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Abstract:
Crawford v. Washington, 541 U.S. 36 (2004), which altered the Supreme Court's approach to the Confrontation Clause, has generally impacted trial practice. However, its effect on domestic violence and child abuse cases has been particularly severe. Pursuant to Crawford, if a declarant makes a "testimonial" statement, in the absence of forfeiture, its admission at trial violates the defendant's right of confrontation unless the declarant is unavailable and has been subjected to prior cross-examination. Young child witnesses may be incompetent to testify or otherwise available. Most complaining witnesses in domestic violence cases do not willingly cooperate with the police.

Prior to Crawford, Ohio v. Roberts, 448 U.S. 56 (1980), and its progeny permitted the statements of absent declarants to be introduced under firmly rooted hearsay exceptions, or under ad hoc exceptions when the statements were trustworthy. As a result, in child abuse cases, statements of children were frequently introduced which had been obtained through multidisciplinary forensic interviews. Prosecutors relied heavily on excited utterances, statements to medical personnel, and child hearsay exceptions as well as on medical expert testimony and introduction of prior molestations by defendants. In domestic violence cases, prosecutors developed "victimless" prosecutions, based primarily on the complainant's excited utterances, medical statements, or other trustworthy hearsay, which were introduced through the testimony of police and medical personnel who photographed the injuries. In some jurisdictions expansive use of prior acts of domestic violence were offered under Rule 404(b) or domestic violence exceptions.

The effort to hold batterers accountable for their actions did not create uniformly good results for battered women. Some complainants were virtually forced to testify or face jail when they ignored subpoenas in "no drop" jurisdictions. In addition, more women were arrested for domestic violence, judges often granted mutual protective orders, women were charged criminally for endangering their children who witnessed their abuse; and even when they were not charged, their children might be removed from the home and placed in foster care. The effect and effectiveness of such policies began to be questioned even before Crawford.

This article critiques the testimonial approach, discusses how testimonial statements should be defined focusing particularly on excited utterances and 911 calls, and identifies current trends affecting domestic violence and child abuse litigation. It also explores forfeiture, waiver, and opening the door to testimonial statements. Rather than fighting Crawford, consideration should be given to adopting new hearsay exceptions for declarants who testify, determining whether Rule 404(b) is being adequately used, and expanding expert testimony to permit background about battering and child abuse. More globally, the article proposes restructuring domestic violence prosecutions into three separate tracks in order to devote scarce criminal justice resources to the most dangerous offenders. Finally, best practices are suggested that are most likely to permit child testimony.

Crawford, confrontation, evidence, domestic violence, child abuse

Abstract:
Jailhouse informants and dishonest experts have long been identified as significant causes of wrongful convictions. Much has been written about the legal challenges to such testimony. However, less attention has been directed to the scope of any ethical obligations triggered by prosecutorial solicitation and presentation of the testimony of these exceedingly dubious witnesses in court, assuming full compliance with Brady, and the absence of any prosecutorial request for false testimony. Are prosecutors being willfully blind to the likelihood of perjury, or simply taking their witnesses as they find them in order to advance the cause of justice in a criminal justice system where their investigative resources are stretched thin over an ever increasing caseload?

This essay concludes that there are significant institutional goals that warrant clarification of the ethical rules governing the introduction of testimony that sounds too good to be true, regardless of the inability of defendants to obtain a reversal when the ethical breach does not violate constitutional or statutory law. My objective is not to bash prosecutors for ever resorting to jailhouse informants or questionable experts. There are likely to be instances where even under stringent prosecutorial review such witnesses appear to be truthful, and the evidence is critical, justifying prosecutors to introduce the testimony pursuant to their role as advocates, particularly given that it will still be subject to defense challenges, as well as to judicial and jury review. Rather, I hope to encourage prosecutors to give meaningful content to their ethical obligations to innocent defendants by creating standards and policies to self regulate their over-reliance on such witnesses, making their appearance at trial the exception, rather than the norm. I also suggest that prosecutors create their own self-regulatory commission under the auspices of an organization such as the National District Attorneys Association to review cases in which courts have exonerated individuals who were convicted of crimes they did not commit.

prosecutors, ethics, wrongful convictions, jailhouse informants, experts

Abstract:
This article updates, expands and revises the author's previous works concerning gender in sentencing in light of Booker. It describes the dramatic increase of the female incarcerated population in the federal system due primarily to drug offenses. It discusses the Guidelines concerted effort to produce identical sentences for men and women who commit similar crimes, which imposed draconian costs on families as well as on women who do not resemble the violent male drug dealers who inspired the severe federal drug penalties. Gender related differences concerning the impact of sentencing policy on children and on loss of parental rights by mothers are discussed. Booker's reasonableness analysis is analyzed as providing the flexibility to approve non-guidelines sentences based on gender-related factors. The practice of requiring judges to decide the appropriateness of discouraged downward departures before issuing non-guidelines sentences is critiqued as hindering more holistic sentencing of defendants.

