Abstract

http://ssrn.com/abstract=1030365
 


 



A Relational Approach to the Right of Confrontation and its Loss


Deborah Tuerkheimer


Northwestern University - School of Law


Brooklyn Journal of Law and Policy, Vol. 15, No. 2, 2007

Abstract:     
Battering is fundamentally different from violence between non-intimates. Domestic violence is widely understood as an ongoing pattern of conduct defined by both physical and non-physical manifestations of power. Yet, by tacit default to analogy and precedent, our legal system equates domestic violence with paradigmatic non-domestic violence, resulting in an odd disconnect between the law and life outside of it. This observation is particularly true in the Confrontation Clause context, where notions of domestic violence underlying contemporary jurisprudence are sufficiently inaccurate as to fatally undermine the coherence of both doctrine and theory. As scholars, practitioners, and courts struggle to discern the meaning of the Supreme Court's recent pronouncement in Davis v. Washington, my critique focuses on the underlying conceptual framework as inherently flawed. A full appreciation of the dynamics of domestic abuse results in what I refer to as a relational approach to Confrontation Clause analysis. This Article, part of a symposium on - Crawford and Beyond, - develops the relational approach by analyzing the two doctrinal questions that will continue to arise most frequently in the post-Crawford era: (1) when is a statement testimonial, and (2) when has a defendant forfeited his right of confrontation?

In evaluating whether a statement is testimonial, the Court has adopted a theoretical framework that posits a binary relationship between crying for help and providing information for investigatory purposes. In the domestic violence realm, this dichotomy is false. By obscuring this reality, the dominant judicial approach has resulted, and will continue to result, in the classification as testimonial of many statements by domestic violence victims that are, in fact, cries for help in response to immediate danger. Yet even were courts to adopt the contextualized approach to the threshold definitional question that I advocate, there undoubtedly will be hearsay that is properly defined as testimonial. Accordingly, as the advancement of forfeiture arguments in domestic violence cases becomes commonplace, the doctrine must evolve to take into account the characteristics that distinguish domestic violence from other types of criminal tampering. In short, courts cannot correctly interpret the meaning of forfeiture without acknowledging the patterned nature of abuse.

When the realities of domestic violence are attended to, a new paradigm for Confrontation Clause jurisprudence - one that is, in essence, relational - can be discerned. Adopting a relational approach to confrontation has the potential to transform how we think about the value of confrontation in domestic violence prosecutions and beyond.

Number of Pages in PDF File: 26

Keywords: confrontation, domestic violence

JEL Classification: K14, K19, K42, K49

Accepted Paper Series





Download This Paper

Date posted: November 16, 2007 ; Last revised: December 5, 2007

Suggested Citation

Tuerkheimer, Deborah, A Relational Approach to the Right of Confrontation and its Loss. Brooklyn Journal of Law and Policy, Vol. 15, No. 2, 2007. Available at SSRN: http://ssrn.com/abstract=1030365

Contact Information

Deborah Tuerkheimer (Contact Author)
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States

Feedback to SSRN


Paper statistics
Abstract Views: 578
Downloads: 49

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 1.250 seconds