Sex, Threats, and Absent Victims: The Lessons of Regina v. Bedingfield for Modern Confrontation and Domestic Violence Cases

In 2004, Crawford v. Washington, authored by Justice Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment’s Confrontation Clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully. Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the murder victim. The analysis of the res gestae hearsay exception, which was central to excluding the victim’s statement in Bedingfield, focused on the timing of her statement, her intent in making it, and whether an ongoing emergency existed when the declaration was made. Justice Scalia’s rigid, formalistic approach to testimonial statements in Davis v. Washington, another in the line of new confrontation cases, is analogous and ultimately as confusing and unworkable as Bedingfield’s res gestae analysis. Although Bedingfield arose in 1879, its facts, replete with verbal abuse, intoxication, unheeded pleas for police protection, and ultimately, murder when the victim tried to break off the relationship, resonate with modern experiences of domestic violence. Both the Bedingfield case and Justice Scalia’s confrontation jurisprudence fail to account for the practical realities of domestic violence cases and ignore the voices of victims who cannot or will not testify on their own behalf. The facts of Bedingfield, which present a serious question whether the victim’s statement was ever uttered, demonstrate another flaw in Justice Scalia’s new approach. In addition to being too rigid in rejecting unconfronted testimonial statements, the new confrontation doctrine is also too lax regarding nontestimonial statements, which now receive no constitutional protection at all

The Child Vanishes: Justice Scalia\u27s Approach to the Role of Psychology in Determining Children\u27s Rights and Responsibilities

This Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, but more importantly, illustrates how his dedication to tradition, history, and originalism leads to his attitudes towards children and psychology, and raises interesting questions about the role of psychology in legal opinions. The use of children as “posterchildren”—sympathetic representatives of liberal causes—for abolishing the death penalty and curtailing public-sponsored prayer clearly irked Justice Scalia. Additionally, Justice Scalia’s attitudes toward psychology present a fascinating lens for assessing how judicial philosophy and personal proclivity reinforce each other. More broadly, this Article explores how judges should use brain science, social psychology, and clinical psychology in their legal analyses

Once We Were Slaves, Now We Are Free: Legal, Administrative, and Social Issues Raised by Passover Celebrations in Prison

“Once we were slaves, now we are free” is a central line from the Jewish Passover Seder, a ritual meal in which participants retell the story of liberation from Pharaoh’s oppression. In prison, many Jewish inmates request access to a Seder and to kosher-for-Passover food for the eight-day holiday. Prisoners’ requests to celebrate Passover provide a rich example for exploring the Religious Land Use and Institutional Persons Act (RLUIPA), and raise a host of tough questions regarding cost, safety, equal treatment of prisoners, and establishment of religion. Because kosher-for-Passover meals are more expensive and generally of higher quality than regular prison fare, the prison must decide who is genuinely eligible, and who is merely seeking better food. In deciding which prisoners are sincere, administrators tend to adopt rigid standards for what constitutes appropriate religious observance and sometimes fail to credit prisoners’ individual beliefs. Beyond the formal legal issues of prisoners’ rights and administrative protocol lies the deeply personal and symbolic meaning that the Passover Seder has for those who are incarcerated. The irony of their situation – celebrating a ritual of freedom inside prison – is not lost on inmates who seek spiritual freedom even – and especially – in prison

Propensity or Stereotype?: A Bad Evidence Experiment in Indian Country

In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.The de facto concentration of Rules 413-414 cases in Indian Country raises troubling questions regarding what it means to have just and neutral evidence rules. The selective application of these character rules to a particular population violates important goals of evidence law, such as equal application, fair process, and focus on the event charged. The concentration of Indians among criminal defendants subject to Rules 413-414 exposes Indians to rules that allow jurors to convict relying on the accused’s propensities and prior sex offenses. This focus on prior bad acts can be unfair to the accused and distracting for the jury. It may also perpetuate stereotypes about Indians, subtly influencing the development and application of the rules.Relying on theories of how fact-finders use stereotypes, this Essay posits that applying Rules 413-414 to a discrete minority makes the propensity arguments seem more intuitively appealing, because the appearance of Indians as regulars at the defense table works to reinforce the perception that propensity evidence is valuable. Therefore, this Essay argues, the evidence experiment in Indian Country has helped pave the way for judicial acceptance of a dangerous new doctrine permitting propensity evidence in sex offense cases