BYU Law Review Volume 2009|Issue 1 Article 1 3-1-2009 The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence Kimberly D. Bailey Follow this and additional works at:https://digitalcommons.law.byu.edu/lawreview Part of theCriminal Law Commons, and theFamily Law Commons Recommended Citation Kimberly D. Bailey,The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence, 2009 BYU L. Rev.1 (2009). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2009/iss1/1 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. BAILEY.PP3 2/13/2009 5:54 PM The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence Kimberly D. Bailey Abstract: Victims of domestic violence often do not want to testify in court, and if they do, they often recant and/or testify on behalf of their batterers. To overcome this challenge in prosecuting these types of cases, prosecutors have implemented a practice of victimless prosecutions where the out-of-court statements of victims are used in lieu of their live testimony in court. This practice has been limited, however, by the United States Supreme Court cases Crawford v. Washington and Davis v. Washington, which limit the use of out-of-court testimonial statements in criminal cases when the defendant has not had an opportunity to cross-examine the witness. For this reason, some out-of- court statements are no longer admissible in domestic violence trials. In evaluating how this change should affect the future prosecutions of domestic violence cases, this Article critiques the practice of victimless prosecutions from the perspective of the victim. Specifically, this Article proposes that scholars consider whether victimless prosecutions have been effective in meeting the goals of victim safety, gender equality, and autonomy. Drawing upon feminist scholarship and literature on the legal silencing of subordinate groups, it explores whether victimless prosecutions may discourage women from speaking, which is an important act of empowerment. More importantly, because victimless prosecutions remove victims from the prosecution process, they no longer interact and engage in a dialogue with the criminal justice system. This legal silence may allow the legal system to ignore victims and to pursue its own agenda of successful prosecutions, may limit the criminal justice system’s ability to get direct input from victims on whether domestic violence laws and policies are effective, and may make victims complicit in their subordination as women. While this Article acknowledges that  Assistant Professor of Law, Chicago Kent College of Law. B.A. 1995, Indiana University; J.D. 2000, The University of Michigan Law School. I would like to thank Katharine K. Baker, Norman Bay, John S. Beckerman, Dorothy A. Brown, Pat Chew, Jack Chin, Brietta R. Clark, Sarah K. Harding, Cynthia Lee, Donna Lee, Melissa Murray, Alexandra Natapoff, Song Richardson, Gary Williams, and participants of the 2008 Joint Conference of the Western Law Teachers of Color and Conference of Asian Pacific American Law Faculty for their extremely helpful comments on various drafts of this Article. 1 BAILEY.PP3 2/13/2009 5:54 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2009 victimless prosecutions may be appropriate for some victims, given the potential harm of victim silencing and the fact that Crawford and Davis will limit the use of victimless prosecutions in at least some cases, the criminal justice system should evaluate whether there are victims who can and will testify. Directly addressing some of the reasons that victims do not testify may limit victim silence, which may be a better long-term approach to the domestic violence problem. INTRODUCTION In 2004, the United States Supreme Court issued a landmark decision, Crawford v. Washington,1 which changed the landscape of the Sixth Amendment’s Confrontation Clause jurisprudence. Crawford held that out-of-court statements that are “testimonial” cannot be admitted to prove the truth of the matter asserted in a criminal trial unless (1) the declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant.2 After Crawford, it was not clear how this decision might impact domestic violence prosecutions. Specifically, Crawford foreshadowed the possible end of what some call victimless prosecutions,3 in which victims’ statements from 911 calls and police statements are used in lieu of the victims’ live testimony at trial. After much anticipation, the United States Supreme Court finally spoke on this issue in Davis v. Washington.4 Unfortunately, the language that the Court adopted in Davis did not provide the definitive answer that prosecutors, defense counsel, and lower courts anticipated.5 The Court held that out-of-court statements are nontestimonial when they are “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to 1. 