Prior to the Supreme Court’s 2004 decision in case of Crawford v. Washington, a prosecutor could pursue a domestic violence case and introduce the prior accusatory testimonial statement of the victim even where the victim refused to appear at trial, declined to testify at trial, retracted a prior statement made to police, or claimed lack of memory as to the events described in her prior statement if: 1) the victim was unavailable, and 2) the statement bore ‘adequate indicia of reliability’ as indicated by falling within a ‘firmly rooted hearsay exception’, or satisfied ‘particularized guarantees of trustworthiness’. Ohio v. Roberts 441 U.S. 56. The Supreme Court in Crawford overruled Roberts by ruling that admission of a prior victim statement complied with the Confrontation Clause only if: 1) the victim was unavailable, and 2) the defendant had a ‘prior opportunity to cross-examine.’ Critics of Crawford claimed that it opened up an ‘open season’ on domestic violence and other victims by giving the defendant spouse an irresistible motive to escape justice by intimidating, threatening, or even killing the victim prior to being subject to cross-examination. Prosecutor’s attempts to protect witnesses by relying on FRE 804(6) which purported to provide for admission of prior victim’s statements where defendant threatened or killed a witness proved illusory, not least because it required the prosecutor to prove separately that defendant caused the death or unavailability of the witness. As an alternative and more effective way of eliminating the motive to threaten or kill innocent witnesses, submitted herein is the case for providing to defendant a prompt opportunity to cross-examine a witness immediately upon arrest at a confrontation hearing conducted either at the police station or at arraignment, and providing court appointed counsel to conduct such cross-examination if defendant otherwise does not have immediate access to counsel. Further submitted is that such a procedure would both comply with the Crawford requirement of a ‘prior opportunity to cross-examine’ while also removing the incentive of a defendant to kill or threaten a witness as a means of evading justice.
Available at: http://works.bepress.com/robert_hardaway/7/