Sex, threats, and absent victims: The lessons of regina v. bedingfield for modern confrontation and domestic violence cases

Fordham Law Review

Volumn 79, Issue 1, 2010, Pages 115-164

  Orenstein, Aviva ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 78649608176     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (438)

1. Murder and Attempted Suicide at Ipswich, IPSWICH J., July 12, 1879, at 7, available at Gale, Doc. No. Y3202578458. Rudd's phrase has been reported with slight variations.
2. See The Ipswich Tragedy, IPSWICH J., Sept. 20, 1879, at 7, available at Gale, Doc. No. Y3202579060 ("Dear Aunt, look what Bedingfield has done to me" from Sarah Rodwell, and another version from a passing-by ten-year-old, John Arthur Shimmon, "Oh, dear, Aunt, look here what Bedingfield has done to me."). According to the case reporter, it was,
3. "See what Harry has done!" R v. Bedingfield, (1879) 14 Cox Crim. Cas. 341 (Crown Ct.) at 345 n.(b) (Eng.).
4. But cf. James B. Thayer, Bedingfield's Case.-Declarations as a Part of the Res Gesta (pt. I), 14 AM. L. REV. 817, 826 (1880) (following concurrent news reports of the statement as being "O aunt, see what has been done to me").
5. Murder and Attempted Suicide at Ipswich, supra note 1.
6. Id.
7. The Ipswich Tragedy, supra note 1.
8. Bedingfield, 14 Cox. Crim. Cas. at 344.
9. The Ipswich Murder.- Sentence of Death, IPSWICH J., Nov. 15, 1879, at 7, available at Gale, Doc. No. Y3203579514. The determination of guilt was based primarily on forensic evidence.
10. See infra notes 84-88 and accompanying text.
11. Bedingfield, 14 Cox Crim. Cas. at 344-45. However, the fact that Rudd made a statement shortly after the incident was briefly mentioned in the opinion as refuting the defendant's suicide theory.
12. Id.
13. Res gestae literally means "things done." Infra note 28. It is a common-law concept that excepts from the hearsay definition acts done and statements made that accompany an event.
14. See Jeffery L. Fisher, What Happened-And What is Happening-to the Confrontation Clause?, 15 J.L. & POL'Y 587, 601 (2007) (defining res gestae as "those circumstances which are the automatic and undisguised incidents of a particular litigated act, and which are admissible when illustrative of such act" (citation omitted)).
15. Bedingfield, 14 Cox. Crim. Cas. at 342-43.
16. See Thayer, supra note 1;
17. James B. Thayer, Bedingfield's Case.-Declarations as a Part of the Res Gesta (pts. II & III), 15 AM. L. REV. 1, 71 (1881). For a discussion of Thayer's contribution to the modern evidence law and scholarship,
18. see Eleanor Swift, One Hundred Years of Evidence Law Reform: Thayer's Triumph, 88 CALIF. L. REV. 2437 (2000).
19. Regina v. Bedingfield is reported in Volume XIV of the Reports of Cases in Criminal Law, which covers cases from 1877 to 1882. The reporter, W.F. Finlason, Esq., Barrister-atLaw, provides a mixture of factual summary and paragraphs that purport to recount statements made by Lord Chief Justice Alexander Cockburn. In addition, the reporter provides footnotes explicating legal questions, expanding on the facts, and discussing the legal strategies of the parties. Because the reporters, not the judges themselves, transcribed the oral opinions, such records may not be as accurate in conveying the judge's remarks as are modern reporters. By this, I do not mean to imply that modern courts always get the facts right, merely that they document their factual assumptions, reasoning, and an agreed version of events and arguments form the template of modern courts' legal determinations.
20. Bedingfield, 14 Cox Crim. Cas. at 341.
21. See id.
22. Id.
23. Id.
24. See generally id.
25. The Ipswich Murder.-Sentence of Death, supra note 6.
26. Bedingfield, 14 Cox. Crim. Cas. at 341.
27. Id.
28. Id. at 342.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
34. Id.
35. Murder and Attempted Suicide at Ipswich, supra note 1.
36. BLACK'S LAW DICTIONARY 1423 (9th ed. 2009) (quoting State v. Fouquette, 221 P.2d 404, 416-17 (Nev. 1950)). Res gestae literally means "things done."
37. Id.
38. see Fisher, supra note 8.
39. Bedingfield, 14 Cox Crim. at 342.
40. Id. at 342-43.
41. Id. at 343 (holding that the statement was not admissible because "it did not appear that the woman was aware that she was dying").
42. Id. at 344. Justice Cockburn is quoted as saying of Rudd: "[S]he had no time to consider and reflect that she was dying; there is no evidence to show that she knew it, and I cannot presume it."
43. Id.
44. Newspaper accounts occurred primarily in The Ipswich Journal, which dedicated lots of coverage to this hometown murder. Ipswich, one of England's oldest towns, served as the main center between York and London for North Sea trade, and was the setting for Charles Dickens's The Pickwick Papers. CHARLES DICKENS, THE POSTHUMOUS PAPERS OF THE PICKWICK CLUB ch. xxii (The Heritage Press 1938) (1837). The London papers carried shorter squibs about the crime, but were more engaged in the post-conviction legal wrangling and pleas for clemency.
45. Murder and Attempted Suicide at Ipswich, supra note 1.
46. The Execution of Henry Bedingfield, IPSWICH J., Dec. 6, 1879, at 10, available at Gale, Doc. No. Y3202579710.
47. See The Ipswich Tragedy, supra note 1.
48. Id.
49. Id.
50. Id.
51. Id. It is unclear from the newspaper report whether this is the gloss of the journalist or somehow gleaned from the statements of the prosecuting attorney. Henry Bedingfield, IPSWICH J., Dec. 9, 1879, at 2, available at Gale, Doc. No. Y3202579719 ("He had promised his victim's husband, in some way or other, that he would look after her and assist her when she was left alone.").
52. The Ipswich Tragedy, supra note 1 (voluntary statement made by Bedingfield to police while he was in the hospital).
53. The Execution of Henry Bedingfield, supra note 35.
54. Id.
55. The Ipswich Tragedy, supra note 1 ("[S]he had money from me every week, and what work I done for her, twenty pounds would not pay me." (quoting Bedingfield)).
56. Id. ("Me and my wife frequently had supper at hers, and she frequently had tea at ours." (as quoted by the police officer who took a statement from Bedingfield at the hospital)).
57. Id. The prisoner was not entitled to testify at the inquest or the trial, but his voluntary statements to the police were reported in the papers.
58. Id. There is no record of any children from their affair, so it is probable that Rudd miscarried.
59. Id.
60. The Ipswich Murder.-Sentence of Death, supra note 6. Bedingfield told a policeman that he first asked his wife for one pound, but she refused.
61. Id. Bedingfield added that "if it had not been for my wife perhaps that [Rudd's supposed attack on Bedingfield] would never have occurred."
62. Id.
63. The Ipswich Tragedy, supra note 1.
64. Murder and Attempted Suicide at Ipswich, supra note 1.
65. R v. Bedingfield, (1879) 14 Cox Crim. Cas. 341 (Crown Ct.) at 341 (Eng.).
66. The Ipswich Tragedy, supra note 1 (noting that even Bedingfield himself alludes to this when he commented that "if she had given me the pony and cart it would not have paid me for what I have done for her").
67. Bedingfield is quoted by the policeman as reporting the following conversation between himself and Rudd: Bedingfield: "You know a young woman had a child by me." Rudd: "I heard so." Bedingfield is then reported to have said to the policeman to whom he gave the statement that "Mrs. Rudd told me if she knew I spoke to [the young woman] again, she would run a knife into me. She has slapped my face-that the women know [possibly referring to Rudd's assistants]-and if she had given me the pony and cart it would not have paid me for what I have done for her."
68. Id.
69. The direction of the cut on Bedingfield could only be explained if they were both facing the same direction-something the lap sitting would have accounted for.
