Davis and Hammon: Missed Cues Result in Unrealistic Dichotomy
Sarah M. Buel
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Texas Law Review, Vol. 85, p. 19, 2007
On its face, the Supreme Court’s combined Davis v. Washington and Hammon v. Indiana ruling appears to be a just affirmation of criminal defendants’ right to cross-examine those bearing witness against them. However, Davis has made Confrontation Clause analysis more difficult by failing to mandate the contextual analysis necessary to ensure a proper balancing of constitutional and social norms - here as they pertain to domestic violence cases. First, Davis employs a faulty analytical framework that mistakenly applies remedies for state interference with confrontation to defendant prevention of a witness’s testimony. It makes little sense to eliminate the injustice alleged in Crawford and Davis, only to reward known criminals for brazen witness tampering and deny terrified victims a legal remedy. Second, the Court misguidedly imposes a temporal delineation that gives rise to an unrealistic dichotomy between evidence relating to ongoing emergencies and evidence of past conduct. Finally, in Hammon, the Supreme Court missed many obvious cues and ignored salient facts supporting the trial court’s determination that the abuse victim’s statements were not testimonial.
Number of Pages in PDF File: 9
Keywords: Confrontation Clause, Davis v. Washington, Hammon v. IndianaAccepted Paper Series
Date posted: July 22, 2010
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