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24• Criminal Justice • American Bar Association • Summer 2005 • Volume 20 • Number 2“Domestic Violence, Child Abuse, and Trustworthiness Exceptions After Crawford”by Myrna S. Raeder, published in Criminal Justice 20, No. 2, Summer 2005 © 2005 by theAmerican Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any meansor stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
C 
rawford 
’sfallout is being felt throughout the crim-inal justice system, but it has had a unique impacton domestic violence, child abuse, and elder abusecases where absent victims and witnesses had becomecommonplace. For 25 years,
Ohio v. Roberts
, 448 U.S. 56(1980), permitted the admission of trustworthy hearsay of unavailable declarants. Under
 Roberts
, ConfrontationClause challenges could be won simply by showing thatthe out-of-court statement of the absent witness fit a“firmly rooted” hearsay exception or demonstrated “par-ticularized guarantees of trustworthiness.” The opportunityfor previous cross-examination did not matter.As a result, prosecutors in domestic violence casesrealized that they did not need to rely on the testimony of victims, typically female, many who refused to cooperateand often recanted their allegations at trial. Instead, theydeveloped an approach known somewhat misleadingly as“evidence-based” or “victimless” prosecutions. In suchcases, the government would introduce the woman’s criesfor help made on 911 calls, or police officers would testifyto her excited utterances at the scene and show pictures of her bruises, while health care providers would also testifyto her statements as well as introduce her medical records.California and Oregon even adopted specific domesticviolence hearsay exceptions to permit other trustworthystatements, and a bare majority of states turned to theirversion of Federal Rule of Evidence 807, known informal-ly as the residual or catchall exception, to admit trustwor-thy hearsay ranging from diaries to previous threats. Thisevidence was presented together with prior acts of domes-tic violence offered under state versions of Rule 404(b) ordomestic violence exceptions. On occasion, an expert onBattered Woman’s Syndrome would explain why thewoman stayed with the batterer or had recanted heraccusatory statements, thereby rehabilitating the credibili-ty of the victim who had testified or whose hearsay hadbeen impeached by her prior inconsistent statements.Legislators also became emboldened by
 Roberts
toenact specific child hearsay elder abuse exceptions basedon trustworthiness to increase the likelihood of convic-tions in cases where witnesses could not testify due toincompetency or trauma. As with domestic violence com-plainants, even when they testified, they were subject tostinging credibility attacks, based on their recantations orother inconsistencies in their testimony, their faulty mem-ories, and/or charges that they were manipulated by theirfamilies, caregivers, or law enforcement. In addition, fed-eral and state general catchall exceptions covered all man-ner of their ad hoc statements considered trustworthy.Although the rationale for adopting such exceptionshas been undermined by
Crawford 
, because very few arewritten in such a way as to render them unconstitutionalin all circumstances, their application in a particular casewill depend on whether the specific hearsay is “testimoni-al,” and, if so, whether or not the declarant testifies at orprior to trial, unless the right to confrontation has beenforfeited. Even if 
Crawford 
is not violated, the questionremains whether any reliability test applies before thehearsay can be admitted. Most cases appear to apply the
 Roberts
progeny to nontestimonial hearsay. (
See, e.g.
,
United States v. McClain
, 377 F.3d 219 (2d Cir. 2004);
 Evans v. Luebbers
, 371 F.3d 438 (8th Cir. 2004);
 Hortonv. Allen
, 370 F.3d 75 (1st Cir. 2004);
State v. Rivera
, 268Conn. 351, 844 A.2d 191 (2004);
 Demons v. State
, 277Ga. 724, 595 S.E.2d 76 (2004);
State v. Vaught 
, 268 Neb.316, 682 N.W.2d 284 (2004).) Thus, catchalls and otherad hoc exceptions are scrutinized for particularized indiciaof trustworthiness. (
See
,
e.g.