70. Id.
71. Id.
72. Id.
73. The Execution of Henry Bedingfield, supra note 35.
74. Id.
75. Id.
76. Murder and Attempted Suicide at Ipswich, supra note 1.
77. The Execution of Henry Bedingfield, supra note 35.
78. The Ipswich Murder, DAILY NEWS (London), Dec. 1, 1879, at 3, available at Gale, Doc. No. Y3203348238.
79. Samuel Garratt, Letter to the Editor, The Bedingfield Case, DAILY NEWS (London), Nov. 29, 1879, at 2, available at Gale, Doc. No. Y3203348198;
80. see The Condemned Man Henry Bedingfield, IPSWICH J., Dec. 2, 1879, at 4, available at Gale, Doc. No. Y3202579678.
81. To "death qualify" in modern parlance means to agree in principle with the death penalty. In capital cases, prosecutors are allowed to excuse for cause jurors who are not death-qualified. See generally Sam Kamin & Jeffrey J. Pokorak, Death Qualification and the True Bifurcation: Building on the Massachusetts Governor's Council's Work, 80 IND. L.J. 131 (2005).
82. Garratt, supra note 65.
83. Id. The Vicar stated that "Bedingfield has not been proved guilty, nor do I think he is guilty."
84. Id.
85. Id.
86. Id.
87. Id.
88. Id.
89. Id.
90. Id.
91. Id.
92. Id.
93. Murder and Attempted Suicide at Ipswich, supra note 1.
94. Id.
95. The Ipswich Tragedy, supra note 1.
96. Id. I am guessing that the excised word that the paper would not print is "damn." This testimony is picked up by the court in the opinion, and Rodwell was cross-examined by the defense attorney at trial regarding her testimony at the Coroner's inquest.
97. Another possible indication of Rodwell's lack of veracity is that her own son, James Rodwell, age sixteen, contradicted her version of that morning's events, challenging his mother's assertion that Bedingfield had been the subject of discussion at the breakfast table.
98. Murder and Attempted Suicide at Ipswich, supra note 1.
99. DAILY NEWS (London), Nov. 15, 1879, at 5, available at Gale, Doc. No. Y3203347839 (untitled article beginning "The murder of Eliza Rudd by Henry Bedingfield") (attributing the quote to Stephen's Evidence).
100. The Ipswich Murder.-Sentence of Death, supra note 6 (discussing the "standing quarrel" concerning payment for Bedingfield's services).
101. R v. Bedingfield, (1879) 14 Cox Crim. Cas. 341 (Crown Ct.) at 344 (Eng.). To credit Bedingfield's claim of innocence, one would have to believe that Rudd pulled out the razor while Bedingfield was sitting on her lap. Rudd's son testified before the magistrates that Rudd had bad knees and could not have supported a fully grown man on her lap.
102. The Ipswich Tragedy, supra note 1.
103. Murder and Attempted Suicide at Ipswich, supra note 1. Dr. Webster Adams testified that he found Rudd "with a deep incised wound in the throat, extending obliquely from the left up towards the right ear, severing all the large vessels on the right side, also the trachea."
104. Id. He opined that "the wound was inflicted from behind by the right hand, as the wound under the left ear is superficial, but as it progresses towards the right ear the wound becomes very deep."
105. Id. A few months later, Dr. Adams gave similar testimony in front of the magistrates, but he said that he "could not say whether much violence was used in inflicting [the] wound."
106. The Ipswich Tragedy, supra note 1. Branford Edwards, another surgeon who also attended the post-mortem and who testified at the Coroner's Inquest, similarly testified that it "probably was not a suicidal wound."
107. Id. In addition, Rudd did not seem the type to take her own life. Dr. Adams knew Rudd personally (she was his laundress) and noted that "[t]he woman was always very cheerful, and I never thought her of a suicidal tendency."
108. Id.
109. Id.
110. Id.
111. Id.
112. Murder and Attempted Suicide at Ipswich, supra note 1.
113. The Murder at Ipswich, IPSWICH J., July 19, 1879, at 3, available at Gale, Doc. No. Y3202578524 (statement of Dr. Webster Adams);
114. accord Garratt, supra note 65 (quoting the Doctor's statement).
115. The Murder at Ipswich, supra note 90 (statement of Dr. Branford Edwards). This statement was also quoted by the Vicar in his letter to the editor.
116. Garratt, supra note 65.
117. The Vicar's quotations of the surgeons' statements are slightly different from those reported in The Ipswich Journal article, but they contain the same information.
118. Id.
119. Murder and Attempted Suicide at Ipswich, supra note 1.
120. David Wilde, Hearsay in Criminal Cases: Res Gestae and Dying Declarations: Rv Bedingfield Revisited, 4 INT'L J. EVIDENCE & PROOF 107, 115 n.33 (2000).
121. Murder and Attempted Suicide at Ipswich, supra note 1.
122. It is possible that Rudd meant something other than accusing Bedingfield of slitting her throat. If one were to believe Bedingfield's defense that Rudd attacked him and then she committed suicide, the statement, "Oh, aunt, see what Bedingfield has done to me" could mean "Oh, aunt, see what Bedingfield has driven me to do." See David M. Tanovich, Starr Gazing: Looking into the Future of Hearsay in Canada, 28 QUEEN'S L.J. 371, 405 (2003) (presenting this alternate hypothesis).
123. But see Wilde, supra note 93, 111-12 (arguing, based on an event involving Vincent van Gogh and Paul Gauguin, that Rudd could have been the aggressor and yet still blamed Bedingfield).
124. 2 MCCORMICK ON EVIDENCE § 268 (John William Strong ed., 4th ed. 1992).
125. 1 JOHN PITT TAYLOR, A TREATISE ON THE LAW OF EVIDENCE: AS ADMINISTERED IN ENGLAND AND IRELAND §§ 525, 526 (London, William Maxwell & Son, 7th ed. 1878)
126. (quoted in Coffin v. Bradbury, 35 P. 715, 721 (Idaho 1894));
127. see also Washington v. State, 118 So. 2d 650, 653 (Fla. Dist. Ct. App. 1960) ('"Res Gestae,' is a Latin term translated literally as 'things done'; and it embraces the circumstances, facts, and declarations which are incident to the main fact or transaction and which are necessary to demonstrate its character. It also includes words, declarations, and acts so closely connected with a main fact in issue as to constitute a part of the transaction."
128. (citing H.C. UNDERHILL, A TREATISE ON THE LAW OF CRIMINAL EVIDENCE § 266, at 644 (5th ed. 1956)));
129. Coffin, 35 P. at 721 (explaining that res gestae statements are "declarations made, under circumstances to warrant the court in presuming that they grew out of the litigated issue, and illustrate the true character of the transaction, and were dependent upon it, were not designedly made, or devised for a self-serving purpose, are evidentiary facts, and are not within the general rule applicable to hearsay testimony").
130. Thayer (pt. II), supra note 10, at 9;
131. see Aviva Orenstein, "MY GOD!": A Feminist Critique of the Excited Utterance Exception to the Hearsay Rule, 85 CALIF. L. REV. 159. 167 n.16 (1997).
132. 31 YALE L.J. 229 (1922).
133. Id. at 229.
134. United States v. Matot, 146 F.2d 197, 198 (2d Cir. 1944).
135. Ironically, Justice Scalia, author and promoter of the new approach to confrontation leveled the same criticism at the previous confrontation doctrine he overruled.
136. See Crawford v. Washington, 541 U.S. 36, 60 (2004)
137. (criticizing Ohio v. Roberts, 448 U.S. 56 (1980), for being both too broad and too narrow).
138. 6 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 1767, at 182 (3d ed. 1940).
139. Id.
140. Gray v. State, 456 A.2d 1290, 1297 (Md. Ct. Spec. App. 1983) ("One almost longs nostalgically for the discredited label of 'res gestae,' notwithstanding its utter repudiation in polite academic circles. Its sin was its elusive ambiguity. Ironically, that ambiguity may also have been its occasional virtue." (footnote omitted)).
141. Id. at 1298.
142. Orenstein, supra note 99, at 177;
143. see Tom Lininger, Reconceptualizing Confrontation After Davis, 85 TEX. L. REV. 271, 282 (2006) ("The exception for excited utterances was the single most important evidentiary rule for prosecutors in domestic violence cases during the era preceding Crawford.").
