Reconsidering Spousal Privileges after Crawford

35 Pages Posted: 20 Nov 2006

Abstract

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court's new "testimonial" approach to the confrontation clause. Examining the Court's trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court's new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider their spousal privilege rules in light of Crawford - many of which are poorly conceived, confused, and outdated - and should reform these statutes to add a spousal crimes exception to both the adverse testimonial privilege and the confidential communication privilege.

Keywords: Crawford, spousal privilege, domestic violence prevention, confrontation clause, hearsay, criminal law, live testimony, state law, testimonial privilege, confidential communication privilege

Suggested Citation

Cassidy, R. Michael, Reconsidering Spousal Privileges after Crawford. American Journal of Criminal Law, Forthcoming, Boston College Law School Research Paper No. 113, Available at SSRN: https://ssrn.com/abstract=945686

R. Michael Cassidy (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
617-552-4343 (Phone)

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