Wednesday, January 6, 2010
Eileen A. Scallen (William Mitchell College of Law) has posted Coping with Crawford: Confrontation of Children and Other Challenging Witnesses (William Mitchell Law Review, Vol. 35, No. 4, 2009) on SSRN. Here is the abstract:
In Crawford, Davis, and Hammon, the United States Supreme Court created a serious hurdle in prosecuting certain kinds of crimes, such as domestic violence, elder abuse, and child abuse. Part II of this article briefly describes the Crawford debacle, arguing that its “cure” was worse than the problem it addressed. However, there is no point belaboring the issue because, as the Court appears to be refining its analysis, it shows no sign of taking another dramatic turn in the near future. Consequently, Part III focuses on the most serious problem created under Crawford: the prosecution of crimes involving vulnerable witnesses, particularly crimes of domestic violence, elder abuse, and child abuse. Focusing on the pragmatics of coping with Crawford, this article suggests ways to overcome Crawford’s limitations on admissibility of evidence and ways to exclude evidence that is no longer protected by the Confrontation Clause after Crawford. Investigators and prosecutors spent years drafting policies and procedures to increase the reliability of statements taken from alleged victims of these crimes that were out of court or outside the presence of a criminal defendant. These investigation and interrogation techniques were developed to comply with existing Supreme Court case law and to increase the integrity of the criminal justice system. Today, however, the more structured and careful investigators and prosecutors are in collecting hearsay evidence, the more likely the courts will bar the use of the evidence under the Confrontation Clause, as interpreted in Crawford and its progeny.