as well.

Harrison's Case, see ante, at 15-16, did admit an unconfronted statement, but it was a statement made before a coroner. See 12 How. St. Tr., at 852. Coroner's statements seem to have had special status that may sometimes have 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 authorities "flatly rejected any special status for coroner statements").

The American case upon which the majority primarily relies, Rex v. Barber, 1 Root 76 (Conn. Super. Ct. 1775), see ante, at 16, 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 admitted 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 (explaining 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 illustration" of this principle cases before a committing magistrate including Barber); J. Stephen, A Digest 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. 403 (1856), see ante, at 17, involved the admission of an "examination" taken by "the committing magistrate." Such examinations were ordinarily given in the presence of the defendant. See R. Greene & J. Lumpkin, Georgia Justice 99 (1835) (describing 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 accuser 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 development. 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 foundation 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 common law" supports its view. Ante, at 14. As I have shown, that is not so. See supra, at 3-4. The majority 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 14. As I have pointed out, this absence 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 defendant 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 14-15. The majority, describing its next argument as "conclusive," points to "innumerable cases" where courts did not admit "unconfronted inculpatory testimony by murder victims" against a defendant. Ante, at 14-15. 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 9. But as I have explained, the forfeiture rule would have been unhelpful under these circumstances. See supra, at 18. Finally, 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 14. I have explained why that history does not support its view. See supra, at 22. Having only begun to swallow the elephant 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 exception by trying to guess the state of mind of 18th century lawyers when they decided not to make a particular argument, i.e., forfeiture, in a reported case. That is why, in Part II, supra, I have set forth other, more conclusive reasons in support of the way I would read the exception.

Second, the majority objects to that aspect of the forfeiture rule that requires a judge to make a preliminary assessment of the defendant's wrongful act in order to determine whether the relevant statements should be admitted. See ante, at 23. 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. Regardless, preliminary judicial determinations are not, as the majority puts it "akin . . . to 'dispensing with jury trial.' " Ante, at 11. (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 "judge . . . to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling." Ante, at 21, n. 6.

Third, the plurality seems to believe that an ordinary intent requirement, rather than a purpose or motive requirement, would let in too much out-of-court testimonial evidence. See ante, at 20-22. 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 evidence that the jury might hear.

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 control 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 domestic 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 relationship 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 3.

This seems to say that a showing of domestic abuse is sufficient 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 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 domestic 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 accounts for a substantial portion of all homicides; it typically 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 Statistics, Homicide trends in the U. S., 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 violence, and ultimately murder, can stop victims from testifying. 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 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 windfall." Id., at 833. And we replied to that concern by stating that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." Ibid. To the extent that it insists upon an additional showing 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 "purpose" based on no more than evidence of a history of domestic violence, I agree with it. In all other respects, however, I must respectfully dissent.

FOOTNOTES

Footnote 1

The dissent asserts that a defendant could have "contrived, i.e., devised or planned ... to murder a victim" without the purpose of keeping the victim away from trial. See post, at 12 (opinion of Breyer, J.). But that would not be contriving to keep the witness away. The dissent further suggests that these authorities are irrelevant because "the relevant phrase" in Lord Morley's Case itself is " 'by 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 12-13 (emphasis added). But the authorities we cited resolve this ambiguity in favor of purpose by substituting for the "means or procurement" of Lord Morley's Case either "contrivance" or "means and contrivance." (Emphasis added.)

Footnote 2

Only a single state evidentiary code appears to contain a forfeiture rule broader than our holding in this case (and in Crawford) allow. Seven of the 12 States that recognize wrongdoing as grounds for forfeiting objection to out-of-court statements duplicate the language of the federal forfeiture provision that requires 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 "engaged 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 defendant 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 testify." 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 intolerable 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).

Footnote 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 v. Washington, 541 U. S. 36, 46 (2004), it was also argued that witness tampering could be a basis for admitting 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 (remarks of Lovel). The dissent responds that in most circumstances in which a witness had given information against a defendant before " 'a proper magistrate,' " the testimony would have been confronted. Post, at 20. 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.

Footnote 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, The 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.

Footnote 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" "established at the time of the founding,' " post, at 3, reaching all such misconduct. 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.

Footnote 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 defendant 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 Confrontation Clause for the quite different reason that it was not (as an incriminating 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 evidentiary 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 expansive than the exception proposed by the dissent.

Footnote 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 9. 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 guarantees is not an anomaly, but the intentional conferring of privileges designed to prevent criminal conviction of the innocent. The State is at no risk of that.