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Orenstein on the Confrontation Clause

By Lawrence Solum

Aviva Orenstein (Indiana University School of Law - Bloomington) has posted Sex, Threats, and Absent Victims: The Lessons of Regina v. Bedingfield for Modern Confrontation and Domestic Violence Cases on SSRN. Here is the abstract:

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully.

Although Justice Scalia?s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the murder victim. The analysis of the res gestae hearsay exception, which was central to excluding the victim?s statement in Bedingfield, focused on the timing of her statement, her intent in making it, and whether an ongoing emergency existed when the declaration was made. Justice Scalia?s rigid, formalistic approach to testimonial statements in Davis v. Washington, another in the line of new confrontation cases, is analogous and ultimately as confusing and unworkable as Bedingfield?s res gestae analysis.

Although Bedingfield arose in 1879, its facts, replete with verbal abuse, intoxication, unheeded pleas for police protection, and ultimately, murder when the victim tried to break off the relationship, resonate with modern experiences of domestic violence. Both the Bedingfield case and Justice Scalia?s confrontation jurisprudence fail to account for the practical realities of domestic violence cases and ignore the voices of victims who cannot or will not testify on their own behalf. The facts of Bedingfield, which present a serious question whether the victim?s statement was ever uttered, demonstrate another flaw in Justice Scalia?s new approach. In addition to being too rigid in rejecting unconfronted testimonial statements, the new confrontation doctrine it is also too lax regarding nontestimonial statements, which now receive no constitutional protection at all.

Full post as published by Legal Theory Blog on March 03, 2010 (boomark / email).