Prosecuting Domestic Violence after Giles: Why a Categorical Approach to the Forfeiture Doctrine Threatens Female Autonomy

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INTRODUCTION

Prosecutors face a unique dilemma in domestic violence cases after Crawford v. Washington. (1) Post-Crawford, the Confrontation Clause requires any statement deemed "testimonial" to be subject to cross-examination in order to be admitted against the defendant, no matter how reliable or fundamental the evidence is to the prosecutor's case. (2) Application of the Confrontation Clause is especially salient in domestic violence cases because successful prosecution of alleged abusers often hinges on the admission of "testimonial" out-of-court statements and sworn affidavits made by a victim of abuse against her spouse. (3) Introduction of these accusations of domestic violence into evidence is further complicated by the fact that a victim of domestic abuse is often reluctant to cooperate with prosecutors by testifying against her spouse, therefore denying the defendant any meaningful opportunity for cross-examination. (4) As a result, the Confrontation Clause often precludes admittance of these probative victim statements. If prosecutors wish to somehow introduce this evidence at trial, they must seek an alternative means of doing so.

Absent an opportunity for cross-examination, "testimonial" evidence can only be admitted against the defendant in one of two ways: (1) if the statement in question was a dying declaration made by the victim when her death was imminent; or (2) if the defendant has forfeited his right to confrontation by his own wrongdoing. (5) Dying declarations do not play a significant role in domestic violence prosecutions even if the victim dies because the statements sought to be introduced are usually provided to law enforcement when the victim's death is not imminent. (6) The forfeiture-by-wrongdoing doctrine, therefore, has become the primary tool for prosecutors attempting to introduce "testimonial" evidence at trial when a domestic violence victim refuses to testify against her spouse.

Not surprisingly, domestic violence prosecutors have argued for a broad application of the forfeiture doctrine that extends even to cases in which the victim is still alive and has voluntarily decided not to testify against her spouse. (7) Their rationale for doing so is as follows: a broad application of the forfeiture doctrine is necessary, even if the victim voluntarily decides not to testify against her spouse about prior accusations of abuse, because victims of domestic violence are being pressured or coerced by the defendant into not testifying for fear of violent reprisal. (8)

It may be surprising, though, that this prosecutorial tactic could be backed by Supreme Court precedent. In Giles v. California, (9) the Supreme Court clarified that the defendant must have specifically intended to prevent a witness from testifying in order to forfeit his right of confrontation. (10) However, the Court also addressed in dictum the possible application of the forfeiture doctrine in cases of domestic violence where the crime results in the victim's death. (11) Justice Scalia, writing for the majority, noted that evidence of prior domestic abuse could be relevant to the intent inquiry of the forfeiture doctrine because acts of domestic violence are often intended to dissuade a victim from obtaining any outside assistance. (12) But Justice Souter, in his concurrence, went one step further. Souter noted that an abusive relationship is per se sufficient to presume the defendant's specific intent to prevent the victim from testifying because an abusive relationship is meant to isolate the victim from any cooperation with law enforcement. (13)

This Note argues that in domestic violence cases where the victim is still alive, the forfeiture doctrine should be concerned solely with the specific intent of the defendant, as emphasized by the Supreme Court majority in Giles, in lieu of any categorical alternative. Scalia's case-by-case approach is underinclusive; in some cases, the inference of the defendant's specific intent to prevent a victim from testifying, as ascertained by direct or circumstantial evidence, might be so strong as to require a (rebuttable) presumption of forfeiture. …