541 U.S. 36 (2004). 2. Id. at 68. 3. These types of prosecutions are also sometimes referred to as “evidence based” prosecutions. See, e.g., National District Attorneys Association, Evidence Based Prosecution of Domestic Violence Cases, http://www.ndaa.org/education/ndaa/nac_evidence_based_ prosecution_domestive_violence_cases.html (last visited Jan. 20, 2009). 4. 547 U.S. 813 (2006). 5. See id. at 834 (Thomas, J., concurring in part and dissenting in part) (arguing that the majority’s test in Davis is unpredictable); Deborah Tuerkheimer, Crawford’s Triangle: Domestic Violence and the Right of Confrontation, 85 N.C. L. REV. 1, 20–21 (2006) [hereinafter Tuerkheimer, Crawford’s Triangle] (arguing that Davis offers little guidance to lower courts or predictability to litigants). 2 BAILEY.PP3 2/13/2009 5:54 PM 1] Deconstructing the Sound of Silence meet an ongoing emergency.”6 These statements are testimonial when “the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”7 After Davis, there is no question that in some circumstances, victimless prosecutions will no longer be a viable option for prosecutors of domestic violence cases. Specifically, if lower courts are true to Crawford, many out-of-court statements should no longer be admissible in domestic violence trials because the Crawford opinion expressed a specific animus toward the government’s involvement in the production of evidence. In preparation for domestic violence trials, government actors frequently use statements that are produced in a sophisticated manner. The purpose of this Article is not to provide a critique of the Davis and Crawford opinions.8 Instead, given the limitation on the use of victimless prosecutions, this Article attempts to grapple with how prosecutors should handle domestic violence cases post- Crawford and post-Davis. As part of my analysis, I critique the practice of victimless prosecutions from the perspective of the victim. Specifically, I invite scholars to consider whether victimless prosecutions have actually helped domestic violence victims in the manner that they were originally intended to help them. In addition, scholars should explore whether these types of prosecutions might have negative, although unintended, consequences for domestic violence victims. Indeed, the term victimless prosecution is itself problematic because it suggests that there is no victim in this legal process. Of course, there is a victim, but the victim’s presence, specifically her voice, is limited. The practice of victimless prosecutions actually 6. Davis, 547 U.S. at 822. 7. Id. 8. For examples of articles that critique these opinions, see Myrna S. Raeder, Domestic Violence Cases After Davis: Is the Glass Half Empty or Half Full?, 15 J.L. & POL’Y 759 (2007) (arguing that Davis is unsatisfactory for both prosecutors and defense lawyers because it still is not clear which out-of-court statements violate the Confrontation Clause in the domestic violence context), Tuerkheimer, Crawford’s Triangle, supra note 5, at 5 (criticizing the Court’s analysis of the Confrontation Clause in the domestic violence context), and Deborah Tuerkheimer, Exigency, 49 ARIZ. L. REV. 801, 825–34 (2007) [hereinafter Tuerkheimer, Exigency] (criticizing the Court’s analysis of the Confrontation Clause in the domestic violence context). 3 BAILEY.PP3 2/13/2009 5:54 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2009 arose out of necessity, and I certainly do not want to suggest that prosecutors or other legal actors in the criminal justice system actively seek to limit the voice of domestic violence victims. Indeed, domestic violence victims do not testify for a variety of reasons, many of which have nothing to do with the criminal justice system or its actors.9 Yet, the reality is that once the victim’s statement is taken from a 911 call or from a police officer, the prosecutor need not hear from her again. We do hear a limited form of the victim’s voice at trial, but victimless prosecutions arguably lead to a practice where the victim’s voice is not heard throughout most of the prosecution process, nor is it considered in the development of domestic violence policy. In addition, when the prosecution of the batterer is not in the victim’s best interest,10 her wishes may be ignored. Part I of this Article discusses the history of domestic violence criminal law and the role that the women’s movement played in the evolution of the law. Specifically, the issue of domestic violence became more of a public issue rather than just a private one. By focusing on this important issue, the women’s movement had two important goals: (1) to keep women physically, mentally, and emotionally safe;11 and (2) to attack the legal and political structures that subordinate women and that allow domestic violence to exist in the first place. Part I also discusses how this movement led to aggressive arrest and prosecution policies. These policies ultimately led to victimless prosecutions, which allowed prosecutors to aggressively prosecute domestic violence perpetrators without the testimony of victims, who often do not want to testify. 