Document Type


Publication Date

Summer 2005


Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set of political and institutional forces, it is necessary to appreciate those influences to fully understand trial courts' interpretation of the scope and import of the Crawford decision.

As a public defender in the Bronx, I witnessed, first hand, the excitement and confusion that followed the Crawford decision at the trial level. In the immediate aftermath of Crawford, e-mails flew about our office proclaiming the death knell of "evidence based prosecutions," the practice of prosecuting domestic violence cases without the cooperation of the complaining witness. In court, defense attorneys eagerly pushed broad interpretations of the new decision, arguing that the district attorney could no longer rely solely on 911 tapes and police testimony to prosecute defendants in domestic violence cases. In this context, a seemingly typical domestic assault case, People v. Moscat, was winding its way through the court system. Through the lens of Moscat, this Essay seeks to identify how trial courts' narrow readings of Crawford have been influenced by the forces that shape the way domestic violence cases are prosecuted. By recognizing how the dynamics of domestic-violence prosecutions mold judicial reasoning, one can better understand and evaluate trial courts' post-Crawford Sixth Amendment decisions. In turn, post-Crawford jurisprudence reveals a great deal about the environment in which domestic violence cases are tried, the presumptions that shape judicial opinions in the domestic violence context, and the obstacles many defendants face when they are accused of committing such crimes.



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