Brooks Holland has these further thoughts on the case:
Joan Meier earlier noted the importance of the confrontation forfeiture doctrine to domestic violence cases. Although Davis mentions forfeiture only briefly, the Court did remind lower courts that “Crawford … did not destroy the ability of courts to protect the integrity of their proceedings.†This brief portion of the Court’s opinion ultimately may prove as interesting as the testimonial hearsay claims themselves, since Davis likely will motivate greater development of constitutional forfeiture jurisprudence, an area of the law that has remained stunted in the domestic violence context, I think, because of the pre-Crawford ease with which most hearsay was admitted and the uncertain status of these statements while Davis and Hammon were pending. At least some domestic violence prosecutions, however, now will involve statements falling on the Hammon side of the testimonial equation—however that line precisely might come to be drawn from the Davis opinion—so the time would seem to have arrived for the forfeiture doctrine to be addressed with greater attention to domestic violence cases.
Richard Friedman has written a great deal in the area of confrontation forfeiture, but his work to my knowledge has not focused on domestic violence cases. Deborah Tuerkheimer, a law professor at the University of Maine and a former domestic violence prosecutor in New York, has written an important article on this subject for the North Carolina Law Review, “Crawford’s Triangle: Domestic Violence and the Right of Confrontation.†In it, she argues for a reconceptualization of forfeiture principles in domestic violence cases to reflect the unique dynamic of intimate battering, and to maintain proper alignment of what she terms the triangular relationship between the accused, the accuser and the state in criminal cases. Her article offers the well-grounded insight of someone who has worked extensively with these cases, and her contextualized approach to forfeiture and domestic violence strikes me as the way to go. Joan Meier’s post appears to advocate this kind of approach.
Yet, other important questions still would need to be resolved that could affect the application of such a principle greatly. For instance, what standard of proof does the Constitution require before a forfeiture of confrontation rights can be found? Was the Court’s reference in Davis to the preponderance standard that federal courts have “generally†applied under FRE 806(b)(6) and that state courts “tend to follow†a sign that the Court itself endorses this standard? Not all state courts have applied this standard. New York courts, for example, consistently have required clear and convincing evidence of forfeiture. Also, what should the proper scope of forfeiture be? May the defendant still attempt to impeach the non-testifying declarant with inconsistent statements, convictions, bad acts, and the like? As Davis works its way through the many domestic violence cases pending in trial courts around the country, hopefully it simultaneously will prompt some needed development of constitutional forfeiture doctrine.
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