144. R v. Bedingfield, (1879) 14 Cox Crim. Cas. 341 (Crown Ct.) at 342 (Eng.).
145. Id.
146. Chief Justice Cockburn's last observation, regarding the fact that the statement was not made in the presence of the accused, reflected, at least in part, the party witness rule. Just as the accused enjoyed a privilege against self-incrimination, there was in England at the time of Bedingfield a ban on the accused's testifying on his own behalf. The party was simply not allowed to testify at all. Since Bedingfield could not speak, it seemed unfair to admit Rudd's last declaration. In fact, Cockburn noted in his pamphlet that, "Possibly, when the inability of an accused person to give evidence in his own favour shall have been removed, a restriction on the admissibility of statements made against him in his absence, and which unanswered may operate to his prejudice ... may be advantageously removed in the interest of justice." A. E. COCKBURN, A LETTER TO JOHN PITT TAYLOR, ESQ. 16 (Vacher & Sons) (1879). This point was noted by an American judge in rejecting Bedingfield.
147. State v. Thompson, 34 S.W. 31, 38 (Mo. 1896) ("As the law now permits the accused to testify, the reason for the rigid exclusion of evidence like this has been greatly shaken. Even Lord Chief Justice Cockburn, whose ruling in Bedingfield's Case was at variance with many English and American precedents on this question, and has been rejected both by our courts and law writers, conceded that if the prisoner could testify the rule should be relaxed."). This observation by Chief Justice Cockburn raises an interesting historical and policy question seemingly ignored by the Court in Crawford and its progeny. How much of the insistence that witnesses be cross examined in court stemmed from the concern that the accused could not testify at all? Once the party-witness rule was changed, it arguably made sense to at least revisit the policy calculations where the witness had something to say and was truly unavailable.
148. J. Pitt-Taylor, Letter to the Editor, The Law of Evidence as Expounded by the Lord Chief Justice, TIMES (London), Nov. 17, 1879 (available on Hein Online). Bedingfield presents a window into the culture of evidence scholarship. The reactions to Bedingfield are replete with academic back-biting that makes modern scholarly discourse seem tame if not milquetoasty by comparison. Thayer's three-part article on the Bedingfield case will quickly disabuse modern legal scholars of any misplaced nostalgia for a kinder, gentler age of scholarship. The Chief Judge of England responded with acrimony when his opinion in Bedingfield was criticized in The Times of London. The Chief Judge issued pamphlets and newspaper editorials mocking Taylor and Simon Greenleaf, who were both evidence treatise writers, after Taylor publicly criticized the opinion. Chief Justice Cockburn expressed outrage at the forum and charged anyone who disagreed with him with naivete and poor research skills. Taylor responded in kind, arguing that the Chief Justice's attack was "neither consistent with your dignity, your generosity, nor your justice."
149. JOHN PITT TAYLOR, A LETTER TO THE LORD CHIEF JUSTICE OF ENGLAND, G.C.B: IN REPLY TO HIS LORDSHIP'S LETTER ON THE BEDINGFIELD CASE 3 (William Maxwell & Son) (1880). In addition to Taylor, the Times of London received Letters signed by: "Lex," "A Barrister Present at the Trial," "Long Robe," and others who just signed with their initials. Given Chief Justice Cockburn's fury at being challenged, it is not entirely surprising that many of his critics preferred to remain anonymous. For an entertaining discussion of this debate and Chief Justice Cockburn's petulance,
150. see Roderick Munday, The Judge Who Answered His Critics, 46 CAMBRIDGE L.J. 303 (1987). In writing about the Bedingfield case, Thayer was snide about many fellow legal scholars. For instance, of the treatise writer, Greenleaf, Thayer observes: "Greenleaf's general conceptions were not original,-they were English."
151. Thayer (pt. III), supra note 10, at 74. Thayer proceeded to assess the work of this derivative scholar's treatment of res gestae: "Greenleaf has thus helped to give a vague reach and diffusion to the doctrine."
152. Id. at 76. Thayer approved of the term "evidentiary facts," which he denoted as "[o]ne of Bentham's words, which unlike many of those ugly creations, has passed into good legal usage."
153. Id. at 81 n.l. At another juncture, tracing the history of the phrase res gestae, Thayer noted that "[w]e find it first in the mouth of Garrow and Lord Kenyon,-two famously ignorant men."
154. Thayer (pt. II), supra note 10, at 10 n.l. Aside from the vituperative tone the scholarly discussions of the case presented a starkly clinical, hyperintellectual approach to an underlying tragedy, a hallmark of legal scholarship today as well.
155. PITT TAYLOR, supra note 112, at 16-17.
156. The rest of the pamphlet is easy to read and jaunty, if condescending in tone. Tellingly, even a stylist like Cockburn could not render the res gestae doctrine comprehensible.
157. COCKBURN, supra note 111, at 19.
158. PITT TAYLOR, supra note 112, at 20-21.
159. 3 JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW: INCLUDING THE STATUTES AND JUDICIAL DECISIONS OF ALL JURISDICTIONS OF THE UNITED STATES § 1756, at 2266 n.6 (1904);
160. see State v. Murphy, 17 A. 998, 998-99 (R.I. 1889) (referring to Bedingfield as "much criticised" and "tak[ing] extreme ground").
161. But see People v. Ah Lee, 60 Cal. 85, 87, 92 (1882) (holding that victim's statement that "hallooed murder" after victim was stabbed was not part of the res gestae and commending Bedingfield: "[W]e think that the line which separates statements which are admissible in evidence as a part of the res gestae from those which are admissible only as dying declarations, is well defined by Mr. Chief Justice Cockburn.").
162. Murray v. Boston & Me. R.R., 54 A. 289, 291 (N.H. 1903). But, as one might expect, there were variations in the jurisprudence and some American courts did follow the strictures of Bedingfield, particularly on the west coast.
163. See, e.g., Coryell v. Clifford F. Reid, Inc., 4 P.2d 295 (Cal. Dist. Ct. App. 1931) (following Ah Lee, 60 Cal. 85). After reviewing the cases, my view is that the majority rule favored a loosened timing requirement.
164. But see generally Fisher, supra note 8 (focusing on the cases that did require precise contemporaneousness).
165. 75 U.S. (8 Wall.) 397 (1869).
166. Mosley is a civil, not a criminal, case. Thayer explained that although in criminal cases "evidence against an accused person must be given in his presence" that rule "is nowhere, in either country, held to cut down the admission of declarations which are a part of the res gesta." Thayer, supra note 1, at 828. "[NJo distinction between civil cases and criminal cases as to the admission of declarations as a part of the res gesta has as yet been made out, and it is very late in the day to adventure upon such an enterprise."
167. Id. at 829.
168. Mosley, 75 U.S. at 407.
169. Id. at 408.
170. Id.
171. Id. In 1880, the Supreme Court of South Carolina similarly explained the rule with an explicit caveat that the timing need not be exactly contemporaneous: To make declarations a part of the res gestae, they must be contemporaneous with the main fact, not, however, precisely concurrent in point of time. If they spring out of the transaction, elucidate it, and are made at a time so near to it as reasonably to preclude the idea of deliberate design, they are then to be regarded as contemporaneous.
172. State v. Belcher, 13 S.C. 459, 463-64 (1880).
173. See Westcott v. Waterloo, C.F. & N. Ry. Co., 155 N.W. 255, 258 (Iowa 1915) ("The doctrine has not been as closely applied in this country, and it is not required that the declaration be contemporaneous with the act, but all courts hold that it must be spontaneous, and not a narrative of past events. It must appear that the interval of time did not afford an opportunity to premeditate and fabricate.");
174. see, e.g., Herren v. People, 62 P. 833, 834 (Colo. 1900) (rejecting res gestae where the "purported declarations were neither spontaneous nor voluntary. They were in response to questions asked, and were clearly narrative of a past event, in no sense explanatory of the principal fact, or connected with it.").
175. Thayer (pt. III), supra note 10, at 84.
176. Id. at 89.
177. See Coffin v. Bradbury, 35 P. 715, 721 (Idaho 1894) ("[T]he decided weight is that time is not necessarily a controlling element or principle in the matter of res gestae.").
