Adam M. Krischer makes the rather extreme assertion that "domestic violence almost always involves forfeiture." I agree that forfeiture does occur frequently in domestic violence cases, and even that "the domestic violence itself may have procured the victim's unavailability." But the burden of proving forfeiture must remain squarely on the prosecution's shoulders. There should not be an attempt to create anything like a presumption that if the case involves domestic violence the accused has forfeited his confrontation right, or even more modestly that if the complainant is no longer willing to testify in accordance with her initial statement then intimidation is the cause. Mr. Krischer goes into considerable, and useful, detail as to how prosecutors may prove forfeiture. But he offers little guidance on what prosecutors can and should do, notwithstanding intimdation, to increase the chance that the complainant will testify live subject to cross-examination -- though he does say, "A properly supported victim, connected to services and counseling, is more likely to be cooperative than not, and a cooeprative victim, willing and able to testify, makes Crawford a moot point." When prosecutors have believed they needed to secure live testimony by the complainant or face dismissal of the charge, some have not hesitated to exert considerable pressure, including jailing the complainant. Whatever the merits of that approach, courts should not be so ready to reach a conclusion of forfeiture that prosecutors will have little or no incentive to preserve the accused's right to confront.
The issue also includes a list of predicate questions, prepared by Cindy Dyer, Chief of the Family Violence Unit of the Dallas County District Attorney's Office, to ask when examining at a preliminary hearing or at trial a police officer who has taken a statement from a complainant. If the complainant made statements in response to questions by an officer, then the prosecutor is advised to include the following in the examination:
1. Were the statements taken "during the course of an interrogation"?Apparently the thought is that if the desired answers are received -- and even apart from the leading nature of three of these questions we can be sure that the police will understand what the desired answers are -- then the complainant's statements should not be deemed to be testimonial. For the reasons already discussed in my post on The Interrogation Bugaboo, this reflects a deficient understanding of the confrontation right.
2. What was the purpose of your questions?
3. Were your questions to her an interrogation or merely part of your initial investigation?
4. Were these questions asked to determine if a crime had even occurred?