More on Davis/Hammon

By Kevin Russell
on Jun 19, 2006 at 2:58 pm

Joan Meier has these thoughts on today’s opinion:

Well, I can’t exactly say “I told you so” to Richard (who I believe promised me at one early point he’d get 9-0 on both cases – if I recall correctly), since Ginsburg’s name on this opinion is disappointing to me, but on balance, I’m feeling relieved by this decision. No disagreement with those that think it’s not entirely principled – as we all know, often, police are operating out of dual motives: both seeking to address any safety needs and to gather evidence. Thomas got this right as well as several other points. However, I’ve always suspected the Court would split the difference – my only concern was with whether Scalia would be able to persuade a majority that Davis should get reversed too.

The good news for the domestic violence world is obviously that at least statements not made for purposes of “testimony” in court will not be blocked by the Confrontation Clause. The other encouraging aspect of the decision is also that the Court has encouraged a robust use of the forfeiture doctrine and subtly endorsed the preponderance standard and hearsay evidence in those pretrial hearings – both issues that are critical if forfeiture is going to be a viable avenue for addressing the wrongful intimidation of victims from testifying. (Might I be forgiven for crowing a bit about the fact that it was our dv amicus brief that addressed forfeiture and suggested a remand on that issue if need be?) It will also be critical for prosecutors and courts to understand that forfeiture can occur based on dfs’ earlier conduct and threats – e.g., “don’t you ever call the police, or else!” – made long before the actual events leading to this particular arrest. Prosecutors and police will now need to do in-depth investigations into the history of abuse, up front, early on, so they have the information they need relevant to forfeiture when the victim disappears from the case.

I’m not sure I agree with Richard’s prediction that police will now just announce that their interrogations were for emergency purposes and get the statements in that way. On the contrary, I have not seen most courts ignoring or getting around Crawford – I see them construing it far more broadly than necessary – even raising it in civil cases, for instance. I don’t think lower courts – even if the police are as devious as Richard suggests – will buy such facile wording. I think the Supreme Court rightly dismissed the claim that police will just jimmy up whatever situations/claims they need to meet doctrinal standards. The decision does seem pretty clear that it’s an “objective” test that looks at the circumstances (of course what that means is in the eye of the beholder). Unfortunately from where I sit, the resolution of the Hammon case will send a negative message to lower courts that might have read those same facts differently – as Thomas (to my surprise) rightly says – the danger was far from over, and there’s ample reason to believe that the police need to know who did what to whom in order to reduce the risk of future violence.

My disappointment is with Ginsburg’s and Stevens’ signing on to an opinion that actually says that dv crimes are notorious for intimidation or coercion of victims to ensure they don’t testify, and “when this occurs the CC gives the criminal a windfall” and then goes on to say, essentially, “too bad.” I still aspire to see the day when the Court and the culture understand that the victimization of women and children does not need to be excluded from recognition under the Constitution – that the words and principles can be construed with the reality of all people in mind. In this particular case, I still find it bizarre to suggest that a Clause which was intended to ensure that witnesses testify, needs to be construed in such a way as to further the exclusion of witnesses.

Two questions for all:
(1) How many people predicted that Scalia would go over to the “other” side (he clearly did not agree with this position at the time of the argument) in order to gain a stronger majority?
(2) To what extent do you think the decision leaves room to argue in another on-the-scene case that the danger is ongoing even tho a particular assault is over?