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In domestic violence cases, prosecutors seek a way around the Sixth Amendment
A recent op-ed in the New York Times stated that domestic violence victims “recant their testimony as much as 70 percent of the time, according to some estimates.” Some do so because they fear retaliation, or under family pressure, or because they rely on the person for income. As advocates point out, a few of them have suffered more violence after recanting and after the case is dropped. [Rachel Louise Snyder / New York Times]
In the op-ed, Rachel Louise Snyder, a journalist and author, lamented the fact that after complainants recant, authorities often drop cases because they assume that they do not have enough evidence to proceed without the complainant’s testimony. “In the 1980s and ’90s, however, a group of dedicated prosecutors began to believe recanting didn’t have to be an impediment to legal action; after all, murder trials happened every day without victim cooperation,” Snyder writes. “They spent years building a movement for something called evidence-based prosecution, which kept a victim from having to take the stand.” Snyder writes admiringly about a prosecutor in San Diego who, in the 1980s, began “ordering 911 tapes in all domestic violence cases. He asked the police [for any] possible shred of evidence that existed.” He then tried 21 domestic violence misdemeanors without complainant testimony. In 17 of them, he won his convictions. [Rachel Louise Snyder / New York Times]
“Then, in the early 2000s, a Supreme Court case called Crawford v. Washington came along, and years of progress were placed in peril,” writes Snyder. In Crawford, the Court ruled that the “Sixth Amendment’s confrontation clause barred admission of any testimonial statements made out of court, unless the witness who made the statement testified and was subject to cross-examination.” This meant prosecutors could no longer use the statements of victims or others who would not appear in court, though certain statements deemed nontestimonial (some 911 calls, body camera footage) are still admissible. [Rachel Louise Snyder / New York Times] In other words, with limited exceptions, defendants must be allowed to confront their accusers in court. Prosecutors had been winning convictions, often relying on previous statements of witnesses that did not want to testify. That was no longer legal.
These advocates and prosecutors saw the Crawford ruling as an impediment to getting their convictions, but, according to Somil Trivedi, senior staff attorney at the ACLU, “to say that a certain constitutional amendment is a technicality or something that stands in the way of justice is just not right.” The “ethos behind evidence-based prosecution, generally, is that confronting witnesses is a bad thing and unravels what would otherwise be a perfectly sound prosecution and therefore if you support it then you are against DV victims and against justice,” he told The Daily Appeal by phone. “The problem there is that the confrontation clause of the Sixth Amendment is supremely important.” The state can “much more easily trump up charges against you and wrongfully convict you if you are not allowed to confront the witnesses against you.” Even the moniker, evidence-based prosecutions, is “a bit loaded. … All prosecutions are and ought to be evidence-based, and all defenses are evidence-based,” including the right to confront witnesses. Trivedi suggested an alternative name: the anti-confrontation movement.
Trivedi notes that it is easy to see these problems in the context of criminal cases, but plenty of other systems with similarly severe stakes deprive people of the right to confront witnesses against them, such as the child welfare system and housing court. “It’s a nationwide problem about how we administer justice,” he said. Trivedi notes that in many of these systems that ensnare less-privileged people there’s “an almost artificial distinction between this part of the law and others, in terms of protections to the defendant. I worry that people see the criminal law as a beacon for what we should do in other areas of the law, so the worse we treat defendants in the criminal sphere, the worse it will be for others in other areas.”
One particularly shocking example of prosecutors using noncriminal systems to evade the due process requirements of criminal trials is civil commitment. This week, Vox’s Today, Explained podcast featured the story of Terry Allen, an Illinois man who was arrested for a sex-related offense at the age of 23, and instead of going through the criminal system, was civilly committed as a “sexually dangerous person.” He is now 60, and his “treatment” over the last 37 years has been in a state prison. He has no release date. He has effectively been given a life sentence without a trial, without being able to confront witnesses against him. [Max Green / Today, Explained]
Sheryl Essenburg, a retired prosecutor in Illinois, helped popularize the use of civil commitments. She stumbled upon it once when she wanted to prosecute a person for a crime but did not want the complainant to testify, so a colleague directed her to the civil commitment law. “It didn’t seem like the traditional way of prosecuting would probably work in this case. So I thought well here’s, here’s an alternative,” she said. Essenburg became a “crusader” for the law, driving across the state giving trainings to other prosecutors. She even wrote a manual in 2011 called “A Prosecutor’s Guide to the Illinois Sexually Dangerous Persons Act.” “She really worked to help prosecutors across the state understand that this was a tool that they had in cases where it might be more difficult to get a criminal conviction,” said Max Green, a reporter. “And when we spoke with Sheryl Essenburg she very openly acknowledged the fact that using this law can actually result in a longer prison sentence than a criminal prosecution.” She justifies it by saying, “If there is a legal way that I can prevent a person who is in my mind pretty clearly going to commit that next offense … then I’m going to do that.” [Max Green / Today, Explained]
There is one point on which this writer agrees with the “evidence-based” prosecution movement. Snyder quotes one prosecutor in her op-ed saying, “The criminal justice system isn’t set up for uncooperative witnesses.” It isn’t. It also isn’t set up for domestic violence cases, the vast majority of which are far better suited to nonadversarial, restorative processes, or mediation, if and when all parties are on board.
In this writer’s experience as a public defender, domestic violence victims often stopped cooperating with prosecutors not out of fear, but because they didn’t want what the system had to offer. For example, in all cases, no matter how small, an order of protection was put in place, preventing the defendant from having any contact whatsoever with the complainant. These protective orders could not stop a person from finding the complainant and hurting him or her. But they did prevent the one thing that many of the complainants actually wanted: an apology. Or honest communication. And even in those cases where the complainants did not seek to reconcile with the defendant, the majority of them still did not want to see them go through the criminal process, get a record, and do jail time. They simply wanted to part ways, not to deprive their children of a parent, or the defendant of a job. The problem of uncooperative witnesses is real, but the solution is not to throw constitutional protections out the window.
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