178. Thayer (pt. III), supra note 10, at 83.
179. WIGMORE, supra note 104, § 1756, at 164.
180. See Edmund M. Morgan, Res Gestae, 12 WASH. L. REV. 91, 96-98 (1937);
181. Morgan, supra note 100, at 236-37. For an erudite discussion of the scholarly history of res gestae in America,
182. see Deparvine v. State, 995 So. 2d 351, 362-63 (Fla. 2008).
183. See, e.g., Cassidy v. State, 536 A.2d 666, 670 n.4 (Md. Ct. Spec. App. 1988) ('"In this case, we will not rely upon the undifferentiated phrase res gestae, because that umbrella term covers a wide variety of analytically distinct rationales'."
184. (quoting Moore v. State, 338 A.2d 344, 346 n.l (Md. Ct. Spec. App. 1975))).
185. See id. at 671-72 (listing seven different modern manifestations of res gestae including the nonhearsay uses of verbal acts, verbal parts of acts, and implied assertions);
186. see, e.g., Deparvine, 995 So. 2d at 362 n.7 (including in res gestae '"part of a relevant transaction the offered evidence of which has no hearsay aspect'"
187. (quoting Edmund M. Morgan, The Law of Evidence, 1941-1945, 59 HARV. L. REV. 481, 568 (1946))).
188. Municipality of Bethel Park v. Workmen's Comp. Appeal Bd., 636 A.2d 1254, 1257 (Pa. Commw. Ct. 1994) ("[R]es gestae is no longer itself a specific hearsay exception. Rather, it is a generic term which encompasses four distinct exceptions: (1) declarations as to present bodily conditions; (2) declarations as to present mental states or emotions; (3) excited utterances; and (4) present sense impressions.").
189. FED. R. EVID. 803(2);
190. see also 2 MCCORMICK, supra note 97, § 268.
191. FED. R. EVID. 803(1).
192. Federal Rule of Evidence 803 sets forth exceptions to the hearsay rule, including the excited utterance exceptions, for which availability of the declarant is immaterial. Rule 803 exceptions have been considered either sufficiently trustworthy to be admissible without requiring imposition of the time and expense associated with production of a declarant, or of a type where cross-examination of the declarant would purportedly provide no additional information to the fact finder. The constitutionality of admitting at least some excited utterances and present sense impressions where the declarant is not called to testify has been called into question by Crawford v. Washington, 541 U.S. 36 (2004).
193. 541 U.S. 36 (2004).
194. The Confrontation Clause of the Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST, amend. VI.
195. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009) ("A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination."). The practical effect of Crawford was to limit the admissibility of so-called "testimonial" statements. The Court has subsequently made clear that nontestimonial statements present only hearsay, and not confrontation, concerns.
196. See infra note 316 and accompanying text.
197. Crawford, 541 U.S. at 54. Justice Scalia explained that the Confrontation Clause is "most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding."
198. Id. Scalia's originalist approach has been attacked for its lack of wisdom and its method. In a series of articles, Professor Thomas Davies has convincingly argued that Justice Scalia's historical account is flawed and that Crawford's approach to unsworn hearsay is inconsistent with the basic premises that shaped the Framers' understanding of the confrontation right.
199. See Thomas Y. Davies, Not "the Framers ' Design ": How the Framing-Era Ban against Hearsay Evidence Refutes the Crawford-Davis "Testimonial" Formulation of the Scope of the Original Confrontation Clause, 15 J.L. & POL'Y 349, 355 (2007)
200. [hereinafter Davies, Not the Framers' Design] (arguing that a testimonial versus nontestimonial distinction does not accurately reflect the Founders' approach to confrontation, and that Justice Scalia's originalism is a "fundamentally flawed approach to constitutional interpretation in criminal procedure issues because originalists fail to grasp-or to admit-the degree to which legal doctrine and legal institutions have changed since the framing");
201. Thomas Y. Davies, Selective Originalism: Sorting Out Which Aspects of Giles' Forfeitures Exception to Confrontation Were or Were Not "Established at the Time of the Founding", 13 LEWIS & CLARK L. REV. 605, 610, 663 (2009) (deriding "the purely fictional character of Crawford's purportedly originalist claim regarding the testimonial/nontestimonial hearsay distinction" and noting that "during the nineteenth century and most of the twentieth century[,] . . . forfeiture by wrongdoing plainly was limited to prior sworn and confronted testimony" and Scalia's forfeiture exception would expand the Framers' approach);
202. Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 BROOK. L. REV. 105, 107-08, 205 (2005) (arguing that there is no historical basis for the restriction of the confrontation right to only "testimonial" hearsay; the cross-examination rule derived from the application of Marian statutes was actually a legal development that occurred after the framing of the Sixth Amendment).
203. 448 U.S. 56 (1980).
204. Id. at 66
205. (quoting Mancusi v. Stubbs, 408 U.S. 204, 213 (1972)). This test was satisfied if the out-of-court statement falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness."
206. Id. (citations omitted).
207. Crawford, 541 U.S. at 68 n.10.
208. Id. at 61.
209. Id.
210. Id. at 56 n.6. ("The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed.").
211. See generally Aviva Orenstein, Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence, 2010 U. ILL. L. REV. 1411.
212. Crawford, 541 U.S. at 62 ("For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds."
213. (citing Reynolds v. United States, 98 U.S. 145, 158-59 (1878))).
214. The Court itself noted that "[w]e leave for another day any effort to spell out a comprehensive definition of 'testimonial.'" Id. at 68. It did not need to decide the question because Sylvia Crawford's statements to police at the station were "testimonial" by any measure. Chief Justice William Rehnquist predicted in his concurrence in the judgment that the immediate effect of Crawford would be immense confusion as to what sorts of statements were "testimonial."
215. Id. at 75-76 (Rehnquist, C.J., concurring in the judgment) (citations omitted). Many commentators agree.
216. See, e.g., Myrna S. Raeder, Domestic Violence Cases after Davis: Is the Glass Half Empty or Half Full?, 15 J.L. & POL'Y 759, 760 (2007) ("Crawford's failure to define what is testimonial led to two years of judges reading tea leaves, and reaching contrary outcomes.");
217. Jennifer B. Sokoler, Note, Between Substance and Procedure: A Role for States' Interests in the Scope of the Confrontation Clause, 110 COLUM. L. REV. 161, 173 (2010) (discussing Crawford's "failure to fully define the contours of the concept embedded at the heart of the new Confrontation Clause framework: testimonial statements").
218. Crawford, 541 U.S. at 51-52 (reasoning that at their core, testimonial statements include '"extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'"
219. (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in the judgment))). Beyond this list of obvious, formal testimonial statements, the court included other '"statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'."
220. Id. at 52
221. (quoting Brief for Nat'l Ass'n of Criminal Def. Lawyers et al. as Amici Curiae Supporting Petitioners at 3,
222. Crawford, 541 U.S. 36 (No. 02-9410), 2003 WL 21754961). Tellingly, the Court did not attempt to craft a definition of its own, but quoted from the parties and amici.
223. See id. 151.
224. See, e.g., Gary M. Bishop, Testimonial Statements, Excited Utterances and the Confrontation Clause: Formulating A Precise Rule After Crawford and Davis, 54 CLEV. ST. L. REV. 559 (2006);
225. Josephine Ross, Crawford's Short-Lived Revolution: How Davis v. Washington Reins In Crawford's Reach, 83 N.D. L. REV. 387 (2007).
226. Davis v. Washington, 547 U.S. 813, 817 (2006) (explaining its mission "to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are 'testimonial' and thus subject to the requirements of the Sixth Amendment's Confrontation Clause").
227. Ultimately, the Court did not rely on formality as a touchstone for determining whether a statement is testimonial. See id. at 826. Justice Thomas dissented in Davis, advocating a test that looked for "formalized dialogue . .. statements sufficiently formal to resemble the Marian examinations."
228. Id. at 840 (Thomas, J., concurring in the judgment in part and dissenting in part).
229. 547 U.S. 813 (2006).
