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Practice Notes
Can I Get a Witness?1
A Primer for Analyzing Non-Participating Victim Statements in Military Domestic Violence Cases
By Major Greta L. Ellis
A “Confrontation”
You are drafting a prosecution memorandum for a domestic violence2 case. The subject is Major (MAJ) Roger Smith, and the alleged victim is his wife, Sherry. Some weeks back, after Sherry returned home from an evening out with friends, the neighbors heard yelling and furniture crashing at the Smith household. Sherry called 911, crying. She frantically asked the dispatcher for help, stating that her husband, Roger, just punched her several times in the head and ribs. Sherry had managed to escape momentarily. When police responded, they immediately isolated MAJ Smith in a separate room to ensure Sherry’s safety. Police then asked Sherry several questions about the assault, and she responded with more details than she told the 911 dispatcher. When questioned, MAJ Smith requested an attorney. Police transported Sherry to the emergency room, where she described the source of her injuries to a doctor before receiving treatment. A day later, Sherry told the neighbors that Roger “beat her up” the day before, and that she was afraid he would do it again.
You plan to recommend court-martialing MAJ Smith under Article 128b, Uniform Code of Military Justice.3 With Sherry testifying, you are certain you could prove the charge beyond a reasonable doubt. What is more, you believe justice requires trial. Domestic violence results in serious emotional and physical injury to victims, which can worsen in degree if left unchecked.4 Confinement resulting from a guilty verdict will protect the victim, punish MAJ Smith, and deter him from future abuse.5
Then the special victims’ counsel (SVC)6 calls: Sherry no longer wishes to participate at trial. Can you use Sherry’s statements without her on the stand? Should you still recommend trial by court-martial?
To make a well-informed recommendation, you must analyze the admissibility of each statement under the law as well as ensure you have witnesses and evidence available to prove the case at trial. The first step is to contextualize and analyze each statement under the Confrontation Clause, as presented in the following section and Appendix A, and then under hearsay exceptions, discussed below. After finishing the legal analysis, you must address important practical considerations this practice note poses, such as securing the trial presence of people who witnessed and can testify to Sherry’s statements, collecting evidence in corroboration, and methodically tracking all evidence to prove each element of the offense. This practice note then uses the fictional case of United States v. MAJ Smith as an example to apply the rules and practical considerations.
Confrontation Clause: Applicable Legal Rules
The Confrontation Clause affords criminal defendants, including Service members,7 the right to confront witnesses whose statements are used against them at trial.8 Confrontation Clause analysis is the first step in determining admissibility of a non-present witness’s oral or written statements.9 The “principal evil” avoided through the Confrontation Clause is entry of inculpatory evidence without giving the accused adequate opportunity to test its veracity by examining the witness who asserted it.10 Historically, unfettered entry of such evidence has led to unjust results.11
Supreme Court Interpretation of the Confrontation Clause
Before 2004, Confrontation Clause analysis fell under a test established in Ohio v. Roberts:12 if the government sought to enter an absent witness’s statement at trial, it had to show that the witness was “unavailable”13 and that the statement bore “adequate indicia of reliability.”14 Under Roberts, cross-examination of the witness’s statement at a prior proceeding was an indicator of reliability, but it was not necessary to satisfy the test.15
In 2004, the Supreme Court in Crawford v. Washington16 reexamined the Roberts test, finding it to be inherently “amorphous, if not entirely subjective.”17 The Court listed a multitude of wildly inconsistent results nationwide due to courts’ varying interpretations of what constituted “adequate indicia of reliability.”18 The divergence of analysis and unpredictable results were incongruent with the Confrontation Clause’s historical mandate.19
The Crawford opinion changed the landscape of Confrontation Clause analysis, distinguishing between “testimonial” and “nontestimonial” statements of absent witnesses.20 Testimonial statements are those created in anticipation of litigation, for later introduction at trial.21 The ultimate significance of the testimonial or nontestimonial determination is that it governs which test is used for the statement’s admissibility under the Confrontation Clause.22 Crawford created a new, high bar for admissibility of testimonial statements: they may be admitted at trial only if “the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine” the declarant.23 Holding testimonial evidence to the “crucible” of cross-examination is imperative, the Court reasoned, because it guards the opposing party’s right to challenge inculpatory evidence proffered at trial.24
Determining Whether a Statement Is Testimonial
The Court in Crawford declined to offer a “comprehensive” definition of testimonial statements, but it did pose some examples.25 “At a minimum,” the Court stated, testimonial statements include “ex parte in-court testimony or its functional equivalent,” such as affidavits, depositions, prior testimony, confessions, and custodial examinations.26 The Court noted that testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.”27 Crawford found that “police interrogations” are testimonial and merit their own framework due to their distinct purpose in many instances: to develop evidence for later use at trial.28 Most broadly, the Court deemed as testimonial “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”29
The breadth of Crawford’s examples left several unresolved issues. It was unclear what particular circumstances constituted police “interrogation” sufficient to make responsive statements testimonial. Additionally, Crawford did not specify how to analyze statements to non-law-enforcement personnel, such as friends, neighbors, or doctors. Using Supreme Court and military case law, the following section explores subsequent guidance.
