A Case of Censorship?

I pride myself on being a mild mannered type, and friends (and my wife) say I have an overly thick skin, being the reverse of paranoid because I fail to perceve insults when they really are intended. I have had many articles rejected by many, many law journals, and have never complained. But now I have a complaint, and I am reporting on it here because I think it reflects a troubling aspect of the reaction to Crawford in some quarters.

Over the summer, the National Council of Juvenile and Family Court Judges published an article in its journal, Juvenile and Family Justice Today, by two Florida judges taking the view, essentially, that Crawford could be ignored in domestic violence cases by treating excited utterances as non-testimonial. Jeff Fisher (who argued and won Crawford), Bridget McCormack (who co-authored with me Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002), an article examining excited utterances from the viewpoint of a testimonial approach to confrontation), and I wrote a response. We argued that many statements that have been characterized as excited utterances for purposes of hearsay law should be regarded as testimonial for Confrontation Clause purposes. I had thought the Council would welcome our essay, coming from sources that I assumed it would regard as responsible and that had been on the prevailing side in Crawford. But the Council rejected our response. I asked for an explanation, and was told that the tone of the response was unacceptable and would be insulting to the judges, who were valued members of the organization. I found this mystifying, because I did not think there was anything in the tone of the response that was insulting. And so I offered to make such changes as the Council thought necessary to avoid this issue, and I asked for formal reconsideration of the decision by the board of the Council. The board has considered the matter and has declined to publish the response. (I have been told that they will appoint a committee to consider various publication issues, including this one; six months after original submission, I regard this as a final rejection.)

Accordingly, I am posting our paper here. The Council's decision is not censorship in the technical sense, of course -- the Council is a private organization, it can do what it wants, and we are free to find other outlets for our views (such as this blog). But in a real sense I do regard this as an instance of censorship. It is hard for me to perceive this incident as anything but a decision by the Council to limit the extent to which its members will consider the views represented by our response. This is especially unfortunate given that many courts, in states around the nation and including at least one in Florida, Lopez v. State, 888 So.2d 693 (1st Dist. Ct. of Appeal 2004), have adopted our point of view or something close to it. Many courts have also taken positions closer to the one that the Council was willing to publish (though rarely so extreme), but it seems self-evident to me that our view is one to which judges should be exposed -- especially given that the U.S. Supreme Court may eventually adopt it, which would result in the reversal of many convictions achieved under a lax view of Crawford.

More broadly, I believe this incident reflects a "draw the wagons" approach to Crawford taken by some of those involved in the prosecution and adjudication of domestic violence cases. They have gotten used to trying cases in which the complainant's accusation is introduced even though she does not testify subject to cross-examination, and Crawford threatens the practice. Rather than considering whether Crawford states an important issue to which they should pay attention, or whether Crawford gives prosecutors incentive to present better evidence than previously, they have treated Crawford as if it changed nothing, allowing them to continue to operate as they did before. This may prove in the end to be a highly counter-productive attitude.