Remember the Ladies and the Children Too: Crawford's Impact on Domestic Violence and Child Abuse Cases

Crawford v. Washington, 541 U.S. 36 (2004), which altered the Supreme Court's approach to the Confrontation Clause, has generally impacted trial practice. However, its effect on domestic violence and child abuse cases has been particularly severe. Pursuant to Crawford, if a declarant makes a 'testimonial' statement, in the absence of forfeiture, its admission at trial violates the defendant's right of confrontation unless the declarant is unavailable and has been subjected to prior cross-examination. Young child witnesses may be incompetent to testify or otherwise available. Most complaining witnesses in domestic violence cases do not willingly cooperate with the police. Prior to Crawford, Ohio v. Roberts, 448 U.S. 56 (1980), and its progeny permitted the statements of absent declarants to be introduced under firmly rooted hearsay exceptions, or under ad hoc exceptions when the statements were trustworthy. As a result, in child abuse cases, statements of children were frequently introduced which had been obtained through multidisciplinary forensic interviews. Prosecutors relied heavily on excited utterances, statements to medical personnel, and child hearsay exceptions as well as on medical expert testimony and introduction of prior molestations by defendants. In domestic violence cases, prosecutors developed 'victimless' prosecutions, based primarily on the complainant's excited utterances, medical statements, or other trustworthy hearsay, which were introduced through the testimony of police and medical personnel who photographed the injuries. In some jurisdictions expansive use of prior acts of domestic violence were offered under Rule 404(b) or domestic violence exceptions. The effort to hold batterers accountable for their actions did not create uniformly good results for battered women. Some complainants were virtually forced to testify or face jail when they ignored subpoenas in 'no drop' jurisdictions. In addition, more women were arrested for domestic violence, judges often granted mutual protective orders, women were charged criminally for endangering their children who witnessed their abuse; and even when they were not charged, their children might be removed from the home and placed in foster care. The effect and effectiveness of such policies began to be questioned even before Crawford. This article critiques the testimonial approach, discusses how testimonial statements should be defined focusing particularly on excited utterances and 911 calls, and identifies current trends affecting domestic violence and child abuse litigation. It also explores forfeiture, waiver, and opening the door to testimonial statements. Rather than fighting Crawford, consideration should be given to adopting new hearsay exceptions for declarants who testify, determining whether Rule 404(b) is being adequately used, and expanding expert testimony to permit background about battering and child abuse. More globally, the article proposes restructuring domestic violence prosecutions into three separate tracks in order to devote scarce criminal justice resources to the most dangerous offenders. Finally, best practices are suggested that are most likely to permit child testimony.