Aug 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.

In Giles, Brenda's ex-boyfriend attacked her, so she called the police and described the ex-boyfriend's abuse. Shortly thereafter, he shot and killed Brenda. Charged with murder, the ex-boyfriend testified that he shot Brenda in self-defense. To show that Brenda would not have attacked him, the prosecution sought to offer the description that Brenda gave to the police of her ex-boyfriend's earlier attack into evidence. The prosecutor argued that the ex-boyfriend had forfeited his right to cross-examine Brenda by killing her. However, the Court ruled in Giles that the ex-boyfriend only forfeited his right to cross-examine Brenda if he killed her for the purpose of preventing her from testifying against him. The Court sent the case back to the trial court for a determination of the ex-boyfriend's purpose.

Whether prosecutors can satisfy the standard that Giles sets is uncertain. It's hard enough to prove that people engaged in certain behavior; proving their purpose for engaging in that behavior may be harder still. And mixed motives often lie behind people's bahavior. Has forfeiture occurred if "prevent from testifying" is one of three motives? Must "prevent from testifying" be the main motive? At this point, answering such questions is impossible.

If women who are subjected to domestic violence continue to refuse to testify against their attackers in large numbers, how courts interpret Giles and its linkage of "forfeiture" to "purpose" will often determine the success of domestic violence prosecutions. Some have argued that intimidation is inherent in domestic violence, and that the the violence itself includes a purpose to prevent women from cooperating with police and prosecutors. If courts interpret Giles that broadly, then the case will have little effect on domestic violence prosecutors' ability to offer women's hearsay descriptions of abuse into evidence. But right now, the jury is still out.

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