Adversarial Justice's Casualties: Defending Victim-Witness Protection

INTRODUCTIONThe United States is among a minority of nations in the world with an adversarial criminal justice system.1 The model gives partisan-lawyers the dominant role in selecting and challenging evidence through confrontation of witnesses, cross-examination, and pretrial discovery to elicit information from opponents.2 Over the last decades, the U.S. Supreme Court has enlarged confrontation, cross-examination, and self-representation rights. 3 State courts may go even further, for example, by requiring the victim to physically face the defendant "eyeball-to-eyeball" or by authorizing digging through private victim and witness information.4 Commentators have celebrated advances in the adversarial revolution as fortifying defendant rights at the expense of prosecutorial power.5 Yet the adversarial revolution also exacts severe costs on a crucial third player-victim-witnesses, especially in cases of traumatic crimes of sexual assault and violent crime generally.6The courts are in disarray about what-if anything-should be done to protect at-risk victims.7 The evidence is mounting that undergoing rituals of adversarial adjudication retraumatizes victims of violent and sexual assault crimes.8 Sometimes the legal dilemmas make it into the case reporters.9 Sometimes they do not.10 The dramas behind the legal questions are brutal, even after the crime.D.G., for example, was a victim whose case did not make it into the reporters.11 The man who raped her repeatedly chose to self-represent so he could personally question her on the stand.12 Shortly before she was going to be trapped before him again for interrogation-legitimized as crossexamination by a self-representing defendant-D.G. tried to commit suicide by jumping off the courthouse building.13 The intimidation by criminal procedure worked, and the prosecutors dropped her case.14 Prior to D.G.'s attempted suicide, legislators introduced and debated a bill on multiple occasions that would have protected victims like her from such retraumatiza- tion.15 The bill faltered because of concerns over whether it would conflict with the rights of defendants to self-represent and confront witnesses.16D.G.'s tragic story-and others like it-illustrate how the criminal justice system fails to protect survivors of attempted murder, rape, and other violent crimes from brutal rituals of adversarial adjudication, such as interrogation by the perpetrator or exposure to retaliation.17 Courts and state legislatures are exploring protective measures to lessen this harm.18 Efforts to reduce the risk of further injury are chilled, however, by doubts over potential conflict with murky criminal procedure protections.19 Framed in reaction to controversial prosecutions for crimes against the sovereign, such as treason and seditious libel, constitutional protections are fixated on the joust between defendant and state, and are cryptic about victim protections.20 Judges with the courage to fashion procedures to reduce the harm to victims and witnesses risk reversal by appellate courts.21 When in doubt, the incentives are to err on the side of the defendant.22 It is easier to legitimize the harms as part of ordinary criminal process-how we have always done things-and avert our gaze.23Yet the confrontation, discovery, and self-representation doctrines that suffocate protection today are not how we have always done things. For example, the landmark Confrontation Clause case allowing defendants to suppress statements by victims and witnesses who are unavailable for crossexamination, Crawford v. Washington, was decided merely one decade ago by the Supreme Court.24 Other major hazards in the post-Crawford minefield are even more recent, such as the Court's 2008 decision Giles v. California, which opened the door for defendants who kill or intimidate witnesses to argue that the victim's evidence is inadmissible because the witness cannot be cross-examined.25 Another powerful source of intimidation tactics was created inadvertently in the 1975 Supreme Court case Faretta v. …