Friday, April 14, 2006
The United States Supreme Court recently heard argument in two cases - Hammon v. Indiana and Davis v. Washington - that raise an issue of great importance to the future of domestic violence prosecution: when does the admission of out-of-court statements by an 'absent accuser' violate a defendant's right of confrontation? In contrast to previous scholars, who have largely focused on the relative merits of various definitions of 'testimonial,' I examine how courts have mapped these definitions onto the realities of battering. This inquiry reveals an uncritical judicial and scholarly acceptance of a false dichotomy between 'calls for help' and attempts to assist law enforcement by providing information - a dichotomy that often results in the improper exclusion of victims' out-of-court statements.
Yet whichever definition of 'testimonial' the Court adopts, there will be hearsay in 'victimless' prosecutions that would have been admissible before Crawford v. Washington but now will be properly excluded. Given this reality, the moment is ripe for sustained scholarly treatment of the rule of forfeiture, which precludes a defendant from asserting confrontation rights where he is responsible for procuring the absence of a witness. I therefore devote considerable attention to the question of how to import forfeiture principles to the domestic violence context. Battering - a course of conduct that is ongoing, patterned, and characterized by control (as well as violence - is different from violence against strangers. Accordingly, I argue that judicial reliance on precedent and analogy is inadequate to construct a doctrinal framework applicable to domestic violence cases. This Article provides a roadmap for the necessary reconceptualization of forfeiture.
I conclude by contemplating the implications of what I characterize as a 'relational' approach to confrontation. I posit that the Confrontation Clause is fundamentally concerned with the triangular relationship among accused, accuser and the state. Asking the relational question reveals a set of previously unexamined assumptions about this triangle. By exposing - and, in the domestic violence realm, contesting - the conventional alignment of the triangle, a relational approach transforms how we think about the meaning of confrontation.