CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, March 12, 2010

Orenstein on Crawford's Effect on Domestic Violence Cases

Orenstein aviva Aviva Orenstein (Indiana University School of Law - Bloomington) has posted Sex, Threats, and Absent Victims: The Lessons of Regina v. Bedingfield for Modern Confrontation and Domestic Violence Cases on SSRN. Here is the abstract:

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully. 

Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the murder victim. The analysis of the res gestae hearsay exception, which was central to excluding the victim’s statement in Bedingfield, focused on the timing of her statement, her intent in making it, and whether an ongoing emergency existed when the declaration was made. Justice Scalia’s rigid, formalistic approach to testimonial statements in Davis v. Washington, another in the line of new confrontation cases, is analogous and ultimately as confusing and unworkable as Bedingfield’s res gestae analysis.

Although Bedingfield arose in 1879, its facts, replete with verbal abuse, intoxication, unheeded pleas for police protection, and ultimately, murder when the victim tried to break off the relationship, resonate with modern experiences of domestic violence. Both the Bedingfield case and Justice Scalia’s confrontation jurisprudence fail to account for the practical realities of domestic violence cases and ignore the voices of victims who cannot or will not testify on their own behalf. The facts of Bedingfield, which present a serious question whether the victim’s statement was ever uttered, demonstrate another flaw in Justice Scalia’s new approach. In addition to being too rigid in rejecting unconfronted testimonial statements, the new confrontation doctrine it is also too lax regarding nontestimonial statements, which now receive no constitutional protection at all.

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The constitution, and my rights and your rights, erode over time in the face of the lobbying, legislative, and judicial activism of interest groups who sincerely purport to advance the cause of "victims". The interest groups speak for children, spouses, domestic partners, crime victims and others. Legislators pass statutes which allow hearsay statements into evidence. Judges and appellate courts fashion rules of evidence fashioning all sorts of hearsay exceptions and confrontation clause exceptions for face to face confrontation. The miscarriages of justice go far beyond the criminal context. A victim of domestic violence shows up on a docket with fifty other cases. This is civil court, no confrontation rights. Fifty victims get up, most all with children who are related to the named perpetrator. A judge comes out and solemnly announces that all alleged perpetrators who sign on the line and do not contest the allegations will get a consent order which will not affect their right to ever possess a firearm again. This carries great weight in deer season. When the docket is done, daddy can not be around the mom, and the kids never see daddy again. Something like 150 to 400 kids are fatherless for life. A lot of lying goes on.

Some of the do-gooder advocates for all of the victims should recognize the downside of their advocacy. Scalia's reasonaing and scholarship in Crawford is compelling. It goes something along the lines of this: Dad gets to ask his son or daughter, face to face, in front of the jury (before he is sent off in chains for LWOP): "Son did I really do all those things you told that room full of social workers in that interrogation room last year that are so terrible?"

A friend of mine who is a clerk in the domestic violence division recounts a common occurenece in her courtroom. She terms it the double crossed fingers. When the oath is administered the left hand with two fingers crossed is laid on the bible and the right hand with two fingers crossed is raised in the air.
The judge does not notice, the audience and victim are too far away to see, and Lord knows what the Lord is thinking. Aloowing a social worker to come to court to repeat what a child said in a so called SAFE interview is a crime which would have been condemned at Nuremburg.

Posted by: mpb | Mar 14, 2010 1:35:25 AM

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