Statements to Law Enforcement
In 2006, the Supreme Court further addressed whether certain police questioning constituted “interrogations,”30 making the statements given in response “testimonial” for purposes of Confrontation Clause analysis. Davis v. Washington31 involved a 911 call related to an immediate emergency, while Hammon v. Indiana32 involved statements made during a crime scene investigation. In its ruling addressing both cases, the Supreme Court articulated the following general rule:
[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.33
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Domestic violence results in serious emotional and physical injury to victims, which can worsen in degree if left unchecked. (Credit: Iweta0077 - stock.adobe.com)
911 Calls and Responses to Emergency
Many statements arising from domestic violence are “spontaneous” or “heat-of-the-moment,” occurring during or immediately after the incident itself, with danger still present. Davis v. Washington is the quintessential 911 case, presenting a fact pattern that does not qualify as “interrogation” due to the emergency response nature of the questioning.34
In Davis, the victim dialed 911 and then hung up.35 The 911 operator called back and asked the victim what was going on.36 The victim replied that the accused was “jumpin’ on me again” and “usin’ his fists.”37 The operator gathered additional information for emergency response, including the accused’s full name and birthday, and the context of the assault.38 Only four minutes after the 911 call, police arrived to find the victim “shaken,” with fresh, visible injuries, and collecting belongings so she and her children could flee their home.39
The victim declined participation at trial.40 The government’s witnesses thus were limited to the two officers who responded to the 911 call, neither of whom could testify to contemporaneous knowledge of the injury’s source.41 The 911 call was the only evidence establishing cause of injury.42 The Supreme Court held that the victim’s statements to the 911 emergency dispatcher were not testimonial due to their nature and purpose of requesting help for an ongoing emergency.43 Statements made during an emergency response exchange do not implicate the same constitutional concerns as statements made in preparation for trial.44
This rationale extends beyond 911 calls to officers responding at emergency scenes. In Michigan v. Bryant,45 police responded to the victim of a shooting, who gave them details of the incident while bleeding from a gunshot wound to his abdomen.46 The victim was in “considerable pain,” having difficulty “breathing and talking,” and interspersing answers to police questioning with his own questions about when medical personnel would arrive.47 The victim died before trial, leaving the government to prosecute its case without him.48
Holding that the victim’s responses to police questioning were nontestimonial, the Court noted that the police did not know whether the threat was limited to one victim, or whether additional people were at risk—especially given the perpetrator’s use of a firearm.49 The Court also accounted for the victim’s severe injuries and reflexive responses, noting that it “is important to the primary purpose inquiry to the extent that it sheds light on the victim’s ability to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would be a testimonial one.”50 Finally, the circumstances “lacked any formality.”51 All indicia pointed to emergency response as the questioning’s purpose, not gathering evidence.52
Davis and Bryant support the proposition that an officer’s initial inquiries may not lead to “testimonial” responses if the purpose of the inquiry is to enable police assistance to meet an ongoing emergency, and police ask questions informally to “assess the situation, the threat to their own safety, and to possible danger to the potential victim.”53 This analysis is objective, based on surrounding circumstances as well as the nature of the parties’ statements and actions, rather than a subjective inquiry into officer intent.54 Case-dependent details—such as a concern for additional victims, or type of weapon involved, as well as a lack of formality in the questioning—are important factors that would be involved in assessing the admissibility of statements.55 Nontestimonial interactions are more “fluid” and “confused” than structured police interrogations.56
Interrogation by Law Enforcement
Police questioning in response to a domestic violence call may be considered “interrogation” if it is after the violence has subsided; the victim is relatively safe; the victim and accused are separated; the interview is structured; and the totality of the circumstances point to the purpose of questioning as gathering evidence for a future trial.57 In Hammon, police responded to a “reported domestic disturbance” to find the victim alone on her porch, frightened but in no apparent immediate danger.58 When officers entered the home, they saw a broken heating unit emitting flames, surrounded by shattered glass.59 After the accused denied any physical altercation, officers separated the accused and the victim into different rooms for questioning, despite “several attempts [by the accused] to participate in [the victim’s] conversation with the police.”60 The victim told the officer who questioned her that the altercation became physical when the accused broke several pieces of furniture and appliances, threw her down into the shattered glass, and punched her in the chest twice.61 After oral questioning, the police officer requested the victim draft and sign an affidavit for the purpose of “establish[ing] events that . . . occurred previously.”62
Although subpoenaed, the victim in Hammon did not appear at trial.63 The Supreme Court held the victim’s statements were testimonial because they were in response to a “police interrogation” that took place “some time after the events described were over,” and after they had “actively separated” the victim from the defendant and removed her from danger.64 The Court noted police questioning resulted in deliberate recounting of potentially criminal past events, not just contemporaneous facts.65
Ultimately, whether an interaction is viewed as interrogation will depend upon the totality of the circumstances. Thus, trial counsel should determine the purpose of questioning by examining how and why the officers were called to the scene; whether the victim was in danger while the officers spoke with them; whether the accused was separated from the victim; the formality of questioning; the position and circumstances of other potential victims; and any other pertinent facts.66 The purpose of the interaction is a heavily weighed factor—as shown further in the next section, on statements to non-law enforcement personnel.
Statements to Non-Law Enforcement
Statements that are not clearly made in anticipation of trial or in response to law enforcement questioning must be analyzed under a totality of the circumstances approach, assessing whether the “statements . . . were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”67 In United States v. Rankin,68 the Court of Appeals for the Armed Forces (CAAF) developed a three-part test to assess whether these circumstances are present:
First, was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry? Second, did the “statement” involve more than a routine and objective cataloguing of unambiguous factual matters? Finally, was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial?69
This three-pronged test is not intended for rigid, bright-line application; each application is fact-specific.70 Subsequent military case law describes this test as a tool the court could consider when looking at the totality of the circumstances.71
Friends and Neighbors
When analyzing statements to friends and neighbors under the Confrontation Clause, courts have focused on the primary purpose of the victim’s statements.72 Statements are nontestimonial when the apparent purpose is to have a casual discussion or “neighborly conversation,” and there is no indication the victim has a “reasonable belief” their statements will be used later in prosecution of a crime.73 When analyzing statements to friends or neighbors, consider the surrounding circumstances of the statement, including the relationship between the witness and the victim; the demeanor of the victim; the age of the victim;74 and any other facts that may point to the purpose of the victim’s disclosure.
