72 Pages Posted: 10 Apr 2006
The United States Supreme Court recently decided Davis v. Washington, a case raising an issue of great importance to the future of domestic violence prosecution: when does the admission of out of court statements by an absent accuser violate a defendant's right of confrontation? Notwithstanding its seemingly unequivocal definitional language, the opinion - which is ambiguous, contradictory, and emphatically fact bound - provides little in the way of guidance to lower courts or predictability for litigants. Because Davis leaves intact significant doctrinal indeterminacy, it is critical to examine how, as a categorical matter, amorphous legal tests governing what is testimonial are judicially mapped onto the realities of battering. This inquiry reveals an uncritical judicial and scholarly acceptance of a false dichotomy between calls for help and attempts to assist law enforcement by providing information - a dichotomy that often results in the improper exclusion of victims' out-of-court statements. Given the Court's adoption of a definition that is striking for its malleability, my critique anticipates the prospective factual determinations confronting lower courts. By identifying how misunderstandings of the dynamics of abuse inform analysis of the definitional question, I mean to suggest that, however Davis is interpreted, a shift in judicial thinking is warranted.
Yet even assuming the occurrence of this proposed paradigm shift, there will be hearsay in victimless prosecutions that would have been admissible before Crawford v. Washington but now will be properly excluded. Given this reality, the moment is ripe for sustained scholarly treatment of the rule of forfeiture, which precludes a defendant from asserting confrontation rights where he is responsible for procuring the absence of a witness. I therefore devote considerable attention to the question of how to import forfeiture principles to the domestic violence context. Battering - a course of conduct that is ongoing, patterned, and characterized by control (as well as violence) - is different from violence against strangers. Accordingly, I argue that judicial reliance on precedent and analogy is inadequate to construct a doctrinal framework applicable to domestic violence cases. This Article provides a roadmap for the necessary reconceptualization of forfeiture.
I conclude by contemplating the implications of what I characterize as a relational approach to confrontation. I posit that the Confrontation Clause is fundamentally concerned with the triangular relationship among accused, accuser and the state. Asking the relational question reveals a set of previously unexamined assumptions about this triangle. By exposing - and, in the domestic violence realm, contesting - the conventional alignment of the triangle, a relational approach transforms how we think about the meaning of confrontation.
Keywords: domestic violence, confrontation, Crawford, Hammon, Davis, forfeiture, testimonial
JEL Classification: K14, K19, K42, K49
Suggested Citation: Suggested Citation
Tuerkheimer, Deborah, Crawford's Triangle: Domestic Violence and the Right of Confrontation. North Carolina Law Review, Vol. 85, No. 1, 2006. Available at SSRN: https://ssrn.com/abstract=892620
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