230. 547 U.S. 813 (2006). In Davis and Hammon, the Court acknowledged that it had to refine its definition of "testimonial statements" because the "character of the statements in the present cases is not as clear, and these cases require us to determine more precisely which police interrogations produce testimony."
231. Id. at 822.
232. Id. at 818.
233. Id.
234. (quoting State v. Davis, 111 P.3d 844, 847 (Wash. 2005) (en banc), aff'd, 547 U.S. 813 (2006)).
235. Id. at 818-19.
236. Id. at 819.
237. Id.
238. (quoting Hammon v. State, 829 N.E.2d 444, 446-47 (Ind. 2005), rev'd sub nom.
239. Davis v. Washington, 547 U.S. 813 (2006)).
240. Id.
241. Id.
242. Id. at 820.
243. Id.
244. Id. at 822.
245. Id.
246. Id.
247. Id. at 827.
248. Id.
249. Id.
250. Id.
251. Id.
252. Id. at 828.
253. Id. at 829. Once the declarant started answering specific questions posed by the dispatcher regarding non-emergency matters, however, that part of the interview became a testimonial statement.
254. Id. at 828-29. The 911 call involved spontaneous statements by the declarant as well as answers to questions regarding the alleged perpetrator's date of birth, preceded by the exhortation from the 911 operator to '"[s]top talking and answer my questions.'"
255. Id. at 818
256. (quoting Brief for Petitioner at 42,
257. Davis v. Washington, 547 U.S. 813 (2006) (No. 05-5224), 2005 WL 3598182).
258. Id. at 829.
259. Id. at 830. As the Court explained: "Amy's narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer's questions, he had her execute an affidavit, in order, he testified, '[t]o establish events that have occurred previously.'"
260. Id. at 832
261. (quoting Brief of Petitioner Herman Hammon at 36,
262. Hammon v. Indiana, 547 U.S. 813 (2006) (No. 05-5705), 2005 WL 3597706).
263. Id.
264. (quoting Hammon v. State, 829 N.E.2d 444, 453, 457 (Ind. 2005), rev'd sub nom.
265. Davis v. Washington, 547 U.S. 813 (2006)).
266. Id.
267. 168 Eng. Rep. 202 (L.R.C.C.R.);
268. 1 Leach 199 (1779). For an excellent discussion of the Court's misuse of this case,
269. see Robert P. Mosteller, Testing the Testimonial Concept and Exceptions to Confrontation: "A Little Child Shall Lead Them ", 82 IND. L.J. 917, 923-33 (2007).
270. Davis, 547 U.S. at 828
271. (quoting Brasier, 168 Eng. Rep. at 202;
272. 1 Leach at 200).
273. Id.
274. Id. at 827 ("[T]he difference in the level of formality between the two interviews [in Davis and Crawford] is striking.").
275. Id. at 832
276. (quoting Hammon v. State, 829 N.E.2d 444, 453, 457 (Ind. 2005), rev'd sub nom.
277. Davis v. Washington, 547 U.S. 813 (2006)).
278. Id. at 840-42 (Thomas, J., concurring in the judgment in part and dissenting in part).
279. Id. at 841 n.6 (noting that some of the factors on which the Court distinguishes Davis, such as the fact that Hammon was separated from her attacker and that the events in Hammon were already over, apply equally to Davis).
280. Id. at 831.
281. Without so acknowledging, the Court switched its focus from the declarant to the government agent. In Crawford, the focus was on what Sylvia Crawford believed would happen with her statement. In Davis and Hammon, the purpose of the police investigator was equally if not more important than the intent of the declarant in ascertaining the testimonial quality of the statement. See Lininger, supra note 108, at 280;
282. Ellen Liang Yee, Confronting the "Ongoing Emergency": A Pragmatic Approach to Hearsay Evidence in the Context of the Sixth Amendment, 35 FLA. ST. U. L. REV. 729, 766 (2008) ("Notwithstanding the Court's claim that the inquiry is focused on 'the declarant's statements, not the interrogator's questions,' the opinion also repeatedly referred to whether the questioner's conduct can generate or produce testimonial statements."
283. (quoting Davis, 547 U.S. at 822 n.1)).
284. See, e.g., Lininger, supra note 108, at 274 ("[T]he Davis ruling accomplished a rare feat: it caused consternation among both prosecutors and defense attorneys. Commentators on all sides expressed their disappointment that the Court had not devised a comprehensive, easily administrable set of rules for the confrontation of accusers.");
285. Raeder, supra note 149, at 762 ("Davis' bright line is illusory and hard to apply.");
286. Yee, supra note 187, at 733 ("The Court's approach provides insufficient guidance to assist lower courts in determining which facts indicate the presence of an 'ongoing emergency,' particularly in the context of domestic violence."
287. (quoting Davis, 547 U.S. at 822)).
288. See Crawford v. Washington, 541 U.S. 36, 62 (2004).
289. Davis, 547 U.S. at 832-33. The Court added: "We take no position on the standards necessary to demonstrate such forfeiture."
290. Id. at 833.
291. Id. at 833;
292. see Orenstein, supra note 147, at 1435.
293. 128 S. Ct. 2678 (2008).
294. See Reynolds v. United States, 98 U.S. 145, 148-50 (1878) (admitting former testimony of wife where accused had kept his wife away from home so that she could not be subpoenaed to testify).
295. Such statements of fear by women anticipating their demise by the violent hands of a specific individual who intends to do the declarant harm do not qualify as dying declarations-it is not even a close question. Even where, as in Giles, a declaration anticipates murder days or weeks before a homicide, it fails the strictures of the dying declaration exception, because death is neither certain nor imminent. See Orenstein, supra note 147, at 1420-23.
296. Giles, 128 S. Ct. at 2681. The victim had no weapon, suffered some defensive wounds, and was shot while lying on the ground.
297. Id.
298. Id. at 2695 (Breyer, J., dissenting).
299. Id.
300. Id. at 2682 (majority opinion). Actually, some of the Justices expressed doubts about the testimonial nature of Avie's prior statement, which was made at a crime scene, but for the sake of argument, all nine Justices assumed without deciding that the statement was testimonial because the issue had been conceded below.
301. Id.
302. Id. at 2683-84.
303. See id. at 2688.
304. Id. at 2691-92. This would pose problems in cases where the accused denied killing the victim.
305. Id. at 2703-04 (Breyer, J., dissenting).
306. Id. at 2707.
307. DOUGLAS E. ABRAMS ET AL., CONTEMPORARY FAMILY LAW 327 (2d ed. 2009).
308. ELIZABETH M. SCHNEIDER ET AL., DOMESTIC VIOLENCE AND THE LAW: THEORY AND PRACTICE 7 (2d ed. 2008) ("Although domestic violence is often thought of as primarily physical .... abusers commonly combine physical abuse with psychological, financial, or other forms of abuse, such as isolation.");
309. see PATRICIA TJADEN & NANCY THOENNES, NAT'L INST, OF JUSTICE, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 5 (2000), available at http://www.ncjrs.gov/pdffilesl/nij/181867.pdf (discussing "the myriad behaviors that persons may use to control, intimidate, and otherwise dominate another person in the context of an intimate relationship," including "verbal abuse, imprisonment, humiliation, stalking, and denial of access to financial resources, shelter, or services").
310. Other aspects such as emotional abuse and psychological coercion are legitimate societal concerns, but are more difficult to address through law.
311. NAT'L COAL. AGAINST DOMESTIC VIOLENCE, DOMESTIC VIOLENCE FACTS 1 (2007), available at http://www.ncadv.org/files/DomesticViolenceFactSheet(National).pdf;
312. see also TJADEN & THOENNES, supra note 205, at iii ("Nearly 25 percent of surveyed women and 7.6 percent of surveyed men said they were raped and/or physically assaulted by a current or former spouse, cohabiting partner, or date at some time in their lifetime....").