Medical Personnel
In determining whether statements to medical personnel are testimonial under the Rankin test, courts heavily weigh the purpose of the interaction with the medical professional. In United States v. Squire,75 CAAF held that a child victim’s statements to a doctor were nontestimonial where the child’s mother brought the child into the doctor under no direction from law enforcement; the doctor was an emergency room physician, not a forensic examiner; and the questions asked were “narrow in scope, fact-oriented, and limited to addressing [the victim’s] emergency medical conditions and its causes.”76 Though medical practitioners are mandatory reporters of sexual assault under many state laws, CAAF rejected the argument that this “general requirement” alone is sufficient to establish the medical practitioner was acting as an arm of law enforcement.77
United States v. Gardinierpresented facts leading the court to a different conclusion, holding a statement to a sexual assault forensic examiner to be testimonial.78 In its reasoning, the court heavily weighed the content and purpose of the exam questionnaire, noting that the form contained reference to a separate medical examination—which implied that the forensic examination was not, itself, a medical exam.79 The form asked what the victim discussed with law enforcement.80 Law enforcement arranged the forensic examination and paid for it, and the consent form for the examination explicitly disclosed it would be sent back to law enforcement—which it ultimately was.81 Finally, the sexual assault nurse examiner had been qualified as a government expert over fifty times.82 All of these facts weighed in the court’s determination that the victim’s statement was testimonial and, therefore, subject to the requirement of cross-examination.83
In all cases, victim statements must be analyzed on the facts specific to that case. Even if law enforcement or another member of the government team refers a victim to the doctor, this fact does not obligate the court to find the victim’s statements to the doctor testimonial.84 Likewise, not every self-referred victim’s statement to a doctor will be nontestimonial.85
Having established the statement’s category, the next step is to determine whether the statement is admissible. Testimonial statements are analyzed under Crawford, while, in the military, nontestimonial statements fall under the analysis discussed in the next section.
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Tests for Admissibility of Nontestimonial Statements
Nontestimonial statements are more casual and organic, clearly not prepared for trial purposes. It is not required that defense have a prior opportunity to cross-examine the nontestimonial statements of an unavailable witness. Under current military case law, the Roberts test governs admissibility for an unavailable witness’s nontestimonial statements under the Confrontation Clause: the statement must bear “adequate indicia of reliability,” which can be (1) “inferred” if the statement “falls within a firmly rooted hearsay exception,” or (2) established by showing “particularized guarantees of trustworthiness”86 under the totality of circumstances at the time the statement was made.87 Firmly rooted hearsay exceptions include most exceptions listed in Military Rule of Evidence (MRE) 803.88 “Residual hearsay”89 and “statements against interest”90 are not firmly rooted hearsay exceptions.91
The Roberts test for admissibility of nontestimonial hearsay has persisted in military courts,92 despite the Supreme Court case Whorton v. Bockting,93 which held that nontestimonial hearsay falls outside the ambit of the Confrontation Clause.94 Michigan v. Bryant reiterated this rule, commenting that reliability for nontestimonial statements is not a constitutional issue and is adequately tested through other rules of evidence, such as hearsay.95 If trial counsel seek to enter nontestimonial statements under residual hearsay or statements against interest, consider filing a motion to argue that nontestimonial hearsay does not implicate Confrontation Clause analysis under Whorton.96
Expanding on the discussion of hearsay, the next section presents common hearsay scenarios in domestic violence cases.
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Hearsay Analysis of Victim Statements
Having contemplated the Confrontation Clause, the Government must also analyze hearsay. Hearsay is an out-of-court statement entered for the truth of the matter asserted.97 Hearsay generally is inadmissible unless provided otherwise in a Federal statute or the MRE.98 To perform hearsay analysis, trial counsel first must determine why the statement is relevant and, given the statement’s purpose, whether it is hearsay.99
Statements not hearsay include prior inconsistent statements given “under penalty of perjury” at another proceeding or deposition, as well as prior consistent statements.100 Prior consistent statements are “offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground.”101 Even if the victim is participating, a wise prosecutor will prepare witnesses who can testify to the victim’s prior consistent statements if her credibility is questioned at trial. This often arises if defense insinuates through questions that the victim was coached by the prosecutor or has an improper motive to testify.102
If the statement is for substantive use and qualifies as hearsay, it must fit within an exception to the hearsay exclusionary rule.
Excited Utterance
The excited utterance exception allows “statements relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”103 The underlying rationale for this exception is that in the limited amount of time between the startling event and the declaration, the declarant is unable or unlikely to form a falsehood.104 There is a three-prong test for establishing the foundation: (1) “the statement must be spontaneous, excited[,] or impulsive rather than the product of reflection and deliberation”;105 (2) “the event [prompting the statement] must be startling”;106 and (3) “the declarant must be under the stress of excitement caused by the event.”107 This exception is likely to be used in 911 or other emergency response scenarios. Many of the facts elicited to establish that the situation was an ongoing emergency (such as the victim’s demeanor or injury) will be helpful in establishing the foundation for excited utterance.108
It is helpful to establish the timing of the startling event in relation to the statement, to show that the event prompted the excited reaction. More fundamentally, in questioning the witness to lay the foundation, trial counsel must ensure they establish that the victim was excited.109 Best-practice questions will elicit details such as the victim’s speech, demeanor, appearance, stance, gestures, voice level, crying, and other behavior.110
Present Sense Impression
Military Rule of Evidence 803(1) allows “statement[s] describing or explaining an event or condition, made while or immediately after the declarant perceived it.”111 Present sense impression is similar to excited utterance except that the main focus is the amount of time between the event and declaration, and showing excitement is unnecessary.112 The foundation for present sense impression must include the following: “(1) an event occurred; (2) the declarant had personal knowledge of the event; (3) the declarant made the statement during or very shortly after the event; (4) the statement relates to the event.”113 While there is no bright-line timing rule, the Army Court of Criminal Appeals has ruled that “as a general matter, . . . five minutes will usually be within the present sense impression exception and twenty minutes is at the outer edge of the exception.”114
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Then-Existing Mental, Emotional, or Physical Condition
