My dad (hi dad!), a criminal defense lawyer, sent me this email to weigh in on the 911 domestic violence case I wrote about here.
He says:
I helped do a moot court for Jeff Fisher, the lawyer who argued the Washington case. I think painting this case as a pro or con domestic violence issue is too simplistic and wrong. A criminal accusation is a serious matter and it is important to test the credibility and reliability of witnesses who make these accusations. Cross-examination and confrontation, while not perfect, are usually the best tools available to an accused person. Domestic violence counsellors will claim that false accusations in this area never or very rarely take place. While most dv allegations are usually true or partially true, there are significant examples of false, exagerated or fabricated accusations.
Many of these cases involve people (both the accused and the accuser) who have troubled pasts, mental health issues, substance abuse issues and revenge agendas. Sorting through this and determining the truth, or the closest one can get to the truth under a presumption of innocence, requires that the person giving the testimony be subject to questioning by the lawyers, be seen by the jury and subject to the formality of an oath and the penalty of perjury.
I’ve seen a lot of weird cases over the years which at first blush appear open and shut when one reads a police report and listens to a 911 call. But then you meet the defendant, interview the witnesses and the person who made the accusation a much different picture emerges. Not requiring the prosecutor to call the person who made the phone call will make it easier for prosecutors to just not try very hard to track down those witnesses who when seen and heard in the light of day would not be believed by the jury. The prosecutors will continue to work hard at getting the good witnesses into court to testify, because its in their interest to do so. When presenting the witness makes their case weaker, why would the prosecutor make that extra effort. However, its in those cases where its most important for the jury to see and hear from the witness to avoid the innocent defendant from being convicted based on the drama of a phone call.
Anyway thats my two cents. I don’t know how to post it on your web-site, but feel free to do so if you wish.
Obviously he’s coming from a different place on this one than I am, and I pretty much disagree with him here (which isn’t unusual). From the other perspective, we had a Manhattan prosecutor come and speak to my Lawyering class last week, and he too addressed this case, explaining that a lot of domestic violence survivors are hesitant or afraid to press charges. They fear additional violence, or they’re still in love with their partner and plan on going back. A problem that prosecutors run into is presenting their case with an uncooperative victim. Since it’s not a civil case, it’s not as simple as accuser v. accused; it’s the people v. accused, and they have the burden of doing justice even if the victim doesn’t fully cooperate. On the other hand, though, accused parties do have the right to confront the people accusing them. Anyway, I thought his point was interesting. Thoughts?
Oh, and I don’t know what’s up with him not knowing how to post a comment here. Dad. Come on. It’s not hard. Just type in the box and click “submit.”
Of course, this is the man who called me on Thursday night to say, “Did you see South Park? They killed Chef!” and then went on and on about Tom Cruise and Scientology, so I just don’t know.
I haven’t read too much about this case, but is the problem that they’re trying to use the tapes for evidence that the abuse happened, so that they’re inadmissible hearsay and have a Confrontation Clause problem? Or are they trying to get these tapes made inadmissible even to just establish that the police received a complaint?
Oh, and Isaac Hayes left South Park because they made fun of Scientology. He didn’t have a problem with Jesus vs. Santa Claus or the Mel Gibson stuff, but make fun of a fellow Scientologist, and he’s offended.
It’s worse even than that. Hayes had a stroke in January, and the statement didn’t actually come from him, but from a fellow Scientologist who may have used his incapacity to make a misleading statement on his behalf. The latest story is that Hayes is saying he still wanted to work on South Park when he recovered, and was devastated to find out his character had been killed off. Now, it’s possible that Hayes is covering his ass after realizing that the blowback from this is hurting his career, but if that’s the case, then he’s just thrown his religion over the side to save his public image. And if it isn’t the case, then eager Scientologists put out a false statement which he wasn’t in a position to contradict. Given that he’s been in Florida ever since the stroke, and the statement was allegedly released in LA, the whole thing seems pretty fishy.
Why would ANYBODY want to join this fucking cult? They seem to revel in torpedo-ing their members’ careers. The more publicity they get, the weirder they’re revealed to be. Not to mention that woman in upstate New York whose untreated schizophrenic son killed her (being a lifelong Scientologist, she tried to treat him with vitamins, and used waivers he’d signed joining the Church of Scientologist to show law enforcement that he would absolutely not want psychiatric treatment, when police and a local hospital wanted him in a psych ward and on meds. She convinced them to send him home with her instead). And the way Tom Cruise acts in public, I’m starting to wonder if he might be bipolar. It’s not normal for a 40 plus actor with a long history of saying the right stuff to the media to be that erratic in public. Granted, I’m not a shrink, so maybe I’m wrong re: the diagnosis, but he’s acting bizarrely.
Both cases are Confrontation Clause cases stemming from Crawford v. Washington : Davis v. Washington, see http://www.scotusblog.com/movabletype/archives/2006/03/tomorrows_argum_33.html
, and Hammon v. Indiana, see http://www.scotusblog.com/movabletype/archives/2006/03/tomorrows_argum_32.html.
So why is it that the Constitution doesn’t apply during domestic violence cases?
It’s interesting that feminist liberals like you are extremely critical of neoconservatives even though you have a lot in common, such as a disregard for the Constituion. Neocons think the Constitution doesn’t apply in terrorism cases, liberals think it doesn’t apply in DV cases.
Andrew, why don’t you read the links MattP provided and figure out what the case is actually about?
Because this has nothing to do with liberals wanting the Constitution not to apply to domestic violence cases, and everything to do with a fairly esoteric matter of interpretation of a term in a Supreme Court case. Nobody’s saying that the Confrontation Clause doesn’t apply at all; the sole issue in the case is whether this type of evidence falls into the definition of “testimonial” evidence and violates the Confrontation Clause, or whether it falls into “non-testimonial” evidence and can be admitted under one of the exceptions to the hearsay rule.
