Hammon v. Indiana; Davis v. Washington

United States Supreme Court - 2006

This case addresses the critically important question of what types of evidence may be used in criminal prosecutions of batterers.  In 2004 the Supreme Court in Crawford v. Texas fundamentally transformed well-settled law regarding the Confrontation Clause, newly holding that defendants had the right to require that the State produce live witnesses against them rather than relying on testimonial hearsay.

Domestic violence prosecutions are often built around reliable hearsay because victims are so often intimidated, traumatized, or otherwise reluctant to testify. Hence, although the Crawford case did not involve domestic violence, the decision profoundly undermined many criminal prosecutions of domestic violence around the country. In 2005 the Court accepted for review two domestic violence cases which required the Court to decide whether to broadly or narrowly construe its term “testimonial”, thereby potentially determining the viability of future state domestic violence prosecutions.

DV LEAP spearheaded the sole domestic violence amicus brief in the case, with the help of pro bono counsel, Legal Momentum, and the National Network to End Domestic Violence.   The brief provided a powerful description of the compelling need for “evidence-based” (i.e., victimless) prosecutions in domestic violence cases, and educated the court about the power and control dynamics of domestic violence, the State’s historical failure to prosecute domestic violence, and the reasons so many victims are unable safely to testify. It compiled moving statements from victims, advocates and prosecutors around the country, describing victims’ experiences of terror, intimidation, and trauma at the hands of their abusers, and sometimes the justice system.  

In June 2006, the Supreme Court issued a decision affirming prosecutors’ right to use 911 tapes as evidence when the victim does not testify; and limiting the use of other hearsay spoken to police. The Court acknowledged the coercion to which victims are subjected by defendants in domestic violence cases, and echoed DV LEAP’s brief’s discussion of the “forfeiture” doctrine, as providing an appropriate exception to the requirement of live testimiony in cases where the defendant intimidates the witness out of testifying. 

Click here to read DV LEAP's amicus brief.  Click here to read the court's opinion.