Is Crawford a 'Get Out of Jail Free' Card for Batterers and Abusers? An Argument for a Narrow Definition of 'Testimonial'

Abstract:     
In domestic violence and familial abuse cases, prosecutors much often rely on hearsay statements made by the victim during or shortly after the alleged crime. Such statements may include 911 calls for assistance or spontaneous utterances to law enforcement officers or others. Prior to the Supreme Court’s decision in Crawford v. Washington, the admissibility of such hearsay statements in the face of the Confrontation Clause had depended upon finding that the hearsay statement was reliable. However, under Crawford, admissibility now depends on whether the hearsay statement is not “testimonial.” This raises the question of how to define “testimonial statements.” Professor Chase proposes that a statement should only be found to be testimonial if there is government involvement in creating the statement with an eye toward admitting the statement at trial. This narrow definition is more consistent with the purpose of the Confrontation Clause and with Crawford than broader definitions. Professor Chase also discusses that, because of due process confrontation requirements independent of the Confrontation Clause, non-testimonial statements which pass Confrontation Clause scrutiny must still be shown to be reliable to be admissible. Professor Chase applies her framework to types of hearsay evidence that are often available in domestic violence and familial abuse case, such as 911 calls, statements made to responding officers or medical providers, formal statements given to police or investigators after the initial response to the incident, statements given to individuals other than police officers and investigators, and dying declarations. She concludes her article by considering the doctrine of forfeiture as a means of admitting even “testimonial” hearsay.

Number of Pages in PDF File: 34

Keywords: Crawford v. Washington, confrontation clause, hearsay, testimonial statements, due process, domestic violence, evidence

JEL Classification: K14, K41, K42

Accepted Paper Series