Domestic Violence Cases After Davis: Is the Glass Half Empty or Half Full?

29 Pages Posted: 17 Dec 2006

See all articles by Myrna Raeder

Myrna Raeder

Southwestern Law School (deceased)

Abstract

Crawford v. Washington wrought a sea change in Confrontation Clause analysis by switching from a reliability-based approach to one that asks if the out-of-court statement is testimonial. Post-Crawford, testimonial statements cannot be introduced during criminal trials when the declarant does not testify, unless that individual is unavailable and the defendant had a previous opportunity for cross-examination, or the defendant has forfeited his right to confrontation. Crawford left many unanswered questions about defining testimonial statements in domestic violence cases, where victims typically make frantic 911 calls or greet police officers with frightened pleas for help when they arrive at the scene. Because most domestic violence victims do not cooperate with the prosecution, the two years after Crawford produced many conflicting decisions about the admissibility of their excited utterances and doomed many domestic violence prosecutions. In Davis v. Washington, the Court addressed the two most common domestic violence scenarios, 911 calls and field investigations. Davis proposed a standard it viewed as self-evident:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In this essay, I question whether Davis' bright line is illusory. Paraphrasing Justice Stewart's oft quoted view of pornography, Davis' definition of ongoing emergencies is so vague it provides little more guidance than saying I know a testimonial statement when I see it. I also evaluate criteria for assessing whether statements made to law enforcement personnel and other individuals are testimonial. In addition, I analyze difficulties with applying the Crawford/Davis approach, and discuss procedural issues and forfeiture. My comments conclude with suggestions for prosecutors in domestic violence litigation.

Keywords: confrontation clause, domestic violence

JEL Classification: K14, K19, K42, K49

Suggested Citation

Raeder, Myrna, Domestic Violence Cases After Davis: Is the Glass Half Empty or Half Full?. Crawford and Beyond Symposium, Brooklyn Journal of Law and Policy, 2007 , Available at SSRN: https://ssrn.com/abstract=952077

Myrna Raeder (Contact Author)

Southwestern Law School (deceased) ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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