For domestic violence victims, filing charges against their abusers takes incredible courage -- but actually showing up in court to be cross-examined can be unbearable. So an increasing number of states have begun to allow recordings of 911 calls or transcripts of police interviews with victims to be used as evidence in court.
But, as the New York Times reports today, Supreme Court justices are now reviewing whether the use of such "testimonial" evidence, made out of court, violates defendants' constitutional right to face their accusers.
First, a little background: The court ruled two years ago that a woman's tape-recorded account of a stabbing could not be admitted as evidence. But it stopped short of defining what makes a "testimonial" statement. So on Monday, the court returned to that task by hearing two cases. In one, the Washington Supreme Court had ruled that a 911 call from a woman who said her boyfriend was beating her was not a testimonial but a request for "help to be rescued from peril." In the second, the Indiana Supreme Court had allowed a wife's statement to a police officer to be used as evidence. The victims in both cases failed to appear in court.
Thankfully, Justice Ruth Bader Ginsburg brought some much needed perspective to the proceedings. After hearing an argument from Jeffrey Fisher, who represented the defendant in the Washington case, that a 911 call was a testimonial because the victim "knowingly told a government agent associated with law enforcement that someone had committed a crime," she objected.
"But the 911 call was 'not just a call.' It was also 'a cry for help,'" the Times' Linda Greenhouse quotes Justice Ginsburg as saying. "Was it not a 'practical reality that many women in this situation are scared to death? ... Your neat legal categories don't conform to real lives.'"
No, they don't. Legal tit-for-tat aside, domestic violence victims desperately need special protection. And if the following comments are any indication, they don't seem likely to get it. Justice Antonin Scalia said that the "confrontation clause" -- which gives a criminal defendant the right "to be confronted with the witnesses against him" -- should be interpreted literally. Greenhouse also quotes Richard D. Friedman, who represented the defendant in the Indiana case, as saying that "there is no domestic-violence exception for confrontation rights."
Friedman also argued that a strict interpretation of the confrontation clause could give prosecutors "an incentive to protect victims of domestic violence and make them feel safe enough to testify." But Justice Ginsberg offered another sobering reminder: "I don't know why that necessarily follows. It wasn't so long ago that police didn't bother with these cases."
This is a high-stakes decision. The Times article cites one study that says as many as 90 percent of domestic violence victims fail to cooperate with the prosecution out of fear or loyalty to their abusive partners. And Justice Ginsberg's memory is sharp; even with 911 calls and police transcripts, the courts still have few tools to prosecute these cases. Why take more of them away?