,
People v. Garrison
,
2
004WL 2278287 (Colo. App. 2004).)Pre-
Crawford 
, particularly in domestic violence cases,the witness lite/hearsay heavy approach appeared to resultin a discernable increase in convictions, helped along bythe creation of domestic violence courts in urban areas towhich prosecutors were specifically assigned. (
See gener-ally
Phyllis Goldfarb,
 Intimacy and Injury: How Law HasChanged for Battered Women
,
in
T
HE
H
ANDBOOKOF
W
OMEN
, P
SYCHOLOGY
,
ANDTHE
L
AW
(Andrea Barnes, ed.2005).) In contrast, post-
Crawford,
prosecutors have hadto return to square one to determine whether they can winan individual case if the witness does not testify, as well
Domestic Violence, Child Abuse, andTrustworthiness Exceptions After
Crawford 
by Myrna S. Raeder
 
 Number 2 • Volume 20 • Summer 2005 • American Bar Association • Natural Resources & Environment • 25“Domestic Violence, Child Abuse, and Trustworthiness Exceptions After Crawford”by Myrna S. Raeder, published in Criminal Justice 20, No. 2, Summer 2005 © 2005 by theAmerican Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any meansor stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
as how to combat the inevitable credibility attack if shedoes. In the wake of 
Crawford 
, a number of cases werereversed where testimonial hearsay had been introduced.News reports indicated nearly 50 percent of domestic vio-lence cases were being dropped in some jurisdictions.Coupled with estimates that up to 80 percent of victimsare noncooperative, it is no surprise that a recent survey of prosecutors found that they are having significant difficul-ties winning domestic violence cases after
Crawford 
. (
Seegenerally
Tom Lininger,
Prosecuting Batterers after 
Crawford, 91 V
A
. L. R
EV
.102 (May 2005).)Undoubtedly, the nascent movement to increase elderabuse prosecution has also been impacted. For example, aCalifornia exception admitting a videotaped hearsay state-ment made by an unavailable elderly or dependent adult toa law enforcement official was held unconstitutional in
People v. Pirwani
, 14 Cal. Rptr. 3d 673 (Cal. App. 6 Dist.2004). Delaware, Oregon, and Illinois have also enactedelder abuse exceptions, but they apply more broadly thanCalifornia’s, so do not appear to be unconstitutional in allcircumstances. However, unavailability due to death orother inability to testify is a significant issue for this popu-lation. Although a number of child abuse convictions and afew child hearsay exceptions have fallen by the waysideafter
Crawford 
, the growing consensus is that
Crawford 
will not dramatically lower the number of such cases takento trial because the reality is that few prosecutors are will-ing to try such cases in the absence of the child. In otherwords, in many cases the testimonial hearsay is introducedin addition to, not in lieu of, the child’s testimony.
 What does
Crawford 
require?
Crawford 
was the judicial equivalent of a double wham-my. First, it destroyed the existing
 Roberts
framework foranalyzing Confrontation Clause challenges, and, second, itfailed to provide explicit instructions as to what to substi-tute in its place
.
