Crawford v. Washington: the End of Victimless Prosecution?

• Publication year: 2004

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 2WINTER 2005

Crawford v. Washington: The End of Victimless Prosecution?

Andrew King-Ries(fn*)

I. Introduction

Domestic violence offenses are difficult to prosecute because the batterer's actions often make the victim unavailable to testify. Since the mid-1990s, prosecutors have pursued "victimless" prosecutions(fn1) to combat the problem.(fn2) Victimless prosecutions seek to introduce reliable evidence without the victim's in-court testimony, often to maintain the victim's safety or to avoid re-victimizing the victim.(fn3) The victimless prosecution is based largely on the admission of hearsay statements that a victim makes to 911 operators, police officers, doctors, nurses, paramedics, and social workers.(fn4) Victimless prosecution has been a highly successful tool in society's efforts to eradicate domestic violence and it is made possible by using the unavailable victim's admissible hearsay statements. In its most recent term, the United States Supreme Court decided Crawford v. Washington(fn5) and held that the Confrontation Clause of the Sixth Amendment bars admission of certain hearsay statements of unavailable witnesses.(fn6) With its decision in Crawford, the Supreme Court placed the future of victimless domestic violence prosecutions in doubt.(fn7)

This article will explore the Crawford decision in the context of victimless prosecutions. Part II will discuss current trends in victimless domestic violence prosecution and the power and control dynamics of domestic violence relationships, including how these dynamics relate to, and create the need for, victimless prosecutions. Part III will discuss the Crawforddecision. Part IV will explore possible interpretations of Crawford within the context of victimless domestic violence prosecutions. Part V will explain why courts should interpret Crawford in a way that allows prosecutors to continue to prosecute batterers without a participating victim.

II. Domestic Violence and the Victimless Prosecution

Near midnight, Stephanie dials 911. She reports to the 911 operator that her husband, Frank, punched her in the face, dragged her by the hair, and threw her down the stairs. Stephanie is crying and screaming. At times, her speech is unintelligible. The operator asks her where Frank is and whether he has any knives or guns. Stephanie is not sure; she thinks he has left the apartment. In response to questions, Stephanie describes Frank as six feet tall with black hair and a medium build. She gives the operator Frank's last name and his birth date. Stephanie begs the operator to tell the officers to hurry. She says that Frank told her that he would kill her if she called the police. As the operator assures Stephanie that the police are on the way, Stephanie screams that Frank has a knife. Sounds of a scuffle are heard; Stephanie screams, "You cut me. You cut me."

Officer Johnson is the first to arrive. He finds Stephanie lying in a fetal position on a bed. He sees that she is bleeding from a severe laceration on her forearm. Stephanie, shaking and crying, tells Officer Johnson that Frank tried to kill her. Officer Johnson secures the scene and locates a bloody knife on the kitchen counter. Frank is not there. Officer Johnson photographs the cut on Stephanie's arm and the blood on her sheets. He places the knife and several photographs of Stephanie and Frank into evidence.

Stephanie is transported to the hospital emergency room. There, she tells Doctor Jones that Frank cut her and threw her down the stairs. Dr. Jones sutures the laceration on Stephanie's arm and orders blood tests.

Robin, a hospital social worker, visits Stephanie. Stephanie tells Robin that Frank is her husband of seven years and that he regularly beats her and forces her to have sexual intercourse. Frank suspected that she was seeing another man and confronted her. Stephanie reports that Frank did not believe her denials and started to beat her. According to Stephanie, Frank asserted that he would never go back to jail with her alive.

Several days later, Detective Smith meets with Stephanie and takes additional photographs of Stephanie's injuries. These photographs document severe bruising to Stephanie's back, legs, and face. Detective Smith also discovers that Frank had been convicted of an assault against Stephanie. In the prior case, Stephanie called 911 and was treated by a doctor for broken bones in her wrist and index finger. Stephanie testified at the earlier trial, and Frank was sentenced to six months in jail with credit for time served.

Prior to Frank's current trial, Stephanie informs the prosecution that she will not testify. Stephanie indicates that Frank threatened to kill her if she sent him back to jail. She also states that Frank was the sole provider for her household, so she cannot afford to have him in jail. The prosecution is unable to subpoena Stephanie or secure her presence for an interview with the defense.(fn8)

A. Domestic Violence Dynamics and Criminal Prosecutions

Millions of American women are the victims of domestic violence each year; in fact, domestic violence is the leading cause of injury to women.(fn9) Nearly half of all American women will experience a violent domestic relationship in their lifetimes.(fn10)

The battering relationship is not about conflict between two people; rather, it is about one person exercising power and control over the other.(fn11) Battering is a pattern of verbal and physical abuse, but the batterer's behavior can take many forms.(fn12) Common manifestations of that behavior include imposing economic or financial restrictions, enforcing physical and emotional isolation, repeatedly invading the victim's privacy, supervising the victim's behavior, terminating support from family or friends, threatening violence toward the victim, threatening suicide, getting the victim addicted to drugs or alcohol, and physically or sexually assaulting the victim.(fn13) The purpose of the abusive behavior is to subjugate the victim and establish the batterer's superiority.(fn14)

Historically, the domestic violence victim's refusal to testify precluded prosecution.(fn15) Jurisdictions relied exclusively on the victim to determine whether to proceed with a domestic violence prosecution.(fn16) While the charging decision has always remained with the State, the perception that the victim presses charges reflected reality.(fn17) Many jurisdictions required the domestic violence victim to swear out a complaint after the incident, assuring the prosecution that the victim was willing to participate.(fn18) When the victim refused to appear for trial, prosecutors' offices traditionally dismissed the case.(fn19) This remains the status quo in a surprising number of jurisdictions in America.(fn20)

In any type of criminal case, a victim's refusal to participate in the trial creates credibility concerns and undermines the integrity of the prosecution. At a minimum, these situations require the prosecution to reassess the validity of the case and the decision to proceed. In an effort to achieve a just result and to decide whether to go forward with the prosecution, the prosecutor will consider the need for the victim's testimony, the possible reasons for the refusal, the reliability of possible recantations, the recantations in connection with all the other evidence in the case, and the victim's desires. Often, an assessment of these factors weighs in favor of dismissing the charges because the victim's refusal to testify poses insurmountable proof problems or reflects reasons to question the validity of the initial reports. This assessment is particularly difficult in domestic violence prosecutions because the batterer should not, through manipulation of the victim by threats of further abuse, have de facto control over the State's case.(fn21)

B. Victimless Prosecutions

In recent years, scholars have increased prosecutors' awareness of the battering power and control dynamic, demonstrating that the batterer's coercion can result in the victim refusing to testify.(fn22) Supporting research casts doubt on the victim's autonomy in refusing to testify.(fn23) In addition, the research challenges the prosecution's unwillingness to proceed without the victim.(fn24) In several jurisdictions, prosecutors' offices have responded to this greater recognition of the battering dynamic with victimless domestic violence prosecutions.(fn25) Prior to the development of victimless prosecutions of domestic violence cases, the State would not have been able to hold Frank accountable for his assault on Stephanie if she chose not to testify.

The validity of a victimless prosecution is based on three premises. First, domestic violence is a societal harm.(fn26) Second, the victim's initial description of a violent incident is often the most accurate.(fn27) Third, the State should give credence to initial reports where those reports are consistent with other evidence, regardless of whether the victim is willing to participate in the prosecution.(fn28)

First, domestic violence harms society even though incidents of domestic violence arise only among partners and families. While the behavior occurs within a personal relationship, the harm extends beyond the victim and dramatically affects communities.(fn29) Each year, domestic violence is responsible...