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?
5 comments:
From Fred Moss, SMU
It should not be hard for a DA to prove in a domestic violence case that the defendant's abuse alone has caused the complaining witness to be too frightened to testify.
We can be confident that the prosecution's burden of proving unavailability is only by a preponderance (Bourjaily) and that the proof need not be admissible under the evidence rules.
Thus, the DA can simply put on someone (cop, investigator) who spoke with the witness or a relative of the witness who said the complaining witness was too afraid to testify.
Bam! The Confrontation Clause vanishes under Rich's theory that the defendant's conduct toward the witness need not be motivated by a desire to intimidate the witness into not testifying.
Indeed, let's not stop with murder, assaults where the victim is too injured to testify, and domestic violence cases. There is no logical/rational reason to confine the broadened forfeiture doctrine to these cases. Any criminal case involving physical force or the threat thereof can go forward without the victim if fear produced by the underlying crime is the reason the victim won't testify.
The CC, it seems, has a huge hole in it. The only real protection of the defendant from "evidence only" convictions is, ironically, the leaky old hearsay rule.
Rich's position is certainly right intuitively. You can't shoot your parents and seek the mercy due an orphan. But, the effects of the position in general are fairly frightening unless some limitations to forfeiture can be fashoned. As of yet, I don't see any.
Well, Fred is certainly right that Bourjaily says that preponderance is the standard for determining predicate evidentiary issues. But we should bear in mind a few points. First, Bourjaily and other cases in this line only set a floor; nothing prevents a jurisdiction from taking a more stringent standard in an appropriate case, and some courts have adopted such a standard. Second, I don't believe the Supreme Court has ever considered the precise question of what standard of persuasion should be applied to determine whether the accused has foreited confrontation rights, and it is possible that the Court would say that this context is sufficiently different from others that a higher standard is necessary as a matter of constitutional law. Third, Crawford altered the status quo so broadly and dramatically that there is good reason to re-evaluate in the new context issues, like this one of the standard of persuasion in a forfeiture case, that bear closely on the confrontation right.
In short, I don't think that a sttepped-up standard of persuasion -- something like clear and convincing evidence -- is precluded here. And in fact I thin such a standard probably ought to be required in forfeiture cases. A higher standard should put some effective contraints on the use of forfeiture doctrine.
In response to Paul's comment: I may have created confusion by failing to define terms. By "standard of persuasion" I mean the level of confidence that a fact-finder must have to reach a given outcome. I'm avoiding the more common term burden of proof because this is just one component of the overall burden of proof. On the merits in a criminal case, the standard of persuasion is, of course, "beyond a reasonable doubt," and that is constitutionally required. So there has to be some applicable standard of persuasion on the forfeiture issue -- that is, the law must demand that the judge, who determines the issues on the forfeiture question, not find the factual propositions supporting forfeiture unless she has some degree of confidence that those propositions are true. I don't know of anybody who seriously contends that this standard should be less than the preponderance of evidence -- i.e., more likely than not. But some observers, including me, believe a higher should be required before concluding that by virtue of his own misconduct a defendant has forfeited a central constitutional right.
Regarding the question of increasing the standard of persuasion to prove unavailability and/or forfeiture:
In the present political climate, few legislatures or courts are going to raise standards, i.e., burdens of proof. However, these issues perhaps can be addressed in part by DEFINING unavailability. That is, by defining the necessary conditions for forfeiture, the slide toward finding forfeiture -- and there likely will be one -- can perhaps be slowed or halted.
As I understand, there are two conditions for forfeiture: Unavailability of a witness and wrongful procurement of the unavailability by Defendant.
What does it mean to be unavailable? Physically unable to come to court? Not coming because of fear of a specific threat? Fear of general threats based on a reasonable belief? Generalized fear without a reasonable belief? Generalized desire to avoid the unpleasantness? With each step, the new standard will look less desirable to a legislature or appellate court.
As to procurement, the obvious threshold is that the procurement should be intentional. Perhaps "intentional" can be defined down by the prosecution community as including patterns of abuse, but this is questionable; and where the intent isn't specifically to keep the victim away from court, the witness' absence might not meet a reasonable definition of "unavailability." At the most-feared extreme, situation, where the fear is induced by the violence of the alleged crime itself, then the nature of the crime would define away the Constitutional right, but no court would find this situation permissible. (Hopefully!)
Don't confuse me with an expert on these issues. It's just that, on reading previous posts, it struck me that a definitional approach might prove more successful in practice than trying to persuade courts or politicians to raise the burden of proof.
J.D., Raleigh, NC
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