Friday, January 14, 2005

Victimless Prosecutions

Andrew J. King-Ries, who has extensive experience prosecuting domestic violence cases with the King County (Washington) Prosecutor’s Office, and who is now a visiting assistant professor at University of Montana School of Law, has published Crawford v. Washington: The End of Victimless Prosecution?, 28 Seattle U. L. Rev. 301 (2005). He contends broadly that Crawford should be applied in such a way that it does not interfere with victimless prosecutions of domestic violence. Put another way, he thinks that Crawford should not interfere with admission of 911 calls and statements to responding officers. He disagrees quite sharply with some of the conclusions that Bridget McCormack and I reached in Dial-In Testimony; I won’t attempt a point-by-point rebuttal here.

One basis for his conclusion is the view that in the domestic violence context these statements are not testimonial, “particularly under the narrowest definition of ‘testimonial’ proposed in Crawford.” I suppose it is true that under the narrowest definition most of these statements are not testimonial – but for reasons I have begun to argue on this blog, the narrowest definition is inadequate. Many of these statements – I am avoiding making a universal statement – are made with the anticipation that they will assist in prosecution for crime, and they should be considered testimonial.

Second, he contends that “the historical record supports the proposition that testimonial statements should not include excited utterances, present sense impressions, and statements to medical personnel.” It is difficult to square this discussion with footnote 8 in Crawford, which emphasizes how narrow the exception for spontaneous declarations was at the time of the framing of the 6th amendment, if the exception existed at all. I think it is clear, and Crawford regards it as clear, that at the time of the framing courts did not use an excitement of the speaker theory to allow use at trial of a statement made to an official describing a crime that had been committed on the speaker some time before.

Third, Prof. King-Ries argues that policy considerations support allowing victimless prosecutions. Part of his argument here is that the assailant’s wrongdoing may have intimidated the victim from testifying. That is often so, and it should be dealt with as a matter of forfeiture doctrine, which he acknowledges but barely addresses. To the extent that the argument is simply that domestic violence is a terrible crime and it should be prosecuted effectively, I offer two quick responses: First, it still must be prosecuted constitutionally – we cannot, for example, do away with the jury if we come to the conclusion that jurors are letting DV assailants off too readily – and practices that some courts have gotten used to in recent years have ignored the confrontation right. Second, prosecutors should consider more often offering an early, pretrial opportunity for confrontation.


Paul Vinegrad said...

Rich, welcome back from AALS. I am hoping that you are going to share the Crawford commentary that took place on your blog.

You state that the "narrowest definition [of testimonial] is inadequate."

I assume you mean that the application of a narrow definition would not "adequately" protect a defendant's "right" to cross-examine his accusers.

However, it seems as though Crawford's focus was not on the "adequacy" of cross-exam, but rather on whether any such "right" to cross-exam even existed in 1791.

Shouldn't the dispositive inquiry focus on the state of the law in 1791. Specifically, whether or not the Framers would have intended a "narrow" or "broad" definition of testimonial? What historical evidence exists to suggest that the later, rather than the former, would have been their preference? Given the fact, as Justice Harlan stated, that the Confrontation Clause comes to us on "faded parchment" perhaps this historical evidence does not exist?


Richard D. Friedman said...
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Richard D. Friedman said...

I'm not sure I could accurately or briefly summarize the commentary I heard on Crawford at the AALS, so I won't try. But one point that Jeff Fisher made with respect to Crawford and Blakely, and also I think the military tribunal cases, is an important one. He emphasized the focus of these cases on procedural justice. I think Crawford really helps us think of the confrontation right as a rule of criminal procedure -- that is, a rule of how witnesses give testimony -- rather than merely a rule of what evidence is admitted and what excluded. The right is of course enforced through an exclusionary rule -- that is, evidence of previously-given testimony may not be admitted if the evidence was taken in violation of the confrontation right – but at base it is a fundamental aspect of our criminal procedure. And this explains why we apply it categorically, as we do, say, the right to jury trial or the right to counsel, rather than weighing its contribution to truth-determination in the individual case.

As far as Paul's historical point: I'm not sure that the most crucial question in this realm is what happened in 1791, though I do believe that history is very important. As I said in my main post, I think it is very clear that Crawford was right in fn. 8, saying that to the extent there was a hearsay exception in 1791 for spontaneous declarations -- it is not clear there was -- it was very closely limited to statements made at the time of the event in question or immediately thereafter; I think it would have astonished the Framers to see the receptivity with which some modern courts have welcomed some statements that were clearly accusatory in nature and made with the obvious anticipation that they would be used in the prosecutorial process but that were never subjected to oath or cross-examination.