Battling the threat: the successful prosecution of domestic violence after Davis v. Washington.

• Author: Breitenbach, Katherine G.

1. INTRODUCTION

   The unique nature of violence between intimates presents unique challenges to prosecutors of domestic violence. In many instances, victims of domestic violence are unable or unwilling to testify. (1) As a result, much of the important evidence available against the accused is hearsay, often statements made by the victim at the time of the incident, raising issues of confrontation under the Sixth Amendment of the United States Constitution. (2) While the recent United States Supreme Court decision, Davis v. Washington, handed down in June of 2006, raised some cause for concern about the continued success of domestic violence prosecution, it also provided guidance for prosecutors facing critical issues of confrontation. (3) For purposes of battling domestic violence through prosecution, the Davis decision will force prosecutors to re-focus efforts and re-shape strategies. This Note examines the progression of Confrontation Clause jurisprudence from Ohio v. Roberts (4) to Crawford v. Washington, (5) to the recent Supreme Court decision in Davis. In particular, this Note will focus on the effect of Davis and its predecessors on the prosecution of domestic violence. Part I discusses the problems involved in the prosecution of domestic violence prior to the Crawford decision, namely the impact of the Confrontation Clause and the emergence of evidence-based prosecution. Part II details the Crawford decision and its influence on the prosecution of domestic violence. Part III carefully examines Davis, its newly articulated standard, and the factual contexts of the dual-decision. Part IV compares the application of the Davis standard in domestic violence cases around the country. Finally, Part V discusses the effect of Davis on the future of domestic violence prosecution and outlines potential solutions for the continued success of such prosecution.

2. PROBLEMS IN PROSECUTION

   Victims of domestic violence are more likely than victims of other violent crime "to recant or refuse to cooperate" in prosecutorial efforts. (6) Some attribute these recants and refusals to the unique aspects of domestic violence. "Domestic violence is a pattern of coercive behavior that includes the physical, sexual, economic, emotional, and psychological abuse of one person by another." (7) Violence between intimates has been identified as a cyclical display of this abusive behavior. (8) Generally, abusive relationships cycle through three stages. (9) First, the "tension-building" stage, where the batterer is controlling of, and verbally abusive toward the victim, exerting power over all aspects of the victim's daily life and demeaning her independent existence and her self esteem. (10) Second, the "violent" stage, where the batterer engages in physically abusive behavior with varying levels of severity. (11) Finally, the "honeymoon" stage, where the batterer "engages in loving contrition" apologizing to the victim for his violent behavior and assuring his continued love and affection. (12) It is the cyclical nature of the abuse that creates the power dynamic between the batterer and the victim, resulting in an endless cycle of domination and control of batterer over victim. (13) Because a victim becomes the expert in reading the signs of her batterer's violence, subtle cues which would not signal a threat to the everyday observer are critical warning signs to a victim that violence is fast approaching. (15) For a victim of domestic violence, there is often no end and no escape, and the emergency is ongoing and unavoidable. (15) Commentators have identified various reasons for the recants and refusals of victims in the prosecution of domestic violence, including fear of reprisal or retaliation by the batterer, intimidation and threat by the batterer, financial dependence of the victim on the batterer, continued emotional attachment to and reuniting with the batterer, issues of custody and child support, fear that the victim or batterer will be deported, distrust of the legal system, and even "genuine belief' by the victim that no wrong was committed. (16)

   In many instances, where a victim is unable or unwilling to testify, much of the important evidence available against the accused is hearsay evidence--often statements made by the victim at the time of the incident--raising issues of confrontation under the Sixth Amendment. (17) For a prosecutor who must prove guilt beyond a reasonable doubt, these significant pieces of persuasive evidence are crucial to successful prosecution.

