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An Exercise in Fiction

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\\server05\productn\H\HLG\30-2\HLG208.txt unknown Seq: 1 2-AUG-07 13:28“AN EXERCISE IN FICTION”:THE SIXTH AMENDMENT CONFRONTATIONCLAUSE, FORFEITURE BY WRONGDOING,AND DOMESTIC VIOLENCE INDAVIS V. WASHINGTONREBECCA MCKINSTRY*I. INTRODUCTIONWomen who are victims of domestic violence are often reluctant tocooperate with prosecutors by testifying in court against their abusers. Thus,prosecutors who attempt to introduce out-of-court statements by victimsmust face hearsay and Confrontation Clause objections by defense attorneys.In the spring of 2006, the Supreme Court decided Davis v. Washington,1holding that prosecutors could not use out-of-court “testimonial” evidenceat trial. This holding has dramatic implications for domestic violence prose-cutions. The Court’s test for determining which evidence is “testimonial”requires an objective determination of the primary purpose of the police in-vestigation that elicited the evidence. This test achieves unpredictable re-sults, is unnecessary to prevent abuse, and is not grounded in history or caselaw. In the same case, the Court articulated the doctrine of forfeiture bywrongdoing, an important tool that allows prosecutors to circumvent the testaltogether.Prosecutions of domestic violence offenders present special problemsrelating to the Confrontation Clause of the Sixth Amendment. This clausegives a criminal defendant the right “to be confronted with witnesses againsthim,”2 and a system that does not provide this constitutional protection“calls into question the ‘ultimate integrity of the fact finding process.’”3Although a literal reading of the Confrontation Clause suggests that onlytestimony made in the courtroom in front of the accused should be admissi-ble, courts have been reluctant to adopt such a narrow interpretation.4 Be-cause domestic violence prosecutors “are more likely than others to rely onout-of-court statements by accusers who may recant or refuse to cooperatewith the prosecution at the time of the trial,”5 they must find ways to admitthis evidence without violating the Sixth Amendment’s requirements. Some* J.D. Candidate, University of Missouri School of Law, Class of 2008.1Davis v. Washington, 126 S. Ct. 2266 (2006).2U.S. CONST. amend. VI.3Ohio v. Roberts, 448 U.S. 56, 64 (1980) (quoting Chambers v. Mississippi, 410U.S. 284, 295 (1973)).4See Roberts, 448 U.S. at 63; FED. R. EVID. 803.5Tom Linninger, Prosecuting Batterers After Crawford, 91 VA. L. REV. 747, 768(2005).\\server05\productn\H\HLG\30-2\HLG208.txt unknown Seq: 2 2-AUG-07 13:28532 Harvard Journal of Law & Gender [Vol. 30experts estimate that eighty to ninety percent of domestic violence victimswill recant, often due to the batterer’s express threats of retaliation or actualretaliatory violence.6In Crawford v. Washington, the Supreme Court held that the Confronta-tion Clause barred “testimonial statements of a witness who did not appearat trial, unless he was unavailable to testify and the defendant had had a prioropportunity for cross-examination.”7 In Davis v. Washington, the SupremeCourt took a critical step by defining which statements are “testimonial,”thus requiring exclusion at trial.8 In his dissent, Justice Thomas persuasivelyargued that the Court’s test for determining which statements are testimonialis unpredictable, unnecessary to prevent abuse, and not rooted in history orcase law.9 Yet the Court’s comment on forfeiture of the right to confronta-tion as a result of wrongdoing by the defendant provides prosecutors with animportant tool for avoiding this cumbersome test altogether.10 Because “onewho obtains the absence of a witness by wrongdoing forfeits the constitu-tional right to confrontation,”11 prosecutors of domestic violence cases mustwork to expose such wrongdoing.II. THE CONFRONTATION CLAUSE ANDCRAWFORD V. WASHINGTON“Hearsay” is “a statement, other than one made by the declarant whiletestifying at the trial or hearing, offered in evidence to prove the truth of thematter asserted.”12 Rule 802 of the Federal Rules of Evidence provides that“hearsay is not admissible except as provided by these rules or by otherrules prescribed by the Supreme Court pursuant to statutory authority or byAct of Congress.”13 While Rule 803 provides an extensive list of exceptionsto the hearsay rule, the Supreme Court has made clear that testimonial hear-say, unlike other hearsay evidence, is subject to the Confrontation Clause.14The Sixth Amendment Confrontation Clause protects a criminal defen-dant’s right to “be confronted with witnesses against him.”15 The Davis6See id. at 768–69; People v. Brown, 94 P.3d 574, 576 (Cal. 2004); see also DouglasE. Beloof & Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to AdmitDomestic Violence Victims’ Out of Court Statements as Substantive Evidence, 11 COLUM.J. GENDER & L. 1, 3 (2002) (noting estimates that 90% of domestic violence victimsrecant); Lisa Marie De Sanctis, Bridging the Gap Between the Rules of Evidence andJustice for Victims of Domestic Violence, 8 YALE J.L. & FEMINISM 359, 367 (1996) (not-ing that victims do not cooperate with the prosecution in 80 to 90% of domestic violencecases).7Crawford v. Washington, 541 U.S. 36, 53–54 (2004).8Davis v. Washington, 126 S. Ct. 2266, 2273–74 (2006).9Id. at 2283 (Thomas, J., concurring in part and dissenting in part).10Id. at 2280 (majority opinion).11Id.12FED. R. EVID. 801.13FED. R. EVID. 802.14Davis, 126 S. Ct. at 2273.15U.S. CONST. amend. VI.\\server05\productn\H\HLG\30-2\HLG208.txt unknown Seq: 3 2-AUG-07 13:282007] Davis v. Washington 533Court noted that the phrase “witnesses against him” could be interpreted indifferent ways, either “narrowly, to reach only those witnesses who actuallytestify at trial, or more broadly, to reach many or all of those whose out-of-court statements are offered at trial.”16 Prior case law suggests that neitherof these interpretations is sufficient.17 In Ohio v. Roberts, the SupremeCourt held that an out-of-court statement (hearsay evidence) would be ad-missible if it fell under a firmly rooted hearsay exception or if it bore “par-ticularized guarantees of trustworthiness.”18 In 2004, the Supreme Courtoverturned Roberts with its decision in Crawford v. Washington.19In Crawford, the Court held that “witnesses” were those who “beartestimony” and that “testimony is a solemn declaration or affirmation madefor the purpose of


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