WASHINGTON

Dwayne Giles complains that his former girlfriend's statements should not have been used against him at his murder trial because the woman couldn't be cross-examined.

Her absence wasn't a result of a scheduling conflict. She was dead. And Giles killed her.

Three California courts that have considered Giles' claim have said, in effect, "You must be kidding."

Now, though, the Supreme Court, in arguments scheduled for Tuesday, is hearing Giles' case to see whether the use during his trial of statements the girlfriend made to a Los Angeles police officer violated his constitutional right to confront witnesses against him.

The issue the court has agreed to resolve is when defendants forfeit that right. It is already clear that a defendant who kills someone to prevent him from testifying may not come into court and seek to exclude prior statements by the dead person.

But this case is one in which there were no charges pending against Giles when he shot Brenda Avie dead with a 9-millimeter handgun outside his grandmother's house in September 2002.

A few weeks earlier, Avie told a police officer that Giles assaulted and threatened to kill her. The officer testified about the conversation at Giles' trial, over his lawyer's objection.

Giles claimed he acted in self-defense, fearing that Avie was armed. She wasn't. Giles also testified that Avie behaved erratically and threatened to kill both him and his new girlfriend on the night she died.

Giles was convicted of first-degree murder and sentenced to at least 50 years in prison.

California courts upheld the conviction, saying that when a witness is unavailable because of the defendant's actions, it doesn't matter whether there was an intent to prevent testimony.

California Attorney General Jerry Brown urged the high court to uphold the conviction. "It makes no difference whether his motive for killing her was to make her unavailable to testify against him in court," Brown said in court papers.

Giles, however, argued that the distinction is crucial. Statements that can't be challenged through cross-examination should be barred from trials "except where the defendant engages in conduct specifically designed to undermine the integrity of the trial process," Giles' lawyer Marilyn Burkhardt told the justices in a court filing.

Courts around the country have split on this issue since a Supreme Court decision in 2004 that strongly affirmed the right to confrontation. State courts in Kansas, Washington, West Virginia and Wisconsin have sided with California.

Courts in Colorado, Illinois, Massachusetts, Minnesota and New Mexico have ruled in defendants' favor.

Thirty-seven states and groups that work to prevent domestic violence and sexual abuse of children are supporting California, arguing in part that a ruling for Giles would give batterers and rapists incentive to kill their victims.

Criminal defense lawyers said a ruling for California would increase the use of unreliable, hearsay testimony and would make a significant retreat from the court's recent robust defense of the right to cross-examine witnesses.

A decision is expected by late June.

The case is Giles v. California, 07-6053.

Copyright 2008 Associated Press