The lessons of People v. Moscat: confronting judicial bias in domestic violence cases interpreting Crawford v. Washington.

• Author: Jaros, David

1. INTRODUCTION

   Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. (1) Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases--911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors--combine to make the introduction of "out-of-court statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set of political and institutional forces, it is necessary to appreciate those influences to fully understand trial courts' interpretation of the scope and import of the Crawford decision.

   As a public defender in the Bronx, I witnessed, first hand, the excitement and confusion that followed the Crawford decision at the trial level. In the immediate aftermath of Crawford, e-mails flew about our office proclaiming the death knell of "evidence based prosecutions," the practice of prosecuting domestic violence cases without the cooperation of the complaining witness. In court, defense attorneys eagerly pushed broad interpretations of the new decision, arguing that the district attorney could no longer rely solely on 911 tapes and police testimony to prosecute defendants in domestic violence cases. In this context, a seemingly typical domestic assault case, People v. Moscat, was winding its way through the court system. (2)

   Mr. Moscat was charged with hitting and threatening his girlfriend. The police had been summoned to the scene by a 911 call, but several weeks after Mr. Moscat's arrest, the complaining witness indicated she was not willing to cooperate with his prosecution. The case seemed to provide an ideal opportunity for the trial judge, The Honorable Ethan Greenberg, to write the first decision in New York State interpreting the scope of Crawford and its impact on prosecutors' practice of relying on out-of-court statements to prosecute domestic violence cases. (3) In an environment that has become uniquely sensitized to the needs of the prosecution and the complaining witness, Judge Greenberg wrote a decision interpreting Crawford in the narrowest possible terms. The Moscat decision has been one of the most frequently cited cases in the country interpreting Crawford. (4) Yet, unbeknownst to the numerous courts citing the decision, when Moscat was written neither side nor the judge had heard the 911 tape; the issues were not briefed by either side; and the reasoning of the decision was based upon facts which turned out to be entirely false. (5) No case better illustrates the peculiar circumstances that shape interpretations of the Crawford decision in the domestic violence context.

   Through the lens of Moscat, this Essay seeks to identify how trial courts' narrow readings of Crawford have been influenced by the forces that shape the way domestic violence cases are prosecuted. By recognizing how the dynamics of domestic-violence prosecutions mold judicial reasoning, one can better understand and evaluate trial courts' post-Crawford Sixth Amendment decisions. In turn, post-Crawford jurisprudence reveals a great deal about the environment in which domestic violence cases are tried, the presumptions that shape judicial opinions in the domestic violence context, and the obstacles many defendants face when they are accused of committing such crimes.

2. ROBERT'S RULES: THE CONFRONTATION CLAUSE PRIOR TO CRAWFORD

   The plain language of the Sixth Amendment appears to guarantee defendants an absolute right to confront their accusers in court. (6) But as Justice Scalia noted in Crawford, the Sixth Amendment's text alone does not resolve the issue. (7) One could plausibly interpret the Sixth Amendment as guaranteeing only the right to confront those individuals who actually testify at trial. (8) Prior to the Crawford decision, courts had largely conflated Confrontation Clause analysis with the rules governing the admission of hearsay. This was the result of the Supreme Court's determination that the Sixth Amendment did not bar the admission of all out-of-court statements, but rather excluded only statements of questionable reliability. In Ohio v. Roberts, the Court explained that the Sixth Amendment did not proscribe the admission of hearsay if the declarant was shown to be unavailable for trial and the statement bore adequate "indicia of reliability." (9) Moreover, the Court held that hearsay falling within a "firmly rooted hearsay exception" was presumptively reliable and that its admission posed no Sixth Amendment difficulty. (10) Statements that failed to qualify for admission under these exceptions could still be found admissible if there were a separate showing that the statement had "particularized guarantees of trustworthiness." (11)

   While the Court professed in later decisions that it had been careful not to equate the Confrontation Clause's prohibitions with the general rules governing the admission of hearsay statements, (12) in practice Confrontation Clause analysis was rapidly subsumed by the hearsay rules. Even the requirement that the prosecution demonstrate that the witness was unavailable to testify at trial, which arguably bestowed some additional Sixth Amendment limitations on the admission of out-of-court statements, was substantially eroded in subsequent cases. Six years after the decision in Roberts, in a case examining the admission of the out-of-court statement of a non-testifying co-conspirator, the Supreme Court held that Roberts merely established an unavailability requirement for prior testimony, not for all out-of-court statements. (13) Finally, in White v. Illinois, the unavailability requirement was largely eliminated when the Court refused to impose such a requirement on the introduction of statements that fit within the hearsay exceptions for excited utterances and statements made for purposes of medical diagnosis or treatment. (14) By 1992, an out-of-court statement which was deemed to satisfy a hearsay exception was thus generally admissible under the Sixth Amendment as well.

   The merger of Confrontation Clause analysis and the hearsay rules was vulnerable to a variety of criticisms. First, by focusing solely on the reliability of the statement, the Roberts framework ignored the "strong symbolic purpose" served by a face-to-face confrontation between the accused and his accuser. As the Court had explained in Coy v. Iowa, "[t]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as essential to a fair trial in a criminal prosecution." (15) Second, the exceptions to the general prohibition against hearsay were themselves criticized as commentators questioned the psychological presumptions used to justify them. For example, the excited utterance rule is based upon the questionable presumption that a person under the sway of excitement caused by a startling event will lack the reflective capacity essential for fabrication and, consequently, that the person's statements should be considered spontaneous and reliable. (16) This presumption has been attacked by a host of critics who have asserted not only that empirical evidence suggests that it takes little time for people to craft a lie, but that regardless of whether a person deliberately lies, an excited state does nothing to ensure that a statement is free of honest mistake due to erroneous perception or memory. (17) Finally, as Justice Scalia detailed in the Crawford decision, the subjective nature of the Roberts framework, which allowed for the admission of hearsay testimony if a statement was shown to have "particularized guarantees of trustworthiness," resulted in contradictory holdings in which various courts found different statements to be reliable based on contradictory factors. (18)

   In 1992, Justice Thomas expressed his concern that Confrontation Clause jurisprudence had "evolved in a manner that is perhaps inconsistent with the text and history of the Clause itself." (19) In a concurrence which would largely presage the majority opinion in Crawford, Thomas described the historical basis for the right to confront witnesses and challenged the entire Roberts framework. (20) It would be twelve more years before the Court finally consigned Ohio v. Roberts to the dust bin of history. When Crawford was decided, however, it challenged longstanding prosecutorial practices and threaten to upset an entire methodology for the treatment of domestic violence cases.

3. CRAWFORD V. WASHINGTON

   In Crawford, the Supreme Court reversed decades of Confrontation Clause jurisprudence holding that, no matter how reliable, a "testimonial statement" cannot be admitted against a defendant unless the accused has had an adequate opportunity to cross-examine the witness who made the statement. (21) The Court's "about-face" was predicated in large part upon historical analysis which suggested that the Framers intended the Confrontation Clause to prevent a reoccurrence of the abusive method of "trial by affidavit," once practiced by magistrates in sixteenth and seventeenth century England. (22) The most notorious of such trials was the prosecution of Sir Walter Raleigh, in which the defendant was convicted and sentenced to death largely on the basis of a deposition taken from his alleged accomplice, Lord Cobham. At his trial, Sir Walter purportedly demanded that the magistrates "Call my accuser before my face." (23) The magistrates refused, however, and elected instead to simply read Lord Cobham's written ex-parte statements to the jury. (24) The Crawford court reasoned that the Confrontation Clause must be understood principally as a guard against such unfairness, barring the introduction of...