When Words Bear Witness

The New York Times
When Words Bear Witness
By MICHAEL RIPS and AMY LESTER

THE Supreme Court is scheduled to hear oral arguments today in two cases that may make domestic violence cases all but impossible to prosecute. The cases, Davis v. Washington and Hammon v. Indiana, raise the question of whether statements made to 911 operators can be admitted in prosecutions if those who made the calls refuse to appear in court. Such evidence has become crucial in bringing domestic abusers to justice.

Domestic violence accounts for up to 34 percent of all reported violent crimes, but it is notoriously difficult to prosecute, because victims frequently drop charges or refuse to testify when their abusers threaten them with further violence. In the 1980's and 1990's, the refusal of victims to cooperate in the prosecution of their batterers may have resulted in the dismissal of as many as 70 percent of all domestic violence cases.

In recent years, however, prosecutors, police officers and advocates for domestic violence victims have developed techniques, together known as "evidence-based prosecution," that focus on the use of reliable evidence, like 911 tapes, to build cases that do not depend on the cooperation of the victim. In San Diego, the City Attorney's domestic violence unit uses evidence-based prosecution, and it obtains convictions in about 88 percent of its cases. In a typical six month period in the old days, the unit's conviction rate was just 12 percent.

But evidence-based prosecution suffered a major setback in 2004. That year, in Crawford v. Washington, the Supreme Court held that if witness statements were "testimonial" in nature, they could not be introduced unless the witness was available for cross-examination by the defendant. The court deferred the question of exactly what types of statements should be considered "testimonial." That is the matter at the heart of the two cases now before the court.

A significant number of courts have interpreted Crawford to bar the use of 911 tapes and answers to questions posed by police officers unless the witness is available for cross-examination. In so doing, they've overturned convictions in cases of domestic battery. In a survey of more than 60 prosecutors in California, Oregon and Washington, 63 percent said that Crawford hampered the prosecution of domestic violence; 76 percent reported that they'd grown more likely to drop domestic violence charges when they encountered uncooperative witnesses; and 65 percent said that Crawford had made domestic violence victims less safe than they were before. Reports from other jurisdictions echo these findings.

If the Supreme Court, in deciding Davis and Hammon, adopts a definition of "testimonial" that includes statements made by victims to 911 operators or to officers arriving at the scene of the abuse, prosecutors will face some undesirable options in domestic violence cases. They can refuse to bring cases in which the victim won't testify; or they can try to force the victim to testify. The latter is no solution because it would entail subjecting abuse victims to state-imposed sanctions, including jail time.

This is why, in answering the question left open by Crawford, the court should not define "testimonial" in a way that restricts the use of out-of-court statements made by victims to 911 operators or police officers at the scene of the crime. Without access to such evidence, the criminal justice system may be rendered virtually incapable of protecting victims of domestic violence and of holding their batterers accountable.

Michael Rips and Amy Lester are lawyers representing a coalition of nonprofit organizations that protect women and children from domestic violence.