The
Crawford 
standard is deceptively sim-ple: Introduction of an out-of-court “testimonial” statementmade by a person who does not testify at trial violates thedefendant’s right to confrontation in the absence of a prioropportunity for cross-examination, unless the defendant’sconduct has forfeited this claim. However, the Court pro-vided no clear definition as to what is “testimonial,” leftopen whether nontestimonial hearsay is still governed by
 Roberts
or can be freely introduced, and did not developthe doctrine of forfeiture. Undoubtedly, the vagueness wasrequired in order to obtain a majority. Justice Scalia’s opin-ion promises something for everyone, with examples thatcan be cited in favor of a narrow or broad interpretation of testimonial depending on the litigant’s perspective.Prosecutors can argue that testimonial statementsshould be viewed narrowly to affect the fewest cases bypointing to the following formulations noted by JusticeScalia: 1) “
ex parte
in-court testimony or its functionalequivalent—that is, material such as affidavits, custodialexaminations, prior testimony that the defendant wasunable to cross-examine, or similar pretrial statementsthat declarants would reasonably expect to be used pros-ecutorially,” 541 U.S. at 51, quoting Brief for Petitioner23; and 2) “extrajudicial statements . . . contained in for-malized testimonial materials, such as affidavits, deposi-tions, prior testimony, or confessions,” 541 U.S. at 52,citing
White v. Illinois
, 502 U.S. 346, 365 (1992)(Thomas, J., joined by Scalia, J., concurring in part andconcurring in judgment).Conversely, defense counsel can cite the followingbroad definition also mentioned by Justice Scalia, whichwould affect the greatest number of cases: “statementsthat were made under circumstances which would lead anobjective witness reasonably to believe that the statementwould be available for use at a later trial.” (541 U.S. at 52,quoting Brief for National Association of CriminalDefense Lawyers et al. as
 Amici Curiae
.) Justice Scaliaalso recognized that “[i]nvolvement of government offi-cers in the production of testimonial evidence presents thesame risk, whether the officers are police or justices of thepeace. In sum, even if the Sixth Amendment is not solelyconcerned with testimonial hearsay, that is its primaryobject, and interrogations by law enforcement officers fallsquarely within that class.” (
 Id 
. at 53.) Moreover,
Crawford 
indicates that interrogation was being used in itscolloquial sense, and that while various definitions of interrogation might be offered, the declarant’s “recordedstatement, knowingly given in response to structuredpolice questioning, qualifies under any conceivable defini-tion.” (
 Id 
., n.4, 53.) Similarly, “[s]tatements taken bypolice officers in the course of interrogations are also tes-timonial under even a narrow standard.” (
 Id 
. at 52.)Even under the narrowest definition, some statementsmade to private individuals are likely to be consideredtestimonial. The statement would be testimonial, forexample, if a person is acting as an agent or proxy for thegovernment, which might occur in mandatory reportingcontexts in child abuse or domestic violence cases, orwhere a child welfare agency joins with the prosecutionto investigate child abuse cases. Some may view
 Idaho v.
Myrna S. Raeder
is a law professor at Southwestern UniversitySchool of Law and a member of the editorial board of 
CriminalJustice
magazine. Her forthcoming article in
Brooklyn Law Re-view
 , entitled “Remember the Ladies and the Children Too:
Crawford
’s Impact on Domestic Violence and Child Abuse Cas-es,” discusses these topics in greater detail and suggests restruc-turing our current approach to domestic violence to better use lim-ited criminal justice resources to identify and prosecute those de- fendants who are most likely to be dangerous.
 
26• Criminal Justice • American Bar Association • Summer 2005 • Volume 20 • Number 2“Domestic Violence, Child Abuse, and Trustworthiness Exceptions After Crawford”by Myrna S. Raeder, published in Criminal Justice 20, No. 2, Summer 2005 © 2005 by theAmerican Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any meansor stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Wright 
, 497 U.S. 805, 820-24 (1990), as such a case. (
See
Margaret Berger,
The Deconstitutionalization of theConfrontation Clause: A Proposal for a Prosecutorial Restraint Model,
76 M
INN
. L. R
EV
.557, 603-04 (1992).)In
Wright 
, a doctor who was selected by law enforce-ment, arguably to develop testimony in the criminal case,questioned a child who was believed to be sexuallyabused. The child did not testify, and her hearsay wasadmitted under a state catchall exception. ProfessorBerger has pointed out that the solicitor general admittedthat the questioning in
Wright 
