The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence

24 Pages Posted: 3 Aug 2008

Date Written: August 1, 2008


Victims of domestic violence often do not want to testify in court, and if they do, they often recant and/or testify on behalf of their batterers. To overcome this challenge in prosecuting these types of cases, prosecutors have implemented a practice of "victimless prosecutions" where the out-of-court statements of victims are used in lieu of their live testimony in court. This practice has been limited, however, by the United States Supreme Court cases Crawford v. Washington and Davis v. Washington, which limit the use of out-of-court testimonial statements in criminal cases when the defendant has not had an opportunity to cross-examine the witness. For this reason, some out-of-court statements will no longer be admissible in domestic violence trials. In evaluating how this change should affect the future prosecutions of domestic violence cases, this article critiques the practice of victimless prosecutions from the perspective of the victim. Specifically, this article proposes that scholars consider whether victimless prosecutions have been effective in meeting the goals of victim safety, gender equality, and autonomy. Drawing upon feminist scholarship and literature on the legal silencing of subordinate groups, it explores whether victimless prosecutions may discourage women from speaking, which is an important act of empowerment. This legal silence may allow the legal system to ignore victims and to pursue its own agenda of successful prosecutions, may limit the criminal justice system's ability to get direct input from victims on whether these laws and policies are effective, and may make victims complicit in their subordination as women. While this article acknowledges that victimless prosecutions may be appropriate for some victims, given the potential harm of victim silencing and the fact that Crawford and Davis will limit the use of victimless prosecutions in at least some cases, the criminal justice system should evaluate whether there are victims who can and will testify. Directly addressing some of the reasons that victims do not testify may limit victim silence, which may be a better long-term approach to the domestic violence problem.

Keywords: Crawford, Davis, domestic violence, Confrontation Clause, victimless prosecutions

JEL Classification: K14

Suggested Citation

Bailey, Kimberly, The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence (August 1, 2008). Brigham Young University Law Review, Forthcoming, Available at SSRN:

Kimberly Bailey (Contact Author)

Chicago-Kent College of Law ( email )

565 West Adams St.
Chicago, IL 60661
United States

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