   The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (18) Prior to 2004, the United States Supreme Court decision in Ohio v. Roberts governed the admissibility of hearsay statements under the Confrontation Clause. (19) Under the Roberts standard, the Confrontation Clause permitted the admission of hearsay evidence where the declarant was unavailable to testify at trial and the statement had sufficient '"indicia of reliability."' (20) Such reliability was demonstrated by evidence either "fall[ing] within a firmly rooted hearsay exception" or bearing "particularized guarantees of trustworthiness." (21)

   As awareness spread as to the cyclical nature of domestic violence, the control that the batterer often holds over the victim, and the tendency for victims to recant or refuse to testify, prosecutors re-focused efforts on evidence other than the testimony of the victim, sparking the emergence of the evidence-based prosecution of domestic violence. (22) "No-drop" policies often accompanied prosecutors' efforts to prosecute without live testimony from the victim, where the decision to prosecute was taken away from the victim and prosecutors moved forward in each case where there existed sufficient evidence to do so. (23) Because domestic violence has increasingly been viewed as a "societal harm" and because the initial reactions and statements of the victim are most likely to be accurate, the evidence-based prosecution of domestic violence and prosecutor "no-drop" policies have been justified in many jurisdictions. (24) In order for a domestic violence prosecutor to admit prior statements made by a victim, however, the statements had to pass under a hearsay exception as well as the Roberts standard. (25)

   To get around the hearsay hurdle, domestic violence prosecutors often relied, and continue to rely, on both the excited utterance and the present sense impression hearsay exceptions. (26) Under the Federal Rules of Evidence, a present sense impression is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." (27) Furthermore, an excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." (28) Courts interpreting an incident of domestic violence as a "startling event" often find that a victim's statements made after such an incident qualify as excited utterances under this hearsay exception. (29) Present sense impressions and excited utterances are most commonly admitted in the form of tape-recorded 911 emergency calls made by the victim, oral statements to officers responding or investigating an alleged incident of domestic violence, or written statements given by the victim in the form of affidavits or police report complaints. (30) Furthermore, in White v. Illinois, the excited utterance hearsay exception was held to be '"firmly rooted,"' thus passing muster under the Roberts standard. (31)

   The determination of prosecutors to prosecute incidents of domestic violence by means of these forms of hearsay evidence was accompanied by a decline, by more than fifty percent, of reported incidents of domestic violence between 1994 and 2003. (32) Not only did the evidence-based strategy provide for successful prosecution without the live testimony of a victim, but it was accompanied by other cumulative benefits. (33) Namely, prosecutors' use of hearsay evidence rather than live victim testimony "diminishes the incentive for abusers to intimidate and otherwise manipulate victims while awaiting trial." (34) Furthermore, the use of hearsay evidence helps to "spare victims [of] the ordeal of 'revictimization' on the witness stand" where victims of domestic violence "must relive the trauma ... by describing it in court." (35) With what seemed to be both a predictable and successful method of prosecuting domestic violence, accompanied by the promise of diminishing incident rates, prosecutors across the country utilized this method to tackle the society-wide problem vigorously. (36)

3. CRAWFORD V. WASHINGTON

   1. The Crawford Decision

      The Roberts standard underwent massive transformation in 2004 when the Supreme Court handed down the Crawford decision. (37 The facts underpinning the Craw ford decision involved statements given to police officers in the context of an interrogation. (38) On August 5, 1999, Sylvia Crawford's husband was arrested after the police discovered the murdered body of Kenneth Lee. (39) Both a potential suspect and witness, Sylvia was taken into custody, received Miranda warnings, and became the subject of a police interrogation. (40) Sylvia did not testify at her husband's trial, evoking the spousal privilege, but a tape-recording of Sylvia's statements during the interrogation, potentially refuting her husband's claim of self defense, were appropriately admitted under the state's hearsay exception. (41) On appeal, Sylvia's husband argued that the admission of Sylvia's tape-recorded statements violated his right to confrontation under the Sixth Amendment. (42)

      Writing for the majority, Justice Scalia examined the historical development of Sixth Amendment Confrontation Clause jurisprudence. (43) Based on this historical analysis...