Military Rule of Evidence 803(3), Then-Existing Mental, Emotional, or Physical Condition, allows a “statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.”115 The foundation must include “(1) [w]here the statement was made; (2) [w]hen the statement was made; (3) [w]ho was present; (4) [w]ho made the statement; (5) [w]hom the statement was made to; and (6) [t]he substance of the statement.”116 Such statements easily could occur in cases of abuse where the victim describes the effects of abuse, both emotional and physical. The state of mind must be relevant to the case—for example, to rebut the assertion that the accused and victim had a healthy relationship;117 or to rebut theories that the accused acted in self-defense, the victim self-harmed, or the accused harmed her by accident.118
It is not uncommon for such statements to contain more than one assertion. For example, when analyzing a statement like, “I am so scared he will beat me up again,” there are three assertions: (1) the victim is scared; (2) because the accused beat her up before; and (3) she believes he might do it again. The second assertion may be objectionable if it is offered to “prove the fact remembered.” Depending on the defense theory, however, the entire statement may become admissible. For example, if the defense presents a self-defense theory, the declarant’s entire statement may be admissible to rebut that theory.119
Statements for Purpose of Receiving Medical Treatment
Military Rule of Evidence 803(4) allows “a statement that (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.”120 This exception is “grounded on the assumption that declarants will make reliable statements when they are seeking medical assistance.”121 The foundation for this exception consists of the following elements: “(1) [t]he declarant made the statement to a proper addressee; (2) [t]he declarant made the statement for purposes of diagnoses or treatment; [and] (3) [t]he subject matter of the statement was proper.”122 Doctors are not the only “proper addressees”; nurses, including Family Advocacy nurses, are included.123 Statements to nonmedical personnel may be admissible if they are for the purpose of seeking treatment.124 The focus of the second element is the “subjective intent of the declarant-patient,” while the focus of the third element is what a reasonable medical professional would deem to be proper.125 When eliciting facts to lay the foundation for this exception, trial counsel should examine the medical provider’s purpose in treating the victim, the type of provider, what symptoms the victim described, whether there was a treatment plan or medication prescribed, and other facts indicating the victim’s intent in seeking treatment.126
It is imperative to establish through the victim or other witness that the purpose of the statement was made for medical diagnosis or treatment. Trial counsel have failed at admitting victim statements under MRE 803(4) when law enforcement called emergency responders and they could present no testimony or evidence that the victim sought or wanted medical treatment.127 Additionally, defense may argue that the doctor does not need to know the identity of the injurer to treat the injuries. Courts have ruled, however, that knowing the source is a domestic partner is important to develop a treatment plan, including avoiding reintroducing the victim to the source of physical violence.128
This is not a complete list of potential exceptions; trial counsel should consider all exceptions within the MRE. Additionally, trial counsel should distinguish carefully between hearsay and constitutional analysis in supporting case law. “[N]ot all hearsay implicates the Sixth Amendment’s core concerns,”129 and conversely, evidence that satisfies a hearsay exception may not satisfy the Confrontation Clause.130
Developing a Case: Making Statements Admissible and Credible through Context
Once an out-of-court statement is determined to pass muster under the legal precepts, trial counsel must address critical, practical aspects of entering the statement into evidence at trial. First, ensure the proper witnesses are available for trial and prepared to testify; then, confirm that the victim’s statements are corroborated firmly and as much as possible to present a cohesive, convincing case for proof beyond a reasonable doubt.
Witness Preparation
Preparing all witnesses is critical. For each statement by the unavailable victim, interview each person who heard the statement to determine whether they can establish the facts to admit the statements over Confrontation Clause and hearsay objections. Review the foundations necessary to admit the victim’s statement at trial and ensure that the individuals could testify to them. For example, someone who observed a victim’s frantic behavior immediately after the incident could describe details that support the excited utterance exception. For recorded statements such as 911 calls, confirm who is the proper witness to authenticate the call.131 The earlier trial counsel discover and interview witnesses the better, as they are the gateway to making a good trial record.
If an eyewitness forgets details that were in a prior statement to law enforcement, trial counsel may use the eyewitness’s prior statement to law enforcement to refresh their recollection during pretrial preparation.132 The fact that the witness forgot some of the facts is disclosable to defense.133 But, the damage done through an inconsistent witness statement at trial is likely significantly more detrimental than cross-examination about how the witness had their memory refreshed with a statement many months after the assault. Cross-examination’s impact can be lessened further if trial counsel prepare a question in re-direct to explain why reviewing the statement was necessary.
Without a victim testifying, ensuring that the proper witnesses are available for trial is crucial. Thus, as early as possible, trial counsel should also ask witnesses about their life circumstances and whether anything would prevent their testimony at trial. It is a bad day when trial counsel realize they have failed to obtain a deposition from the only witness to a victim’s statement, and that witness has become unavailable.134 Subpoenas are not a cure-all—for example, if the witness has a complicated pregnancy and cannot travel or is terminally ill. If trial counsel identify this issue early, there will be sufficient time to file a motion with the judge to request the witness’s deposition to enter in later at trial.135
Maintain constant communication with witnesses about anticipated trial dates, motions hearings, and life circumstances. Do not fear the possibility of unearthing evidence beneficial to defense during thorough witness communication. When analyzing the case file and considering indicia of reliability, it is worth considering all exculpatory facts supporting possible defense theories. Potential motives to lie, bias, prior instances of untruthfulness, and evidence indicating that the accused acted in self-defense are all relevant. Ultimately, if a case falls apart after witness discussions and thorough investigation, the case likely was not provable beyond a reasonable doubt to begin with and the most just result may be alternate disposition. The prosecutor’s charge is to ensure justice while upholding the integrity of the criminal justice system, not to secure convictions with improper methods.136
Methodical Case Preparation
Corroboration is key to establishing the foundations for hearsay exceptions, presenting a full picture to the fact finder, and rebutting defense theories.137 Trial counsel should ensure law enforcement collects pictures of the house, injuries, and any other corroborating evidence. If law enforcement is hesitant to investigate a case without a participating victim, explain why the case is prosecutable and what evidence to collect.138 Trial counsel should also consider providing testimony from an expert witness, who could explain the emotional complexities of spousal abuse, to fill in the blanks for an absent victim.
Each piece of evidence must come together to prove every element of the charged offenses. Trial counsel should track exactly what piece of evidence proves each element and how that piece of evidence or testimony will be admitted. An element that would be simple to prove with a testifying victim—such as whether the assault occurred within the charged timeframe—becomes more difficult when the victim is absent, and trial counsel must use multiple pieces of evidence to present the greater picture.