The author also criticizes the guidelines discouragement of family ties departures, and argues that a completely gender-neutral sentencing scheme is bad policy because it has the potential of increasing intergenerational crime by ignoring the gendered realities of caregiving in our current society. A Guidelines amendment is proposed making children a legitimate departure factor in assessing the sentence of nonviolent sole and primary caretakers in light of constitutional and policy considerations viewing the family as a fundamental liberty interest. The difficulty posed by the Girlfriend Problem in drug conspiracy cases is addressed, and reasons are advanced as to why gender related issues are legitimate sentencing factors in relation to other departures that have gendered applications. In addition, issues currently viewed as only relevant to corrections are posited as legitimate sentencing factors. Thus, concerns relating to pregnancy and childbirth, family visits, privacy, staff sexual misconduct and lack of access to appropriate programming are viewed as relevant to determining a just sentence. Finally, the Bureau of Prisons regulations concerning community correctional centers are critiqued and the author urges the expanded of community corrections for women offenders and their children.

gender, sentencing, prisoners, children, collateral consequences, criminal law

Abstract:
While domestic violence is typically thought of as a state crime, this article discusses domestic violence related prosecutions in federal court. Four federal crimes are studied: interstate domestic violence, interstate travel to violate a restraining order, and two possession of weapon offenses committed by individuals who are either subject to a qualifying restraining order or have been convicted of a qualifying domestic violence misdemeanor. The article analyzes data concerning referrals, filings, convictions and sentencings of these crimes, and discusses issues concerning federal prosecutions, including the extent of federal/state cooperation. The rights of domestic violence victims in federal court are explained, with particular attention given to concerns about safety, impact statements and restitution. In addition, the article describes the various ways in which domestic violence impacts women who are prosecuted in federal court for a variety of crimes, and argues that domestic violence should be taken into account when a female offender is sentenced for a crime that relates to her history of abuse.

domestic violence, sentencing, female offenders, victims, criminal law

Abstract:
This article explores the impact the testimonial approach to Confrontation Clause jurisprudence has on child abuse cases. While neither Crawford nor Davis dealt with child witnesses, they contain several references that are significant in analyzing hearsay by children who do not testify. I discuss the possible interpretations of White v. Illinois, Idaho v. Wright, and King v. Brasier in a testimonial regime before turning to issues regarding the competency of child witnesses and their ability to provide an adequate opportunity for cross-examination. The article highlights the increased importance of Maryland v. Craig in presenting testimony by child witness, and argues that Craig's balancing approach to confrontation survives Crawford. Forfeiture is analyzed in the child abuse context. Finally, the article evaluates the admissibility of statements that were originally made in forensic interviews, in medical settings, and to private individuals who have no mandatory reporting obligations or law enforcement ties, when the child does not testify at trial.

Crawford, Davis, Craig, confrontation, evidence, child abuse

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.

confrontation clause, domestic violence

Abstract:
This article discusses the differences between the California and Federal evidentiary provisions concerning business and official records. In addition, to analyzing whether the differences are significant, I address more general themes suggested by the conflicting approaches to hearsay taken by the two jurisdictions. The more hearsay friendly federal approach has ramifications in a number of contexts. I discuss the interplay of these two hearsay exceptions with other exceptions concerning the admission of multiple hearsay in civil cases, the effect of the testimonial approach to confrontation on these exceptions in criminal cases, and whether the divide between evidentiary rules and interpretation in civil and criminal cases has widened enough to warrant rejecting the unitary approach to evidence. In addition, the case-law revealed the ease with which police and other business records can be introduced not only in administrative settings, but also in federal courtrooms in sentencing, and at preliminary hearings. Moreover, in state court litigation involving the loss of liberty pursuant to the Sexually Violent Predators Act (SVPA), the only bar to police reports appears to be in the unlikely event they violate due process. Some statutory counterweights also exist, requiring admissible evidence in a few settings not governed by the Rules or Code. Ultimately, the typically ignored applicability provisions of the FRE and California Code appear to create both significant de facto hearsay exceptions as well as barriers to admitting hearsay.

evidence, business records, official records, hearsay, criminal rules, SVPA

Abstract:
As an unending stream of women pour into correctional facilities, it is fitting that the criminal justice community should pay more attention to whether gender makes a difference in the crimes that women commit, the pathways that they take to criminality, the sentences they receive, and the impact that their sentences have on their children. This essay reviews three books that raise different issues concerning the relationship between gender and criminal justice outcomes, provides a context for interpreting their contributions, and spotlights a number of questions they raise. The first book is WOMEN AND GIRLS IN THE CRIMINAL JUSTICE SYSTEM: POLICY ISSUES AND PRACTICE STRATEGIES, edited by Russ Immarigeon, which is a compilation of 52 articles that originally appeared in the bimonthly publication Women, Girls & Criminal Justice, and is now packaged as a one volume reference work available to a wider audience. The second is VICTIMS AS OFFENDERS: THE PARADOX OF WOMEN'S VIOLENCE IN RELATIONSHIPS by Susan L. Miller, which addresses the controversy that exists about the extent of female aggression in the domestic context, and discusses her observations from attending 12-week female offenders' programs. The third is THE FAIRER DEATH: EXECUTING WOMEN IN OHIO by Victor L. Streib, which paints vivid snapshots of the few luckless and until now forgotten women who have broken into the typically all-male death penalty club in Ohio, as well as discusses the characteristics of women who receive the death penalty nationally.Please enter abstract text here.