313. See LISA A. GOODMAN & DEBORAH EPSTEIN, LISTENING TO BATTERED WOMEN: A SURVIVOR-CENTERED APPROACH TO ADVOCACY, MENTAL HEALTH, AND JUSTICE 9 (2008) (distinguishing between "situational couple violence," where both intimate partners occasionally engage in hitting, slapping, and throwing things, and "intimate terrorism" where the perpetrator tends to be a male who controls and coerces the female inducing fear and causing serious injury);
314. TJADEN & THOENNES, supra note 205, at 17 ("[W]omen were significantly more likely than men to report being victimized by an intimate partner .... [Differences between women's and men's rates of physical assault by an intimate partner become greater as the seriousness of the assault increases.. .. [Women] were 7 to 14 times more likely to report that an intimate partner beat them up, choked or tried to drown them, or threatened them with a gun or knife.").
315. See ELIZABETH M. SCHNEIDER, BATTERED WOMEN & FEMINIST LAWMAKING 13-20 (2000) (offering historical perspectives from Roman times to the present).
316. LISA SURRIDGE, BLEAK HOUSES: MARITAL VIOLENCE IN VICTORIAN FICTION 146 (2005) ("[D]ivorce court made public acts of 'private' cruelty covering the gamut from name-calling to violence, imprisonment, rude treatment in front of servants or children, and inappropriate treatment of the wife as mistress of the house.").
317. Bill Sikes is the villain in Charles Dickens's Oliver Twist, who beats and finally kills the good-hearted prostitute, Nancy.
318. See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2138-39 (1996) (documenting disproportionate judicial interest in wife beating among African Americans and the poor and noting that "[a]s wife beating emerged as a 'law and order' issue, class- and race-based discourses about marital violence became even more pronounced").
319. Domestic violence interacts with culture, race, immigration status, and religion, but occurs in diverse families. SCHNEIDER ET AL., supra note 205, at 97-127. It unquestionably exists among the privileged, who may experience more shame as victims and who despair of getting help because their batterers may wield power and influence in the community. Id. at 145-46. Recent scholarship has shown that even Victorian literature about good middle class families also intimated, if not fully described, tales of domestic violence. See, e.g., KATE LAWSON & LYNN SHAKINOVSKY, THE MARKED BODY: DOMESTIC VIOLENCE IN MIDNINETEENTH-CENTURY LITERATURE (2002) (discussing domestic violence in Victorian literature).
320. See Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. REV. 1657, 1661 ("At the time of this country's founding, wife-beating was approved as integrally connected to a system in which wives ceased to exist as independent legal entities upon marriage. Because husbands could be held responsible for their wives' conduct, it was believed that they had the right to control their wives' behavior, through physical violence if necessary." (citations omitted)); Siegel, supra note 212, at 2138-41 (discussing the Anglo-American common law of chastisement, and noting that when wife beating became illegal, the common law erected various immunities and doctrines of privacy to insulate the status quo and limit women's ability to challenge their batterers with criminal or tort law).
321. See generally SUSAN SCHECHTER, WOMEN AND MALE VIOLENCE: THE VISIONS AND STRUGGLES OF THE BATTERED WOMEN'S MOVEMENT (1982);
322. SCHNEIDER, supra note 209.
323. See, e.g., Thurman v. City of Torrington, 595 F. Supp. 1521, 1524-27 (D. Conn. 1984) (holding for the plaintiff based on police failure to respond to domestic violence where the victim had a protective order and for failure to intervene while witnessing the husband's extreme violence against his wife). This case is credited with changing municipal policies about domestic violence.
324. See, e.g., Sara R. Benson, Failure to Arrest: A Pilot Study of Police Response to Domestic Violence in Rural Illinois, 17 AM. U. J. GENDER SOC. POL'Y & L. 685, 690-91 (2009) (citing Thurman, and the $2.9 million in damages awarded to the plaintiff therein, as one of a "few widely publicized court cases holding police or police departments liable for a failure to protect domestic violence victims [that] motivated some states to enact mandatory arrest laws").
325. Myrna Raeder, Remember the Ladies and the Children Too: Crawford's Impact on Domestic Violence and Child Abuse Cases, 71 BROOK. L. REV. 311, 328 (2005) ("It became obvious relatively quickly in the fight against domestic violence that the major impediment to obtaining convictions was that the majority of battered women did not want to testify. Even when they appeared at trial, they often recanted their accusations and generally were bad witnesses, resulting in relatively few convictions." (citation omitted)).
326. People v. Brown, 94 P.3d 574, 576 (Cal. 2004) (quoting expert testimony that 80-85% of battered women '"actually recant at some point in the process'").
327. Raeder, supra note 149, at 760.
328. See SCHNEIDER, supra note 209, at 168 ("Custody has always been an important issue for battered women because, above all, they fear losing their children to the batterer."). This is not an unfounded fear.
329. See Raeder, supra note 217, at 364 (noting that a victim may rightfully "worry that her batterer's prosecution will result in her children being placed in foster care or in her facing charges of child endangerment");
330. Sarah Childress, Fighting Over the Kids: Battered Spouses Take Aim at a Controversial Custody Strategy, NEWSWEEK, Sept. 25, 2006, at 35. It is common for abusive men to threaten a victim's children or to scare the victim into believing that she will lose custody of her children if she leaves him. As to the latter threat, although many states have presumptions against awarding custody to batterers or use domestic violence as a negative factor in awarding custody, wife-battering fathers prevailed in 40% of contested cases. SCHNEIDER, supra note 209, at 169
331. (quoting Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 44-45 (1991)). Women who leave battering relationships are often financially disadvantaged and sometimes experience psychological or addiction problems. They can appear unbalanced and unprepared to care for their children.
332. See generally Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041 (1991); Mahoney, supra.
333. See G. Kristian Miccio, A House Divided: Mandatory Arrest, Domestic Violence, and the Conservatization of the Battered Women's Movement, 42 Hous. L. REV. 237, 307 (2005) ("If we listen to women survivors, we learn that they stay for myriad reasons-fear of reprisal, fear of losing their children, economic concerns, emotional ties to the batterer or his family, lack of social or familial support, and lack of a place to go." (citations omitted)).
334. Phyliss Craig-Taylor, Lifting the Veil: The Intersectionality of Ethics, Culture, and Gender Bias in Domestic Violence Cases, 32 RUTGERS L. REC. 31, 48-49 (2008). But see Sack, supra note 214, at 1679 n.108 ("Although the reluctance of women of color to call police is often asserted, actual studies of victim reporting show that African American women call police in domestic violence situations at a rate higher than white women."
335. (citing Joan Zorza, Mandatory Arrest, in 3 ENCYCLOPEDIA OF CRIME AND PUNISHMENT 1023, 1027 (David Levinson ed., 2002))).
336. See ABRAMS ET AL., supra note 204, at 328 (citing CALLIE MARIE RENNISON & SARAH WELCHANS, BUREAU OF JUSTICE STATISTICS, PUBL'N NO. NCJ 178247, INTIMATE PARTNER VIOLENCE 5 (2000), available at http://bjs.ojp.usdoj.gov/ content/pub/pdf/ipv.pdf ("[D]ivorced or separated persons were subjected to the highest rates of intimate partner victimization.")); GOODMAN & EPSTEIN, supra note 208, at 76 ("Substantial data show that separation from the batterer is the time of greatest risk of serious violence and homicide for battered women and for their children." (citations omitted));
337. Carol E. Jordan, Intimate Partner Violence and the Justice System: An Examination of the Interface, 19 J. INTERPERSONAL VIOLENCE 1412, 1413-14 (2004).
338. See Sack, supra note 214, at 1673-74 ("No-drop policies, as well as other innovations in domestic violence prosecution, have increased the prosecution rate of these cases, and some studies show that they have lowered recidivism." (citations omitted)). But see generally Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U. PA. L. REV. 1171, 1182-1200 (2002) (pre-Crawford article questioning the fairness and constitutionality of prosecutions based on 911 calls). This is what Professor Myrna Raeder has aptly termed the "witness-lite/hearsay-heavy approach." Raeder, supra note 217, at 329.
339. See Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1903 (1996) (advocating use of 911 tapes to prove battery where the victim will not testify).
340. See supra notes 142-43 and accompanying text.
341. SCHNEIDER ET AL., supra note 205, at 328; Hanna, supra note 225, at 1884 ("If we reject mandated participation because it would be 'revictimizing,' we neither account for the women's strength and resilience nor acknowledge the political and social context in which battering occurs." (citations omitted)).
