Controlling the Damage Done by Crawford v. Washington: Three Constructive Proposals

Witness noncooperation is the single greatest reason why the prosecution loses meritorious cases. Lamentably, the Supreme Court has been making matters worse. In Crawford v. Washington and its progeny, the justices have ruled that the Sixth Amendment confrontation clause bars admission of 'testimonial hearsay' - an out of court statement accusing the defendant - unless the declarant testifies, or is unavailable and the defense had a prior opportunity to cross-examine the declarant concerning the statement. The consequence has been a loss for truth across the board, but the loss is especially pronounced in domestic violence cases. This symposium challenges the contributing authors to propose some concrete, feasible reform of the criminal justice system. Political and economic constraints limit many prospects for reforming criminal justice. Changes in the evidence rules that might advance the search for truth in criminal cases are, quite possibly, an exception. Such changes require no financial appropriations. They appeal to the same alliance of law-enforcement agencies and women's groups that has achieved such political successes as the rape shield laws, anti-stalking statutes, and civil protection orders. In broad terms I call for a nationwide reexamination of the evidence rules in light of Crawford's impact. More particularly, I call on the Advisory Committee, the Supreme Court, and Congress to amend the Federal Rules of Evidence. Although the federal role in prosecuting domestic violence cases is modest compared to that of the states and localities, the Federal Rules have been adopted by a majority of the states. We might, with some confidence, expect amendments to the Federal Rules to become models for reform in the states - especially if those reforms proved salutary in practice. The literature already includes some important proposals for reform. Building on some of these proposals, and without opposition to other changes the Advisory Committee, the Court, or the Congress might find more attractive, I propose three specific amendments to the Federal Rules. As set forth in more detail below, the proposed changes are as follows: Amend FRE 801(d)(1)(A) to permit the substantive use of unsworn prior inconsistent statements in criminal cases, as is done now under the California Evidence Code section 1235. The practical effect of the change would be to permit the prosecution to get to the jury when the sole witness recants an accusation at trial. Adopt a new FRE 804(b)(5), which would permit the substantive use of a declarant’s statement taken by the police officer in the presence of the accused, as long as the accused had the chance to explain or deny that statement. The objective of the amendment is to restore the admissibility of statements of the type routinely admitted at the founding. As will be explained in more detail below, the proposal analogizes a police officer called to the scene of an alleged offense to the justice of the peace, who took depositions from witnesses at pretrial examinations under the so-called Marian committal statutes. Revise FRE 804(b)6, which would make it easier for a court to find that the accused had forfeited his right to confront an witness by creating a permissive presumption that an otherwise unexplained unavailability of a witness previously injured or threatened by the accused is probably the result of improper pressure brought by the accused. I propose these amendments to control the harm Crawford v. Washington and its progeny have done to the prosecution of violent crime, especially domestic violence. Part II of the article summarizes the Supreme Court's new confrontation clause doctrine. Part III reports the damage the new law has done, and Part IV explains why alternative damage-control strategies are unpromising. Part V argues that the proposed changes to the evidence rules would go far toward undoing Crawford's mischief, and that each should survive constitutional challenge.