9. See infra Part I.D. 10. See infra Part I.C.3 (discussing how some experts and scholars argue that mandatory arrest and prosecution policies may make violence worse for some domestic violence victims). 11. While men can also be victims of domestic violence, eighty-five percent of victimizations by intimate partners in 2001 were against women. Callie Marie Rennison, Intimate Partner Violence, 1993–2001, BUREAU JUST. STAT. CRIME DATA BRIEF, Feb. 2003, at 1, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ipv01.pdf. In addition, domestic violence occurs in both heterosexual and homosexual relationships. Scholars have discussed the importance of recognizing that domestic violence occurs in circumstances outside of the woman victim/heterosexual relationship dynamic. See, e.g., Phyllis Goldfarb, Describing Without Circumscribing: Questioning the Construction of Gender in the Discourse of Intimate Violence, 64 GEO. WASH. L. REV. 582 (1996); Elizabeth M. Schneider, Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Woman-Abuse, 67 N.Y.U. L. REV. 520 (1992). While additional dynamics may be explored in future works, this Article focuses on women victims in heterosexual relationships. 4 BAILEY.PP3 2/13/2009 5:54 PM 1] Deconstructing the Sound of Silence Part II discusses Crawford and the sophisticated manner in which statements from 911 calls and police statements are gathered and preserved for use at domestic violence trials. Based on Crawford’s specific concern with the involvement of government actors in the production of evidence, this Part argues that lower courts should interpret Davis to limit this type of sophisticated practice. Part III then argues that while the original intent of victimless prosecutions may have been to protect women, there is no real evidence that all women are actually safer when they do not testify than when they do testify. In light of this lack of evidence, I draw upon feminist scholarship and literature on the legal silencing of subordinate groups to query whether a nondiscriminatory use of victimless prosecutions is effective in realizing the women’s movement’s original goals of safety, gender equality, and autonomy. Victimless prosecutions may encourage women to remain silent when speech is an important act of empowerment in and of itself. Most obviously, victims are silent because they are not testifying and speaking out against their batterers. More importantly, because victimless prosecutions remove victims from the prosecution process, victims no longer interact and engage in a dialogue with the criminal justice system. This legal silence may be problematic for three reasons. First, it may allow the legal system to ignore victims and to pursue its own agenda of successful prosecutions when the needs of these victims should be an important focus of legitimate domestic violence laws and policies. Second, it may limit the criminal justice system’s ability to get direct input from victims on whether these laws and policies are effective. Third, it may make victims complicit with their own subordination as women. Part IV of this Article, therefore, argues that given the legal limitations that Crawford and Davis place on victimless prosecutions and the possibility that these types of prosecutions might be harmful for some victims, we should develop ways to directly address the reasons that women may hesitate to testify. While one response to Crawford and Davis could be that prosecutors automatically dismiss most prosecutions because most women recant or refuse to testify,12 12. Tom Lininger conducted surveys that found a substantial drop in domestic violence prosecutions after Crawford. Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. REV. 747, 749–50 (2005). Specifically, he found that during the summer of 2004 half of the 5 BAILEY.PP3 2/13/2009 5:54 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2009 a better response would be to find more ways to encourage women to participate in the system. I discuss three key reasons why women fail to participate: a lack of material resources, a lack of protection from batterers, and poor interactions with the criminal justice system. I then use Chicago’s “Target Abuser Call” (“TAC”) program as a potential model of a program that, at this time, seems to be successful in encouraging victim participation by addressing some of these reasons. I caution, however, that there are two reasons that a systematic implementation of similar programs will be difficult. First, jurisdictions are plagued by limited resources. Second, many domestic violence victims and legal actors may be skeptical that victims can and will testify. For this reason, legal actors may be tempted to fit as many statements as possible under Davis’ “nontestimonial” category instead of determining whether a victimless prosecution is necessary or desirable in a particular case. To address both of these issues, I apply Dan Kahan’s “gentle nudges” approach to “sticky norms” and suggest that jurisdictions might have to implement programs similar to TAC on an incremental basis by first focusing on a small subset of victims of high-risk offenders. Kahan has theorized that small changes over time are the most successful in creating institutional change in the enforcement of laws by legal actors. Incremental changes also put less of a burden on jurisdictions that have limited financial resources. I. THE HISTORY OF DOMESTIC VIOLENCE CRIMINAL LAW PRE- CRAWFORD A. Domestic Violence: A Private Matter Domestic violence is a serious problem in the United States. Between 2001 and 2005, twenty-two percent of nonfatal violent crimes against women involved intimate partner violence.13 In addition, thirty percent of all female murder victims were killed by an intimate during this time period. It is difficult to know the exact domestic violence cases set for trial in Dallas County, Texas, were dismissed because of evidentiary problems. Id. In addition, in a survey of over sixty prosecution offices in California, Oregon, and Washington, seventy-six percent indicated that their offices were more likely to drop domestic violence charges when the victims recant or refuse to cooperate post-Crawford. Id. at 750. 13. SHANNON CATALANO, U.S. DEP’T JUST., INTIMATE PARTNER VIOLENCE IN THE UNITED STATES (2007), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ipvus.pdf. 6 BAILEY.PP3 2/13/2009 5:54 PM 1] Deconstructing the Sound of Silence figures regarding domestic violence, however, because of the likelihood of underreporting.14 While domestic violence has always been prevalent in the United States, this country has not always criminally sanctioned it. By 1920, wife beating was illegal in all states.15 Yet for several decades, law enforcement and prosecutors did little to enforce these laws.16 The criminal legal system treated disputes between a husband and his wife as a private matter, and if the police did respond to a call, the typical response was to separate the parties involved and to advise the boyfriend or spouse to calm down.17 Two important catalysts, however, eventually moved domestic violence away from the private sphere into the public sphere: the women’s movement18 and civil lawsuits against cities that failed to protect battered women.19 B. Domestic Violence: A Move to the Public Domain Participants in the women’s movement were concerned about domestic violence for two main reasons. First, they worried about the emotional, physical, and mental safety of women.20 Second, they viewed domestic violence as a manifestation of women’s legal and political subordination both inside and outside of the home.21 Frustrated that the police minimized or ignored domestic violence, feminists made the crime of domestic violence an important public issue in the 1960s and 1970s. Specifically, they criticized state 14. Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 11 (1991). 15. Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1857 (1996). 16. Reva B. Siegel, “The Rule of Love”: Wife Beating As a Prerogative and Privacy, 105 YALE L.J. 2117, 2170–71 (1996). 17. Id. 18. Specifically, members of the movement protested, created shelters where victims could find refuge, and led educational campaigns designed to change attitudes about domestic violence. Linda G. Mills, Commentary: Killing Her Softly: Intimate Abuse & the Violence of State Intervention, 113 HARV. L. REV. 550, 557 (1999); see also Siegel, supra note 16, at 2171. 19. Mills, supra note 18, at 558–59; Siegel, supra note 16, at 2171. 20. Mills, supra note 18, at 557. 