342. Hanna, supra note 225, at 1891.
343. SCHNEIDER ET AL., supra note 205, at 328 (quoting police officers that the solution to the problem of escalating violence post-arrest was "to take the responsibility out of the hands of the victim and place it with the State where it belongs" (quoting Casey G. Gwinn & Anne O'Dell, Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. ST. U. L. REV. 297, 310 (1993))); Lininger, supra note 108, at 294 (explaining the view that "vacillating accusers are not exercising moral autonomy, but rather are submitting to a pattern of abuse and intimidation that has undermined their self-determination; according to this view, a no-drop policy is necessary to vindicate the accuser's autonomy" (citation omitted)).
344. Hanna, supra note 225, at 1891 ("When a batterer and his defense attorney know that a victim's failure to cooperate may result in case dismissal, they control the judicial process.").
345. For views criticizing no-drop policies, see Leigh Goodmark, Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions in Domestic Violence Cases, 37 FLA. ST. U. L. REV. 1, 45 (2009) ("[D]omestic violence law and policy should respect the rights of individual women to choose whether and how to use the criminal and civil legal systems."); id. at 4 ("Making safety the primary goal of legal interventions is intuitively appealing and explains policies like mandatory arrest. But th[is] goal[] of advocates, policymakers, and system actors might differ from those of women who have been battered.");
346. Linda G. Mills, Intuition and Insight: A New Job Description for the Battered Woman's Prosecutor and Other More Modest Proposals, 7 UCLA WOMEN'S L.J. 183, 191 (1997) (criticizing mandatory prosecutions because they may "align the battered woman with her batterer, to protect him, and to further entrench her in the abusive relationship").
347. See Fowler v. State, 809 N.E.2d 960, 965 (Ind. Ct. App. 2004) (discussing pressure put on victim to testify or face false reporting and observing that "[g]iven the psychological complexities of domestic violence cases, it is not at all clear to us that such an approach in trying to 'encourage' a victim to testify is desirable"); Raeder, supra note 217, at 328-29 (noting that women who refuse to testify have faced threats of imprisonment and criminal charges for child endangerment; some women have been jailed as material witnesses).
348. See, e.g., GOODMAN & EPSTEIN, supra note 208, at 75 ("[T]he victim is swept into a process over which she has little control. Her own wishes and needs become largely irrelevant to that process, even when she fears that prosecution will provoke the batterer into retaliatory abuse against her, when she needs her partner's economic support to keep her family afloat, or when she fears that her partner will be deported as a result of the prosecution.").
349. See Raeder, supra note 217, at 329 ("[E]mpirical evidence indicated that some classes of women were put at greater risk by aggressive prosecution, particularly in misdemeanor cases where defendants were released pretrial, or received probation or short sentences." (citations omitted)).
350. See Miccio, supra note 221, at 241-42 ("A dominant and troubling theme that has emerged within the Protagonist bloc is that such practices are necessary because battered women are incapable of making a 'rational' choice while being traumatized by the violence. Mandatory practices then serve as a necessary shield-not just from the violence of individual males, but from what is perceived as survivor powerlessness." (citations omitted)).
351. Linda G. Mills, Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 HARV. L. REV. 550, 595 (1999) ("[A] dynamic between the state and the battered woman emerges that distinctly mimics the violent dynamic in the battering relationship.").
352. See GOODMAN & EPSTEIN, supra note 208, at 76 ("[B]y coercing victims' participation in the prosecution, the government may teach them to distrust the criminal justice system in general. This experience may well make them far less likely to contact police or prosecutors in the future, which in turn may leave them more trapped than ever in their violent homes."); cf. Mills, supra note 236, at 595 ("[M]andatory interventions deny the battered woman an important opportunity to partner with the state to help ensure her future safety.").
353. See generally Kimberly D. Bailey, The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence, 2009 BYU L. REV. 1.
354. In a survey of over 60 prosecutors' offices in California, Oregon, and Washington, 63 percent of respondents reported the Crawford decision has significantly impeded prosecutions of domestic violence. Seventy-six percent indicated that after Crawford, their offices are more likely to drop domestic violence charges when the victims recant or refuse to cooperate. Alarmingly, 65 percent of respondents reported that victims of domestic violence are less safe in their jurisdictions than during the era preceding the Crawford decision. Tom Lininger, Prosecuting Batterers after Crawford, 91 VA. L. REV. 747, 750 (2005) (citations omitted); see Lininger, supra note 108, at 281 ("The Supreme Court's recent interpretations of the Confrontation Clause have hindered many categories of prosecutions, but none more significantly than prosecutions of domestic violence." (citation omitted)).
355. I do not discuss the most recent confrontation case, again authored by Justice Scalia, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), which deals with the right to confront forensic experts. It differs in tone and subject from the triumvirate of Crawford, Davis, and Giles, though its focus on testimonial statements and avowed disinterest in the practical effects on prosecutions perpetuates important themes of those cases.
356. See Orenstein, supra note 147, at 1448 n.244 (analyzing the role of gender in the spousal privilege that prevented Sylvia Crawford from testifying).
357. Giles v. California, 128 S. Ct. 2678, 2692-93 (2008).
358. Id.
359. Id. at 2692. To be fair, the dissent reads forfeiture more broadly but never intended to dispense with Crawford. See id. at 2696 (Breyer, J., dissenting).
360. Id. at 2693 (majority opinion).
361. In fact, Jeffrey L. Fisher, an attorney who argued Davis before the Supreme Court, suggests the Court has simply revived the doctrine of res gestae by focusing on the past/present or happening/happened elements of a situation. See generally Fisher, supra note 8.
362. Davis v. Washington, 547 U.S. 813, 827 (2006).
363. Id. (citations omitted).
364. Id. at 830.
365. Id. at 827.
366. Id. at 831.
367. Id. at 827 (alteration in original) (quoting Crawford v. Washington, 541 U.S. 36, 51 (2004)).
368. R v. Bedingfield, (1879) 14 Cox Crim. Cas. 341 (Crown Ct.) at 342 (Eng.).
369. Id. at 342-43.
370. COCKBURN, supra note 111, at 20.
371. PITT TAYLOR, supra note 112, at 8.
372. See supra note 223 and accompanying text (discussing increased danger when women try to leave violent relationships or attempt to seek legal remedies).
373. Davis v. Washington, 547 U.S. 813, 822 (2006).
374. Id.
375. Deborah Tuerkheimer, A Relational Approach to the Right of Confrontation and Its Loss, 15 J.L. & POL'Y 725, 726 (2007) (arguing that the Court's understanding of domestic violence is "sufficiently inaccurate as to fatally undermine the coherence of both doctrine and theory"). Tuerkheimer argues that the Court's understanding of what constitutes an emergency must be expanded to take account of ongoing domestic violence situations like that in Hammon. Id. at 726-27. She argues that the test for "testimonial statements" incorporates "a model of discrete, episodic violence that is incompatible with the ongoing nature of abuse" and reveals "complete inattention to the dynamics of battering." Id. at 727-28.
376. Id. at 728 (footnote omitted).
377. Id.
378. Id. at 732 ("The exigency she experiences requires a narration of past events in order to resolve the immediate danger they precipitated. This reality fatally undermines judicial reasoning predicated on the 'crying for help' versus 'providing information to law enforcement' rubric").
379. Id. at 731 ("Unlike victims of episodic crimes, a battered woman may 'cry for help' because it is the only possible way for her to experience a moment of safety, however brief.").
380. Id. at 734.
381. In Giles, Justice Scalia did acknowledge the domestic violence context as important in evaluating witness intimidation for the forfeiture question. This one concession to the context of the case is out of character with the rest of his opinions, and at least one commentator believes it reflects an attempt to get liberal Justices on board. Tom Lininger, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, 87 TEX. L. REV. 857, 885 (2009) (postulating that the sensitivity to domestic-violence victims, which was out of character with the rest of the opinion was designed to win over votes from other Justices).
