The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence

Abstract: Victims of domestic violence often do not want to testify in court, and if they do, they often recant and/or testify on behalf of their batterers. To overcome this challenge in prosecuting these types of cases, prosecutors have implemented a practice of victimless prosecutions where the out-of-court statements of victims are used in lieu of their live testimony in court. This practice has been limited, however, by the United States Supreme Court cases Crawford v. Washington and Davis v. Washington, which limit the use of out-of-court testimonial statements in criminal cases when the defendant has not had an opportunity to cross-examine the witness. For this reason, some out-of-court statements are no longer admissible in domestic violence trials. In evaluating how this change should affect the future prosecutions of domestic violence cases, this Article critiques the practice of victimless prosecutions from the perspective of the victim. Specifically, this Article proposes that scholars consider whether victimless prosecutions have been effective in meeting the goals of victim safety, gender equality, and autonomy. Drawing upon feminist scholarship and literature on the legal silencing of subordinate groups, it explores whether victimless prosecutions may discourage women from speaking, which is an important act of empowerment. More importantly, because victimless prosecutions remove victims from the prosecution process, they no longer interact and engage in a dialogue with the criminal justice system. This legal silence may allow the legal system to ignore victims and to pursue its own agenda of successful prosecutions, may limit the criminal justice system's ability to get direct input from victims on whether domestic violence laws and policies are effective, and may make victims complicit in their subordination as women. While this Article acknowledges that victimless prosecutions may be appropriate for some victims, given the potential harm of victim silencing and the fact that Crawford and Davis will limit the use of victimless prosecutions in at least some cases, the criminal justice system should evaluate whether there are victims who can and will testify. Directly addressing some of the reasons that victims do not testify may limit victim silence, which may be a better long-term approach to the domestic violence problem. INTRODUCTION In 2004, the United States Supreme Court issued a landmark decision, Crawford v. Washington,1 which changed the landscape of the Sixth Amendment's Confrontation Clause jurisprudence. Crawford held that out-of-court statements that are "testimonial" cannot be admitted to prove the truth of the matter asserted in a criminal trial unless (1) the declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant.2 After Crawford, it was not clear how this decision might impact domestic violence prosecutions. Specifically, Crawford foreshadowed the possible end of what some call victimless prosecutions,3 in which victims' statements from 911 calls and police statements are used in lieu of the victims' live testimony at trial. After much anticipation, the United States Supreme Court finally spoke on this issue in Davis v. Washington? Unfortunately, the language that the Court adopted in Davis did not provide the definitive answer that prosecutors, defense counsel, and lower courts anticipated.5 The Court held that out-of-court statements are nontestimonial when they are "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."6 These statements are testimonial when "the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."7 After Davis, there is no question that in some circumstances, victimless prosecutions will no longer be a viable option for prosecutors of domestic violence cases. …