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Bringing It All Together: Analysis of United States v. MAJ Roger Smith
Applying law to the facts of United States v. MAJ Smith, the next section will examine Sherry’s statements (1) to 911 dispatchers; (2) to law enforcement after separation from the accused and in response to questioning; (3) to medical personnel; and (4) to neighbors on the day following the incident.
Sherry’s initial statement to the officer responding to her 911 call are likely nontestimonial regarding the Confrontation Clause. Because the statement was made to law enforcement, we must consider whether the exchange constituted “interrogation.”139 The facts are very similar to Davis, as the purpose of the 911 call was to seek an emergency response, not to establish facts for an investigation.140 Moving on to the hearsay analysis, the call probably would be admissible as an excited utterance, given that she made the call shortly after the abuse and was still in an excited state.141 Trial counsel should pay special attention to crying, tone of voice, the contents of the statement, and yelling or other sounds in the background.142
Conversely, Sherry’s subsequent statement to law enforcement is likely inadmissible because it was testimonial and there was no opportunity for cross-examination. This fact pattern is comparable to Hammon and probably constitutes “interrogation” because it took place after the threat to Sherry’s safety had been neutralized.143 Sherry was in a different room than MAJ Smith. Based on this, the purpose of the questioning was to gain evidence for eventual criminal prosecution. Thus, Sherry’s second statement to police must be excluded under the Confrontation Clause.
This second police statement illustrates the difference between hearsay and Confrontation Clause analysis. Sherry’s statement could be admissible under the excited utterance exception to hearsay if trial counsel could establish that she was still under the stress of the event.144 However, given the lack of an ongoing emergency, separation from her husband, and formality of questioning, it likely would qualify as testimonial under Hammon and thus be inadmissible under the Confrontation Clause.
Sherry’s description of the source of her injuries to the doctor may be admissible under the Confrontation Clause and hearsay bars, but more facts are needed. First, for the constitutional analysis, this statement should be analyzed under the totality of the circumstances using the Rankin factors. Though Sherry made her statement to the doctor as a result of law enforcement response, it could still be considered nontestimonial under the Confrontation Clause if the purpose was to treat an ongoing medical problem rather than for a forensic interview specifically designed to document evidence for trial.145 To overcome a hearsay objection, it is necessary to show that Sherry made this statement for the purpose of receiving medical treatment. It would also help to show the statement helped medical providers form a treatment plan for the injuries.
Likewise, Sherry’s statement to the neighbors (“my husband beat me yesterday, and I’m scared it will happen again”) may not be testimonial if, under the totality of the circumstances, she was participating in a “neighborly discussion” without an eye toward trial.146 The fact that Sherry is scared fits within a firmly rooted hearsay exception: MRE 803(3), Then-Existing Mental, Emotional, or Physical Condition.147 However, the portion of the statement referring to the assault may not be admissible under this exception because it is arguably admitted to prove the fact remembered. It is necessary to speak with the neighbors to assess the surrounding circumstances, asking exactly what Sherry said, how the conversation was started, and what her demeanor was like.
In addition to factual questioning, it is important to discuss with each witness to Sherry’s statements their availability and ensure they are prepared to lay the foundations to admit Sherry’s statements. Using Appendix B as a guide, counsel should collect evidence corroborating Sherry’s statements, such as photographs of her injuries and the house where the assault took place. Finally, counsel should ensure testimony and other evidence satisfy every element of the charged offenses—even seemingly simple elements, such as the time and place of the assault.
Conclusion
Domestic violence cases are at higher risk for victim non-participation than other types of cases because they are often riddled with complicated emotions and family circumstances.148 Further complicating emotional aspects are other factors such as religious mores, immigration status, joint financial interests, children, and family or community pressure.149 Military spouses may deal with unique pressures of being far from family and unemployment from frequent relocation.150 Due to these complexities, domestic violence victims often will recant, request charges be dropped, or testify on behalf of the perpetrator.151
Domestic violence cases may be prosecutable even without an alleged victim testifying at trial. The most important pieces of the case become victim statements that are admissible under the Confrontation Clause and other rules of evidence, entered through witnesses who are prepared and available for trial, and corroborated. Thinking through admissibility and practical preparation lands strong cases in court or provides thoughtful rationale for why alternate disposition is more appropriate. TAL
MAJ Ellis is the Chief of the Administrative and Civil Law Division in the Office of the Staff Judge Advocate, Fires Center of Excellence and Fort Sill at Fort Sill, Oklahoma.
Notes
1. Marvin Gaye, Can I Get a Witness? (Tamla Records, 1964).
2. “Domestic violence” is a “pattern of behavior resulting in emotional or psychological abuse, economic control, or interference with personal liberty that is directed toward a . . . current or former spouse, [p]erson with whom the alleged abuser shares a child in common,” or other types of intimate partners. U.S. Dep’t of Def., Instr. 6400.06, DoD Coordinated Community Response to Domestic Abuse Involving DoD Military and Certain Affiliated Personnel, at G.2 (15 Dec. 2021) (C2, 16 May 2023). The term “intimate partner” includes dating partners, sexual partners, and other types of relationships characterized by romantic, emotional, or family connection. See id.
3. UCMJ art. 128b (2019).
4. Fast Facts: Preventing Intimate Partner Violence, Ctrs. for Disease Control & Prevention (Oct. 11, 2022), https://www.cdc.gov/violenceprevention/intimatepartnerviolence/fastfact.html.
5. Specific deterrence and retribution are sentencing goals under the Uniform Code of Military Justice. Manual for Courts-Martial, United States, R.C.M. 1002(f) (2019) [hereinafter MCM].
6. Special victims’ counsel provide “legal representation to eligible clients who report they are victims of a sex-related or domestic violence offense.” Memorandum from The Judge Advoc. Gen., U.S. Army, to Judge Advoc. Legal Servs. Pers., subject: Policy Memorandum 22-13 – Special Victims’ Counsel, para. 3 (1 Mar. 2022). Alleged victims of domestic violence are eligible for special victims’ counsel services. National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 548, 133 Stat. 1198, 1378 (2019); Memorandum from The Judge Advoc. Gen., U.S. Army, to Judge Advoc. Legal Servs. Pers., subject: Policy Memorandum 22-09 – Domestic Violence Victim Representation Program (1 Mar. 2022).