Andrew,
At least with regard to Davis, the United States has intervened on behalf of the state of Washington, supporting the view that the evidence does not violate the Confrontation Clause (and thus is admissible). I’d hardly characterize the current DOJ/SG as “feminist liberal.”
Furthermore, Zuzu is right, insofar as at least Davis does not require a rule either rigidly applying or “ignoring” the Confrontation Clause. Rather, as the majority of courts have held, the Washington Supreme Court concluded that 911 calls should be evaluated on a case-specific basis as to whether they are testimonial (and thus trigger the Confrontation Clause).
Prosecutors can subpoena witnesses for testimony, including victims of violent crime. If the witness doesn’t show, or lies on the stand, he or she can be prosecuted. Why can’t prosecutors use these tactics to get more victims of domestic violence to testify? I don’t particularly like the idea of threatening to throw DV victims in jail, but it’s certainly better than leaving them to suffer further abuse.
Because then, Erika, you are putting a victim of DV between a rock and a hard place: faced with a choice of jail or further abuse, or jail AND further abuse (there is no guarantee that an abuser will be convicted at all) , what do you think a victim is going to do? She’s never going to make the call in the first place.
Correct me, attorney bloggers, if I am wrong, but I believe the reason they stopped threatening victims of DV with jail for failure to testify was something to do with undue burden?
Besides, if you threaten a witness and she does testify, you may wind up getting an earful of The Fifth. If a woman is married to her abuser she is not obligated to testify against him.
I could not disagree more with The Dad’s email that DV victims are mental health cases, drug abusers, etc — it’s a very unfortunate stereotype.
Perhaps The Dad ought to consider reading, ” Not to People Like Us: Hidden Abuse in Upscale Marriages”.
You’re a prosecutor. You’re trying to make a case in front of a jury. Your complaining witness is uncooperative.
Not only that, the defense will have a crack at her, and she’s likely to undermine your entire case.
Just not a particularly smart strategy when you have other evidence that can make your case circumstantially.
To clarify, that’s not what he was saying. He just said that you do get some people who are mental health cases, drug abusers, etc. Not that they all are.
Ok, I do see that he said “Many”, and includes perps and victims. but still….
Thing is, when a person mentions this up front it sort of minimizes the issue and marginalizes it, generally speaking, to the fringe. And calls into question the validity of the credibility of all the victims based on an assortment of victims. Which is unfair. I just think it would be great if he would read the above book because it demonstrates the prevalance of DV in middle and upper middle class families and thus, brings it out of the fringe groups into mainstream society – in which DV is very prevalant. It’s not a bunch of wackos or fringe elements…. It’s bankers and accountants too. Anyway… you get my drift.
I just get kind of aggravated when I hear someone say that the reason DV victims don’t testify is because they are flakes or some kind. For the most part, they aren’t. They don’t want to testify because they are usually related to the person they are testifying against. Or against someone who, at the very least, knows exactly where they live and all sorts of information about them. It’s very hard to do, particularly when you’re already enmeshed by that person via guilt, threats, etc.
anyway, I always have to pop up and defend DV victims. That’s just me . :-)
I think this issue is a tricky one, just because there is a very real minority of false accusers. As much I would like to see all DV victims vindicated and their abusers behind bars (and the prosecution process streamlined in favor of the victims), I really can’t stomach the idea of innocent people in jail any better. This sort of issue makes me very angry at that tiny minority of women who make false accusations for the sake of revenge, because it undermines the credibility of real victims everywhere.
Maybe I’m a little more attuned to that side of the issue, because my husband’s ex-wife accused me of abusing her children (her lawyer wisely convinced her not to take it to court). And she’s not mentally ill or a drug abuser. She’s just plain vengeful. But that experience really made me wonder – who would believe me if it were just my word against hers? The wicked stepmother is a convenient scapegoat.
Anway, my point is that like it or not, there are vicious vengeful women out there who will punish their husbands in the most hurtful way possible if they can get away with it. I think the penalty for false accusations should be much, much stiffer in order to discourage those women. They’re committing a grave injustice toward the real victims of abuse and bogging down the whole system (which is already very flawed). It only takes one false accusation to cast a shadow of doubt on all abuse victims. It’s a catch-22. I want to see the real abusers convicted as much as anyone, but not innocent people. I don’t know if there’s a simple solution anymore. And I’m rapidly losing faith in the courts altogether.
“there is a very real minority of false accusers.”
Why do people often feel the need to qualify what they are going to say about battered women?
there is a “real minority” of false accusation risk in *any* crime. DV happens to get spotlighted for this problem quite frequently. This is probably due to the fact that it is often a he said/she said issue.
But curiously, you almost never hear the “False accusations weakening prosecution for real victims” –unless it happens to be about women victims.
Because we’re all such pathological, vindictive liars, remember? And since we have a hive mind if one woman does it we’re all guilty of it.
In other words, negative stereotypes of women contribute hugely to the problem.
I get so tired of hearing the caveats, “but you know it really affects mostly fringe elements..” .or…” but you know women really *are* vindictive liars and here’s my anecdote to prove it….”
Studies show false allegations run about 1% – 2% of cases. That’s less than marginal.
Besides, the anecdote in the post above is irrelevant, as this woman didn’t apparently raise claims- she was told not to, right? People may “accuse” one another of all sorts of things in the heat of anger or in the moment- it’s another thing altogether to pursue an accusation like this all the way through the system.
Which is why it’s so damned important to keep IN the 911 calls and any other evidence which will support the testimony of the victim. As victims are already up against credibility issues to an enormous degree.