382. Davis, 547 U.S. at 820.
383. Arguably, Sylvia Crawford also remains unheard as well because her testimony was excluded by the spousal testimonial privilege. I do not include Crawford in this discussion because Sylvia Crawford was not the victim in the case and suffered no violence at the hands of her accused husband. Although her out-of-court statement was effectively silenced, there are strong indications that she did not wish her statement to be used. Sylvia's statement to the police included her belief that her husband Michael is '"one of the most fair people you'll ever meet' and that he was her 'best friend.'" State v. Crawford, No. 25307-1-II, 2001 WL 850119, at *3 (Wash. Ct. App. July 30, 2001). Additionally, Sylvia Crawford was a potential accused, and would have probably invoked her Fifth Amendment right against selfincrimination. This argument was made by the accused in his petition to the Supreme Court, and the petitioner noted that, after his trial, Sylvia was also charged with a crime based on the stabbing incident. Brief for Petitioner,
384. Crawford v. Washington, 541 U.S. 36 (2004) (No. 02-9410), 2003 WL 21939940 at *5 n.1.
385. As discussed above, there is a serious question as to whether those words were ever uttered. See supra notes 90-93 and accompanying text. However, the reason for excluding Rudd's alleged statement had nothing to do with concern about its reliability, but with formal analysis that it did not fit the criteria of dying declarations or res gestae.
386. Orenstein, supra note 147, at 1447 (referring to the term "declarant" as an "abstract, bloodless term").
387. See supra note 141.
388. 497 U.S. 836 (1990).
389. Id. at 840-41.
390. Id. at 857.
391. Id. at 841-42, 851.
392. Id. at 841-42.
393. Id. at 844.
394. Id. at 845.
395. Id. at 846.
396. Id. at 849 (quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980)).
397. Id. (quoting Mattox v. United States, 156 U.S. 237, 243 (1895)).
398. Justice Scalia authored a blustering dissent to Craig, joined by the liberal wing of the Court, Justices William Brennan, Thurgood Marshall, and John Paul Stevens: Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court. Id. at 860-61 (Scalia, J., dissenting).
399. See Marc C. McAllister, The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 DRAKE L. REV. 481, 507 (2010) ("[T]he Crawford ruling, which soundly denounced the reliability-based analysis endorsed by Craig, suggests the stage has been set for Craig's demise."
400. (citing David M. Wagner, The End of the "Virtually Constitutional"? The Confrontation Right and Crawford v. Washington as a Prelude to Reversal of Maryland v. Craig, 19 REGENT U. L. REV. 469, 470 (2007))); Wagner, supra, at 470 ("Crawford v. Washington contains dicta incompatible with Maryland v. Craig and portends that aberrant decision's downfall.").
401. See Eileen A. Scallen, Coping with Crawford: Confrontation of Children and Other Challenging Witnesses, 35 WM. MITCHELL L. REV. 1558, 1591 n.195 (2009) (discussing several cases upholding Craig after Crawford).
402. As the Supreme Court of Washington noted, "a hang-up call often signals that the caller is in grave danger." State v. Davis, 111 P.3d 844, 850 (Wash. 2005) (en banc), aff'd, 547 U.S. 813 (2006).
403. State v. Davis, 64 P.3d 661, 663 (Wash. Ct. App. 2003).
404. Davis, 111 P.3d at 847.
405. Hammon v. State, 829 N.E.2d 444, 447 (Ind. 2005), rev'd sub nom.
406. Davis v. Washington, 547 U.S. 813 (2006).
407. Id. at 448n.3.
408. Giles v. California, 128 S. Ct. 2678, 2693 (2008).
409. Id. at 2695 (Souter, J., concurring in part).
410. Id.
411. Lininger, supra note 266, at 865. Intimidation can take many forms, and courts will need to be aware that not only physical force, but credible threats to harm the victim, harm the victim's children, or separation of the victim from her children, will count as the type of intimidation that should trigger forfeiture. Id. at 868-69.
412. Giles, 128 S. Ct. at 2688.
413. See supra note 201 and accompanying text. This sort of preliminary determination of an ultimate fact happens all the time under Federal Rule of Evidence 104. See, e.g., Bourjaily v. United States, 483 U.S. 171, 175 (1987).
414. Giles, 128 S. Ct. at 2686.
415. He couldn't have done otherwise, since his "niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand." Id. at 2681.
416. See Raeder, supra note 217, at 312 ("Crawford's originalist approach eschews the question of what the founding fathers would have thought of a world that espouses zero tolerance for domestic violence, one in which 911 protocols are routine, as are pro- or mandatory-arrest policies, no-drop prosecutions, criminal contempt convictions for violation of protective orders, expansive hearsay exceptions and in some states reporting requirements for medical personnel. Instead, under Crawford, the confrontation right looks backward, not forward.").
417. See supra note 111.
418. Giles, 128 S. Ct. at 2699 (Breyer, J., dissenting).
419. Id.
420. Lininger, supra note 266, at 871.
421. Id.
422. Crawford v. Washington, 541 U.S. 36, 51 (2004).
423. See generally Robert P. Mosteller, Confrontation as Constitutional Criminal Procedure: Crawford's Birth Did Not Require that Roberts Had to Die, 15 J.L. & POL' Y 685 (2007).
424. Davis v. Washington, 547 U.S. 813, 821 (2006).
425. Lininger, supra note 108, at 326 ("Testimonial hearsay has attracted the Court's attention, but the Court cannot seem to discern a constitutional role in the regulation of nontestimonial hearsay."). Concededly, the pre-Crawford approach to such evidence under Roberts would probably have admitted these statements as well. See supra notes 142-43 and accompanying text. Roberts's focus on reliability took an unfortunate turn whereby all "firmly rooted hearsay exception[s]" were presumed to bear "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66 (1980). Crawford rightfully decoupled confrontation from hearsay, but Crawford's total inattention to reliability is problematic.
426. Giles v. California, 128 S. Ct. 2678, 2692-93 (2008);
427. see id. at 2694 (Alito, J., concurring) ("The Confrontation Clause does not apply to out-of-court statements unless it can be said that they are the equivalent of statements made at trial by 'witnesses.'");
428. Raeder, supra note 217, at 324 (noting the "automatic pass" for all nontestimonial hearsay).
429. Relatedly, some critics of Davis express concern about the rights of the accused and argue that a judge's discretion to identify an ongoing emergency simply reinvigorates the vague, manipulable, and unpredictable standards Justice Scalia claimed to eliminate in overruling Roberts. See, e.g., Michael D. Cicchini, Judicial (In)Discretion: How Courts Circumvent the Confrontation Clause Under Crawford and Davis, 75 TENN. L. REV. 753, 764 (2008);
430. Lininger, supra note 108, at 280. Feminists, who are aware of the injustices caused by stereotypes and stigmas, must be concerned with the rights of the accused. See Raeder, supra note 217, at 313-14 ("As a feminist who is also concerned about the defendant's right to confrontation, I have long pondered the proper balance to ensure that the voices of women and children are heard, without eviscerating the ability of the defendant to confront live complainants, and not just second-hand witnesses.").
431. Lininger, supra note 108, at 274 (noting the "lamentable asymmetry in confrontation law: the right to confront declarants of testimonial hearsay was now too strong, while the right to confront declarants of nontestimonial hearsay was now too weak").
432. Robert P. Mosteller, Giles v. California: Avoiding Serious Damage to Crawford's Limited Revolution, 13 LEWIS & CLARK L. REV. 675, 676 (2009);
433. see also Davies, Not the Framers' Design, supra note 141, at 350-51 ("As a practical matter, it seems likely that the narrow scope accorded to the confrontation right in Crawford will allow prosecutors considerable room to use hearsay evidence in criminal cases rather than produce the person who made the out-of-court statement as a trial witness, even when the person who made the hearsay statement is readily available to be called.");
434. Raeder, supra note 217, at 320 ("Crawford opens the possibility of large amounts of hearsay receiving no constitutional second-look at all
435. See Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen Years-The Effect of "Plain Meaning" Jurisprudence, The Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 GEO. WASH. L. REV. 857, 907 n.266 (1992) (reprinted at 142 F.R.D. 519).
436. See generally Orenstein, supra note 99.
437. See Raeder, supra note 217, at 321 ("[I]t is imperative to retain a reliability review given a testimonial approach.").
438. See Lininger, supra note 108, at 308.