7. United States v. Jacoby, 29 C.M.R. 244, 246–47 (C.M.A. 1960).
8. U.S. Const. amend. VI.
9. The Confrontation Clause applies to both oral and written statements. Davis v. Washington, 547 U.S. 813, 827 (2006). The clause does not apply, however, if a defendant makes a witness unavailable through threats, harm, or anything else. Giles v. California, 554 U.S. 353, 377 (2008). If this occurs, the Government may enter into evidence statements that otherwise would be barred. Id. If trial counsel believe the accused has taken actions to make witnesses unavailable, consider filing a pretrial motion for a preliminary ruling on whether the accused has forfeited his right to confrontation. Note the standard for this test is high, requiring the accused have specific intent to make the victim unavailable due to his actions, at the time he committed the actions. United States v. Becker, 81 M.J. 483, 489–90 (C.A.A.F. 2021). Simply creating the effect of unavailability is not enough. Id.; c.f. United States v. Santiago, ARMY MISC 20230094, 2023 CCA LEXIS 194, at *10 (A. Ct. Crim. App. May 3, 2023) (finding that the accused’s prior threats to kill his wife if she disclosed past abuse to the police may prove the accused had specific intent to “silence her through fear” during the charged event).
10. Crawford v. Washington, 541 U.S. 36, 50 (2004).
11. See id. at 44–45. At Sir Walter Raleigh’s treason trial in 1603, prosecutors read an inculpatory letter from an alleged “accomplice” to the jury, without giving Raleigh an opportunity to test the veracity of the letter’s writer at trial. Id. at 44. Raleigh argued that the accomplice was lying to “save himself,” and famously demanded: “[L]et [him] be here, let him speak it. Call my accuser before my face.” Id. Yet the judges did not require the accomplice’s presence, and Raleigh was sentenced to death. Id. Later, one judge “lamented”: “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.” Id.
12. Ohio v. Roberts, 448 U.S. 56 (1980), overruled in part by Crawford v. Washington, 541 U.S. 36 (2004).
13. Military Rule of Evidence 804 includes as “unavailable” witnesses who invoke privilege, refuse to testify, or cannot be procured, among other scenarios. MCM, supra note 5, M.R.E. 804(a). It is the Government’s burden to make affirmative measures in “good faith” before a witness is deemed unavailable. Roberts, 448 U.S. at 74–75. Courts consider evidence of subpoenaing the witness an indicator of “good faith effort.” See, e.g., United States v. Cabrera-Frattini, 65 M.J. 241, 246 (C.A.A.F. 2007). But it is an open question whether making a “good faith effort” requires subpoenaing an unwilling victim. Though there is nothing barring prosecutors from subpoenaing victims of domestic violence, practically and morally speaking, this is not always the best course of action. Additionally, “there is ample precedent for finding a witness, even a critical one, unavailable where the act of testifying in court is determined to be detrimental to the witness’s physical or mental well-being.” Id. (citations omitted).
14. Roberts, 448 U.S. at 56.
15. See id. at 70.
16. 541 U.S. 36 (2004).
17. Id. at 63.
18. See id. at 63–66.
19. Id. at 61 (“Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’”).
20. See id. at 52–53.
21. Id. at 51.
22. See infra Section titled “Tests for Admissibility of Nontestimonial Statements.”
23. Crawford, 541 U.S. at 59.
24. Id. at 61.
25. Id. at 53, 68.
26. Id. at 51. Though Crawford lays out two different “formulations” for this type of evidence, see id. at 51–52 (listing “ex parte in-court testimony or its functional equivalent” and “extrajudicial statements”), the author finds them functionally indistinguishable and has thus grouped them together.
27. Id. at 51 (citing 2 Noah Webster, An American Dictionary of the English Language 206 (1828)).
28. Id. at 52; see also Ohio v. Clark, 576 U.S. 237, 249 (“Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.”).
29. 541 U.S. at 52.
30. “Interrogations” for Confrontation Clause analysis is used in a more colloquial sense than “interrogations” for other legal issues. See Davis v. Washington, 547 U.S. 813, 823 (2006). Here, “interrogation” merely means police questioning for the purpose of establishing evidence for a criminal case. See id.
31. 547 U.S. 813 (2006).
32. Id.
33. Id. at 822.
34. Id. at 817–19.
35. Id. at 817.
36. Id. at 818.
37. Id.
38. Id.
39. Id. at 819.
40. Id.
41. Id.
42. Id. The 911 call was admitted over defense objection. Id.
43. Id. at 822. See infra Section titled “Hearsay Analysis of Victim Statements” for a discussion on common hearsay exceptions for 911 calls.
44. See 547 U.S. at 826–27.
45. Michigan v. Bryant, 562 U.S. 344 (2011).
46. Id. at 375.
47. Id.
48. See id. at 349.
49. Id. at 375–76.
50. Id. at 364–65.
51. Id. at 377.
52. Id. at 377–78.
53. Id. at 376 (citing Davis v. Washington, 547 U.S. 813, 832 (2006)).
54. Id. at 359–60.
55. Id.
56. Id. at 377.
57. See Davis, 547 U.S. 813, 830 (2006) (including the Hammon v. Indiana opinion, with the full caption reading Davis v. Washington, Hammon v. Indiana).
58. Id. at 819.
59. Id.
60. Id. at 819–20.
61. Id. at 821.
62. Id. at 832.
63. Id. at 820.
64. Id. at 830.
65. Id. at 831–32.
66. See, e.g., id. at 813, 831–32.
67. Crawford v. Washington, 541 U.S. 36, 52 (2004).
68. United States v. Rankin, 64 M.J. 348 (C.A.A.F. 2007).
69. Id. at 352.
70. Id.
71. See United States v. Squire, 72 M.J. 285, 289 (C.A.A.F. 2013).
72. See, e.g., United States v. Zamora, 80 M.J. 614, 626 (N-M. Ct. Crim. App. 2020).
73. Id.
74. Ohio v. Clark, 576 U.S. 237, 247–58 (2015). “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” Id. at 238.
75. 72 M.J. 285 (C.A.A.F. 2013).