21. Hanna, supra note 15, at 1854; see also Schneider, supra note 11, at 527; Siegel, supra note 16, at 2128–29. 7 BAILEY.PP3 2/13/2009 5:54 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2009 inaction in curbing the problem of domestic violence and advocated the reform of institutional responses in the criminal justice system.22 Large civil awards against cities that failed to protect women who were victims of domestic violence also created a sea change in the way that law enforcement reacted to reports of domestic abuse. In Sorechetti v. City of New York, the New York Court of Appeals awarded the plaintiff a $2 million judgment.23 In this case, the plaintiff’s father attacked her with a fork, knife, and screwdriver, and he tried to dismember her leg with a saw.24 The court found that the police had a special duty to protect a battered woman and her daughter and that this duty was breached when the police failed to investigate a report that the daughter had not returned from a visit with her father.25 Similarly, Tracy Thurman received $2.9 million dollars after suing the city of Torrington, Connecticut.26 Thurman’s estranged husband had been put on probation for smashing the windshield of her car while she was still in it.27 Yet, even after he repeatedly violated the terms of his probation and restraining order, the police failed to arrest him.28 On one particular day, Thurman called the police after her estranged husband violated his restraining order.29 Before the police officer arrived, however, her husband stabbed her repeatedly and severely injured her.30 The court found that the police had violated the Fourteenth Amendment’s Equal Protection Clause by treating violence by male intimates differently from violence committed by strangers.31 22. Mills, supra note 18, at 557. It is also worth noting that there was a women’s movement in the 1850s that also advocated against domestic violence and in favor of a structural remedy against this problem. Siegel, supra note 16, at 2128–29. 23. Sorechetti v. City of New York, 482 N.E.2d 70 (N.Y. 1985). 24. Id. at 72–74. 25. Id. at 76–77. 26. Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984); Mills, supra note 18, at 1525–26. 27. Thurman, 595 F. Supp. at 1525. 28. Id. 29. Id. at 1525–26. 30. Id. 31. Id. at 1527–29. 8 BAILEY.PP3 2/13/2009 5:54 PM 1] Deconstructing the Sound of Silence C. The Rise of Mandatory Policies In response to both the women’s movement and civil litigation against police departments, legislators and prosecutors took increased action to curb domestic violence on an institutional level. As discussed below, states adopted mandatory arrest and prosecution policies. These policies, and their results, however, received mixed reactions from advocates of domestic violence victims. 1. Mandatory and pro-arrest policies In an attempt to increase the institutional response of the criminal justice system, Oregon passed the first mandatory arrest statute in the country in 1977.32 The statute required police to arrest a suspect if there was probable cause that he had committed a misdemeanor domestic violence offense.33 In the early 1980s, Lawrence Sherman, supported by the National Institute of Justice (“NIJ”), conducted a study of the Minneapolis Police Department.34 Sherman conducted a field experiment of misdemeanor spousal abuse with three intervention strategies: arrest, ordering the suspect away from the scene for twenty-four hours, and trying to restore order.35 Based on the results from this experiment, Sherman concluded that arrest was the most effective treatment in reducing the likelihood of renewed violence.36 As a result, in 1984, the United States Attorney General recommended that arrest be the standard police response to domestic violence offenses.37 In 1994, Congress passed the Violence Against Women Act (“VAWA”), which included a provision authorizing the Attorney General to make grants available to state and local governments that implemented mandatory or pro-arrest programs.38 32. Joan Zorza, Mandatory Arrest for Domestic Violence: Why It May Prove the Best First Step in Curbing Repeat Abuse, 10 CRIM. JUST. 2, 4 (1995). 33. Id. 34. Richard A. Berk et al., Studies: A Bayesian Analysis of the Colorado Springs Spouse Abuse Experiment, 83 J. CRIM. L. & CRIMINOLOGY 170, 170–71 (1992). 35. Id. 36. Id. 37. Hanna, supra note 15, at 1859. 38. 42 U.S.C.S. § 3796hh (LexisNexis 2008). It is also worth noting that VAWA originally included a civil remedy provision that was intended to provide victims of “gender motivated violence” a federal civil cause of action against their perpetrators. 42 U.S.C.S. § 9