26 Pages Posted: 16 Nov 2007 Last revised: 5 Dec 2007
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.
Keywords: confrontation, domestic violence
JEL Classification: K14, K19, K42, K49
Suggested Citation: 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: https://ssrn.com/abstract=1030365