76. Id. at 291.
77. Id. at 288–89. The Supreme Court has applied the same rationale to statements made to preschool teachers, who also have mandatory reporting requirements. Ohio v. Clark, 576 U.S. 237, 247 (2015) (holding that suspected child abuse qualified as a potential ongoing emergency).
78. United States v. Gardinier, 65 M.J. 60, 66–67 (C.A.A.F. 2007).
79. Id.
80. Id. at 66.
81. Id.
82. Id.
83. Id. at 66–67.
84. United States v. Squire, 72 M.J. 285, 289 n.7 (C.A.A.F. 2013).
85. See id.
86. Ohio v. Roberts, 448 U.S. 56, 66 (1980), overruled in part by Crawford v. Washington, 541 U.S. 36 (2004).
87. Idaho v. Wright, 497 U.S. 805, 819 (1990).
88. Firmly rooted hearsay exceptions include: excited utterance, United States v. Arnold, 25 M.J. 129, 133 (C.M.A. 1987) (citing United States v. Dunlap, 25 M.J. 89, 92 (C.M.A. 1987); then-existing mental, emotional, or physical condition, United States v. Lingle, 27 M.J. 704, 708 (A.F.C.M.R. 1988); statements for purpose of medical diagnosis or treatment, White v. Illinois, 502 U.S. 346, 355 n.8 (1992); past recollection recorded, Hatch v. Oklahoma, 58 F.3d 1447, 1467 (10th Cir. 1995), overruled on other grounds by Daniels v. United States, 254 F.3d 1180 (10th Cir. 2001); dying declarations, Pointer v. Texas, 380 U.S. 400, 407 (1965); prior trial testimony, Mancusi v. Stubbs, 408 U.S. 204, 213–16 (1972); business records, Roberts, 448 U.S. at 66 n.8; and public records, id.
89. MCM, supra note 5, M.R.E. 807.
90. Id. M.R.E. 804(b)(3).
91. Wright, 497 U.S. at 812–13.
92. See, e.g., United States v. Scheurer, 62 M.J. 100, 106 (C.A.A.F. 2005); United States v. Rankin, 64 M.J. 348, 353 (C.A.A.F. 2007); United States v. Magyari, 63 M.J. 123, 128 (C.A.A.F. 2006); United States v. Zamora, 80 M.J. 614, 627 (N-M. Ct. Crim. App. 2020).
93. Whorton v. Bockting, 549 U.S. 406, 420 (2007) (“Under Crawford, . . . the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability.”). This case was decided a mere month after Rankin. See 64 M.J. 348. Though CAAF has acknowledged Whorton’s ruling in a footnote, it has not explicitly addressed the discrepancy. See United States v. Czachorowski, 66 M.J. 432, 434 n.3 (C.A.A.F. 2008).
94. 549 U.S. at 420. “When the Supreme Court construes the Constitution, . . . the CAAF must consider the extent to which that constitutional provision applies to the military justice system.” H. F. “Sparky” Gierke, The Use of Article III Case Law in Military Jurisprudence, Army Law., Aug. 2005, at 25, 26.
95. Michigan v. Bryant, 562 U.S. 344, 358–59 (2011) (“Where no such primary purpose [of preparing evidence for trial] exists, the admissibility of a statement is the concern of state and [F]ederal rules of evidence, not the Confrontation Clause.”). See also Laird C. Kirkpatrick, Nontestimonial Hearsay After Crawford, Davis and Bockting, 19 Regent U. L. Rev. 367 (2007).
96. Though a full discussion of this is outside the scope of this paper, establishing a statement carries “particularized guarantees of trustworthiness” under Roberts and its progeny poses a higher bar than meeting requirements under the residual hearsay exception, because the “particularized guarantees of trustworthiness” analysis does not permit consideration of extrinsic, corroborating evidence or ex post facto corroboration. See, e.g., Idaho v. Wright, 497 U.S. 805 (1990). Conversely, United States v. Zimmer illustrates how residual hearsay can demonstrate reliability when judges consider extrinsic corroborating evidence. See United States v. Zimmer, Army 20200671, 2023 CCA LEXIS 1, at *22 (A. Ct. Crim. App. Jan. 4, 2023); see also Lieutenant Commander David M. Gonzalez, The Continuing Fallout from Crawford: Implications for Military Justice Practitioners, 55 Naval L. Rev. 31, 44–48 (2008).
97. MCM, supra note 5, M.R.E. 801(c).
98. Id. M.R.E. 802.
99. See id. M.R.E. 801–803. If the declaration is a question or a command, it likely is not a “statement” fitting within the definition of hearsay. See id. M.R.E. 801(a). Likewise, if trial counsel do not wish to use the statement for the “truth of the matter asserted,” but rather for effect on the listener, the statement also is not hearsay. See id. M.R.E. 801(c)(2). Beware that in this latter circumstance, however, the statement will not come in substantively and cannot be argued as evidence.
100. Id. M.R.E. 801(d)(1)(A).
101. Id. M.R.E. 801(d)(1)(B).
102. See, e.g., United States v. Finch, 78 M.J. 781, 785 (A. Ct. Crim. App. 2019).
103. MCM, supra note 5, M.R.E. 803(2).
104. Idaho v. Wright, 497 U.S. 805, 820 (1990) (“The basis for the ‘excited utterance’ exception . . . is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation . . . .”).
105. United States v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987).
106. Id.
107. Id.
108. See Michigan v. Bryant, 562 U.S. 344, 361–62 (2011) (“This logic [of emergency response] is not unlike that justifying the excited utterance exception in hearsay law. . . . An ongoing emergency has a similar effect of focusing an individual’s attention on responding to the emergency.”).
109. See United States v. Grant, 42 M.J. 340, 343–44 (C.A.A.F. 1995) (finding that declarant’s statements were too calm to qualify as “excited utterances”).
110. E.g., United States v. Henry, 81 M.J. 91, 98 (C.A.A.F. 2021) (noting that yelling and looking scared and frightened are indicators of excitement for purposes of the excited utterance exception).