female offenders, domestic violence, sentencing, victims,

Abstract:
This essay explores the interplay between rationality and wrongful convictions in light of presentations made at a symposium on Visions of Rationality and Evidence Law held at Michigan State University College of Law. The motivation for this inquiry arose from the author's role as co-chair of an American Bar Association (ABA) Criminal Justice Section Committee, which was developing policies to strengthen the integrity of the criminal trial process in light of the DNA exonerations.

Questions are raised about how to present probabilistic and forensic evidence at trial so that jurors understand, but do not overvalue expert testimony, and whether the pro admissibility approach of the federal rules of evidence can have an unintended negative effect on jury decision-making. The author recognizes that rationality does not imply empirical accuracy, since one can reason from incorrect premises. Finally, a number of other evidentiary issues are addressed in the context of suggesting how we can lessen the possibility of wrongful convictions.

wrongful convictions, evidence, innocence, criminal justice

Abstract:
This is a comment on Tom Lininger’s article The Sound of Silence: Holding Batterers Accountable for Silencing their Victims, 87 Texas L. Rev. 857 (2009), which analyzes the Giles case. The essay questions the application of originalism in the context of domestic violence; and suggests that statements describing past crimes should not be considered testimonial when they are offered as circumstantial evidence of different crimes that are committed subsequent to the time of their uttering, and are not an element of the current crime. It argues that Professor Lininger’s per se rules for forfeiture should be viewed as rebuttal presumptions, and that the existence of a protective order should suffice to prove forfeiture without requiring evidence that the order was violated. In analyzing Giles’ inferred intent approach to forfeiture, the essay takes a broad view of foreseeability, and also argues that character evidence of a defendant’s abusive personality should suffice to prove inferred intent forfeiture since it is being offered as evidence of a Rule 104(a) preliminary fact, not as evidence at trial. In conclusion, the essay rejects the need for a broad forfeiture exception that would be applicable to nontestimonial hearsay, contending that other exceptions are better suited to provide admissibility, and that expanding forfeiture would have unforeseen consequences in contexts beyond domestic violence.

Abstract:
This article explores how the rights of child crime victims affect sexual abuse trials. It addresses recent ABA policies that recommend children be given specialized services such as those provided by child advocacy centers, as well as access to legal advice. The article also discusses how legal professionals can improve their interactions with child victims without curtailing the rights of criminal defendants, focusing on evidentiary issues such as competency, remote testimony, and expert testimony. The child friendly courtroom is analyzed in light of Crawford’s ban on testimonial statements in the absence of a declarant who has been subjected to cross examination.

child witnesses, child abuse trials, confrontation, crime victims

Abstract:
This comprehensive article reviews the history of advocacy on behalf of adult and child female victims of rape and other sexual assaults, focusing on both long term and short term trends. The first section provides statistical information about victimizations, rape reporting and prosecutions. The second section explores the variety of issues that arise in the context of rape shields, including the extent of admission of evidence of prostitution and promiscuity, and urges that judges be required to find preliminary facts by a clear and convincing evidence standard before admitting any evidence of the complainant's sexual life that the defense claims is not barred by a rape shield. In addition, a reverse balancing test should also be required prohibiting such evidence of a sexual nature unless its probative value substantially outweighs the danger of harm to the complainant or unfair prejudice to any party. The author argues that these restrictions do not violate the Confrontation Clause.

The next major section discusses the admission of the defendant's prior acts to prove propensity and lustful disposition. The author does not support the general admission of propensity evidence, but favors a flexible approach to the admission of Rule 404(b), particularly in child abuse cases, which is currently the prevalent approach. To the extent that propensity evidence is generally permitted, such as under the Federal Rules and in California, the author would also subject its admission to a clear and convincing evidence standard. Other topics addressed include rape counselor privileges; fresh complaint; DNA database issues, Sexual Abuse Response Teams and the use of forensic nurses.

The article also explores how the rights of crime victims affect trials of sex crimes, and urges that more attention be given to providing legal assistance to child victims of sexual assaults. The article concludes by looking at evidentiary issues in child abuse cases, such as competency, remote testimony, expert testimony, and discusses the child friendly courtroom in light of Crawford's ban on testimonial statements in the absence of a declarant who has been subjected to cross examination.

rape shield, child abuse, sexual assault, propensity, crime victims