August 2008 Archives

August 14, 2008

Domestic Violence Cases Confront the Constitution

For prosecutors of domestic violence cases, one of the biggest frustrations has been the frequency with which women refuse to testify against their abusers. Until 2004, prosecutors were often able to convict perpetrators of domestic violence even when women refused to testify by offering into evidence the women's post-abuse descriptions of attacks to police officers. Even though these statements to police officers were hearsay, they were admissible as evidence so long as judges deemed them to be sufficiently reliable.

The case of Crawford v. Washington, 541 U.S. 36, decided by the U.S. Supreme Court in 2004, made it almost impossible for prosecutors to convict domestic violence perpetrators based on women's hearsay descriptions of abuse. Interpreting the "Confrontation Clause" of the Sixth Amendment to the U.S. Constitution, Crawford decided that if hearsay statements are "testimonial" (as statements to police officers almost always are), they are inadmissible in evidence unless defendants have the opportunity to cross-examine the women who made them in court. Thus, in most cases in which abused women refuse to cooperate with prosecutors, charges against alleged perpetrators of domestic violence must be dismissed.

Crawford and later cases suggested one possible route making women's hearsay descriptions to police officers admissible as evidence: If a prosecutor can show that a perpetrator's intimidating behavior (such as physical abuse, threats, etc.) resulted in the woman refusing to testify, then the perpetrator could be held to have forfeited his right to cross examine. If forfeiture occurs, the woman's hearsay description of the perpetrator's abuse is admissible in evidence even if the woman fails to testify, and the perpetrator might be convicted based on the hearsay.

To the dismay of domestic violence prosecutors, in the 2008 case of Giles v. California, 554 U.S. ___, the U.S. Supreme Court made it more difficult to prove that domestic violence perpetrators forfeited their right to cross-examine. According to Giles, intimidating behavior constitutes forfeiture only if the perpetrator carried it out for the purpose of preventing a person from testifying.

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August 12, 2008

Expert Witnesses: Should They Be in Hot Water?

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Is a defendant mentally competent to stand trial? How credible is an eyewitness' identification of the defendant as the perpetrator of a crime? Did the DNA testing lab correctly perform the analysis linking the defendant to blood found at the crime scene? Is this the defendant whose voice is on the recorded bomb threat?

For answers to these and myriad other questions that arise daily in criminal trials, judges and lawyers typically turn to expert witnesses. To jurors, however, the answers are often more mystifying than enlightening. It's not just that the subjects that experts testify about are unfamiliar and complex. Often, the reason is that each side -- prosecution and defense -- presents its own expert, and the experts flatly contradict each other. Had Sir Isaac Newton been writing about the U.S. trial process rather than physics, he might have written: "For every expert opinion there is an equal and opposite expert opinion."   

The problem is that experts are part of the adversarial trial process. Each party hires its own expert, who can be counted on to deliver opinions that support the party paying the expert's fee. Indeed, if one or two experts disagree with a party's position, the party can shop around for one who will sing the correct song in court. No wonder jurors often have to throw up their hands and side with the expert "who looks and sounds like the experts on TV courtroom programs."     

Various solutions to the problem of trials turning into Battles of the Partisan Experts have been proposed. A frequent idea is for judges to appoint so-called Impartial Experts. But attorneys are loath to give judges control over crucial aspects of their cases, and anyway, experts can't be counted on to be any more impartial than the rest of us. The reality is that the answers to scientific and technical questions are often uncertain and even unknowable, and experts can disagree without fudging the truth as they perceive it.

"Hot tubbing" may be the way to go -- developed in Australia, hot tubbing consists of having opposing experts testify together, in conversation with each other. Hot tubbing is consistent with many current courtroom procedures, such as each side retaining its own experts. And lawyers and judges are able to put questions to the experts as they testify. But while they are in the figurative hot tub, experts can respond directly to each other, and often can find some common ground.  As a result, jurors may better understand their testimony and arrive at more educated verdicts.

Whether hot tubbing will catch on here in the U.S., and its effectiveness for advancing the truth-seeking function of trials, is uncertain. However, solutions to the perceived problems inherent in partisan expertise have been hard to come by, and hot tubbing is an alternative that holds promise.


August 6, 2008

British "Ladettes" on the Rampage

The value of the British Pound as compared to the U.S. dollar isn't the only item on the rise --  recent studies indicate that the rate of violent crimes committed by British girls is at an all-time high. In 2007, violent crimes replaced theft as the most common type of crime committed by British girls under the age of 18. "Ladette Louts" is the popular term used to refer to girls arrested for committing violent crimes, as the attacks are often associated with increased binge drinking. Support for the argument that excessive drinking by girls in the U.K. is associated with the rise in violent crime comes from studies indicating that the number of women arrested for being drunk and disorderly in public has doubled in the past 5 years. The recent high-profile case of a girl videotaping a fatal "happy slapping" incident has once again put this issue in the spotlight in the U.K. press.

But are the same trends occurring in the U.S.? Some guidance is provided by a study issued in May 2008, conducted by the Office of Juvenile Justice and Delinquency Prevention, entitled "Violence by Teenage Girls: Trends and Context". The study indicates that for the period between 1996 and 2005, the number of girls arrested for aggravated assaults (generally, assaults involving weapons or produicing injuries) dropped by 5.4%. Ironically, the number of girls arrested during the same period for simple assaults actually increased by 24%. (Family members, especially mothers, are the most common target of girls' aggressive behavior.) The report concludes that "there is no burgeoning national crisis of increasing serious violence among adolescent girls." Moreover, though the study mentions a number of factors associated with violence by girls, alcohol is not mentioned at all. Thus, the stories of female teenage violence in the U.K. and the U.S. appear to be very different.