111. MCM, supra note 5, M.R.E. 803(1).
112. David A. Schlueter et al., Military Evidentiary Foundations § 11-7(1) (7th ed. 2021).
113. Id.
114. United States v. Brown, ARMY 20160195, 2018 CCA LEXIS 107, at *32 (A. Ct. Crim. App. Feb. 28, 2018) (citing Taylor v. Erna, No. 08-10534-DPW, 2009 U.S. Dist. LEXIS 61612, at *15 (D. Mass. July 14, 2009)).
115. MCM, supra note 5, M.R.E. 803(3).
116. Schlueter, supra note 112, § 11-9(1)(b).
117. See United States v. Elmore, 33 M.J. 387, 397 (C.M.A. 1991).
118. United States v. Brown, 490 F.2d 758, 767 (D.C. Cir. 1973).
119. See id.
120. MCM, supra note 5, M.R.E. 803(4).
121. Schlueter, supra note 112, § 11-9(2)(a).
122. Id. § 11-9(2)(b).
123. See United States v. Cucuzzella, 66 M.J. 57 (C.A.A.F. 2008).
124. Id. at 59.
125. Schlueter, supra note 112, § 11-9(2)(b) n.32.
126. See, e.g., United States v. Ureta, 44 M.J. 290 (C.A.A.F. 1996).
127. E.g., United States v. Hughes, 48 M.J. 700, 711 (A.F.C.M.R. 1998) (hearsay did not fall within 803(4) when Government could not establish the patient made the declaration for the purpose of medical treatment).
128. E.g., United States v. Ortiz, 34 M.J. 831, 834 (A.F.C.M.R. 1992).
129. Crawford v. Washington, 541 U.S. 36, 51 (2004).
130. See, e.g., Davis v. Washington, 547 U.S. 813, 820 (2006).
131. Authentication means introducing sufficient evidence to show the evidence trial counsel seeks to admit is what it purports to be. MCM, supra note 5, M.R.E. 901. If trial counsel seek to admit a recording of the victim’s statements in a 911 call, refer to id. M.R.E. 901(6) (Evidence About a Telephone Conversation). Either the dispatcher or the record keeper for the 911 call could authenticate the call at trial. See id.
132. See MCM, supra note 5, M.R.E. 612.
133. See Brady v. Maryland, 373 U.S. 83 (1963) (holding that material, exculpatory evidence must be disclosed to the defense); MCM, supra note 5, R.C.M. 701(a)(6) (requiring trial counsel to, “as soon as practicable, disclose to the defense” evidence that “reasonably tends to . . . [n]egate the guilt of the accused of an offense charged; . . . [r]educe the degree of guilt of the accused of an offense charged; . . . or . . . [a]dversely affect the credibility of any prosecution witness or evidence.”).
134. Interview with Major Joseph Levin, Student, Command and General Staff College, Fort Leavenworth, Kan. (Nov. 2, 2022).
135. See MCM, supra note 5, R.C.M 702.
136. See Berger v. United States, 295 U.S. 78, 88 (1935) (“[W]hile [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”).
137. See Appendix B for a list of corroboration examples.
138. Some investigators cease putting full effort into a domestic violence case file if a victim ceases to participate due to agents’ incorrect belief that these types of cases cannot be prosecuted. Interview with Major Callin Kerr, Chief of Justice, Fort Campbell, Ky. (Oct. 19, 2022). Chiefs of Justice (CoJs) can help their trial counsel shape the case file by explaining to investigative offices that these cases may still be prosecutable and providing checklists for thorough case files. Id. If the incident occurred off-post or in a place with concurrent Federal jurisdiction, CoJs should determine jurisdiction early so the military investigative body knows whether it has ownership over the case and is more invested in the investigation. Id.
139. See supra Section titled “Determining Whether a Statement Is Testimonial.”
140. See Davis v. Washington, 547 U.S. 813, 823 (2006).
141. See id.
142. See supra note 110 and accompanying text.
143. See Davis, 547 U.S. at 818–20.
144. See supra Section titled “Excited Utterance.”
145. See supra Section titled “Medical Personnel.”
146. See supra Section titled “Friends and Neighbors.”
147. See MCM, supra note 5, M.R.E. 803(3).
148. See Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 768–71 (2005).
149. Id.
150. See Exec. Order No. 14100, 88 Fed. Reg. 39111 (June 15, 2023) (stating that active-duty military spouses experience a 21 percent unemployment rate).
151. See Lininger, supra note 148, at 768–71; see also People v. Brown, 94 P.3d 574, 581 (Cal. 2004) (citing a government expert’s trial testimony that “about 80 percent of the time a woman who has been ‘initially assaulted’ by a boyfriend, husband, or lover will recant, change, or minimize her story”).
Appendix A: Confrontation Clause (CC) Flow Chart
This chart is designed to anchor the reader of this primer, not as a substitute for understanding specific case law.
Key Quotations
Crawford v. Washington, 541 U.S. 36, 51-52 (2004): Testimonial statements include: 1) “Ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; 2) “Extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; 3) “[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
Davis v. Washington, 547 U.S. 813, 822 (2006): “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
United States v. Rankin, 64 M.J. 348, 354 (C.A.A.F. 2007): “First, was the statement at issue elicited by or made in response to a law enforcement or prosecutorial inquiry? Second, did the ‘statement’ involve more than a routine and objective cataloging of unambiguous factual matters? Finally, was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial?”
Ohio v. Roberts, 448 U.S. 56, 66 (1980): “In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”
Appendix B: Evidence to Obtain and/or Analyze in Domestic Violence Cases
1. 911 calls
2. Medical records
3. CCTV or other video footage from the scene of the assault
4. Photographic evidence
a. Crime scene photographs
b. Injuries
c. Damaged property
d. Alcohol
5. Other physical evidence, such as weapons
6. All witnesses
a. Lay eye witnesses
b. First responders
c. Children
7. Phone records
8. Social media
9. Confessions or admissions of the accused
10. Apologies
11. Past criminal record of the accused or other history of domestic violence
12. Expert analysis and testimony