was by an agent of theprosecution in his amicus brief in
White v. Illinois
. (Brief for the United States as Amicus Curiae SupportingRespondent at 28 n.18.)This interpretation of 
Wright 
will likely be argued byprosecutors for the proposition that a
 Roberts
reliabilityanalysis is not required for nontestimonial hearsay. Inother words, because
Wright 
’s holding, reversing thedefendant’s conviction as a violation of the ConfrontationClause, was not specifically overruled by
Crawford 
, thedefense can point to
Wright 
as a case where the introduc-tion of nontestimonial hearsay (the child’s statement to adoctor) resulted in a reversal. Because
Wright 
’sholding isstill valid, the decision must have rested on a finding of unreliability under
 Roberts
. However, if 
Wright 
is rechar-acterized as involving testimonial hearsay, the rationalefor its holding that hearsay introduced under ad hocexceptions must be subject to a separate reliability reviewcould be rejected without having to overrule the case.While such an approach would expand the range of testi-monial statements, particularly in child hearsay cases, itwould leave the prosecution free to argue that no reliabili-ty review is required for any nontestimonial hearsay,regardless of whether such hearsay is admitted under anad hoc or firmly rooted exception.I have long argued that all nontraditional hearsayshould be subject to a reliability check, regardless of which exception it was admitted under. In other words,expansive interpretations of firmly rooted exceptions, suchas excited utterances, should not obtain an automatic pass,even under a
 Roberts
analysis. (
See
White
’s Effect on the Right to Confront One’s Accuser 
, 7 C
RIM
. J
UST
.2 (Winter,1993);
 Hot Topics in Confrontation Clause Cases and Creating a More Workable Confrontation ClauseFramework Without Starting Over 
,21 Q
UINNIPIAC
L. R
EV
.1013 (2003).) However, like Professor Taslitz, I agree that,post-
Crawford 
,such an approach appears to be groundedin due process concerns, rather than the ConfrontationClause. (See Andrew Taslitz article on page 38.)
Post-
Crawford 
issues in domestic violence cases
Domestic violence cases will not fade away. Theirnumbers are simply too large to be ignored, even recog-nizing that substantial decreases in such violence hasoccurred in the recent past. Nearly 590,000 nonfatal actsof violence were estimated to have been committedagainst women in 2001, and approximately 1,250 womenwere killed by an intimate partner in 2000. (
See
CallieMarie Rennison, “Intimate Partner Violence, 1993-2001”(BJS Crime Data brief, February 2003).) According to the2000 National Violence Against Women Survey, 25 per-cent of women and 8 percent of men are subject to vio-lence by an intimate during their lifetimes. Thus, the post-
Crawford 
challenge is how long it will take courts todevelop a framework for analyzing the testimonial statusof the most frequently used types of hearsay to give somepredictability to lawyers trying these types of cases in theabsence of the complainant. It is disappointing that theSupreme Court has not yet taken a case in which it couldclarify these issues. One year after
Crawford 
uniformity isnowhere to be found, although some trends are emerging.
Excited utterances
The bulk of hearsay in domestic violence cases isoffered as excited utterances. Several general categoriesexist and have been treated somewhat differently: 1) state-ments made in person to police officers arriving at thescene; 2) statements made in person to police officers as aresult of questioning either at the scene or later; 3) state-ments made in 911 calls; and 4) statements made to pri-vate individuals.
Statements to police officers
Some cases have favored automatic categorization of excited utterances as nontestimonial, arguing that it is acontradiction to consider excited utterances to be testimo-nial. This approach, which ignores the context in whichstatement was made, was first suggested in
People v. Moscat 
, 3 Misc. 3d 739, 777 N.Y.S.2d 875 (2004), anearly post-
Crawford 
911 case that has become influential.
 Hammon v. State
, 809 N.E.2d 945, 952-53 (Ind. Ct. App.2004), clearly expresses this reasoning:[T]he very concept of an “excited utterance” is suchthat it is difficult to perceive how such a statementcould ever be “testimonial.” The underlying rationaleof the excited utterance exception is that such a dec-laration from one who has recently suffered an over-powering experience is likely to be truthful. To beadmissible, an exited utterance must be unrehearsedand made while still under the stress of excitementfrom the starting event. The heart of the inquiry iswhether the declarants had the time for reflection anddeliberation. An unrehearsed statement made withouttime for reflection or deliberation, as required to be
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