May 2005, Volume 91, Issue 3
Prosecuting Batterers After Crawford
by Tom Lininger
91 Va. L. Rev. 747 (2005)
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Professor Tom Lininger examines the impact of Crawford v. Washington on prosecutions of domestic violence. Prior to Crawford, these prosecutions relied heavily on hearsay, in part because accusers often recant or refuse to testify. Crawford has raised significant doubts about the admissibility of such evidence unless the government provides the accused with an opportunity for cross-examination.
Professor Lininger surveyed 64 district attorneys' offices in California, Oregon and Washington to determine the effect of Crawford on domestic violence cases. The counties involved in this survey make up approximately 90 percent of the population in the three states. Nearly two-thirds of the respondents indicated that the Crawford decision significantly impeded prosecutions of domestic violence in their jurisdictions. Moreover, 76 percent of respondents indicated that after Crawford, their offices are more likely to drop domestic violence charges when the accusers recant or refuse to cooperate.
The article suggests legislative reforms that would adapt the states' evidence codes to the new constitutional requirements of Crawford in order to facilitate effective prosecutions of domestic violence. One category of proposals would maximize opportunities for pretrial cross-examination of accusers. Another set of proposals would expand certain statutory hearsay exceptions. Finally, the author suggests miscellaneous reforms that would better protect battered women before trial, would help juries to understand the psychology of recanting accusers, and would diversify the charges brought by prosecutors so that hearsay statements are not indispensable.
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