An Argument for Original Intent: Restoring Rule 801(D)(1)(A) to Protect Domestic Violence Victims in a Post-Crawford World

Prosecution of domestic violence is extremely difficult, largely due to the fact that defendants are successfully pressuring victims to refuse to testify or to recant their testimony at trial. With its decision in Crawford, the Supreme Court eliminated the ability of prosecutors to use hearsay exceptions to place the domestic violence victim\u27s statements before the jury for their substantive consideration. The Supreme Court also closed this avenue to combat defendants\u27 efforts to avoid liability through coercive pressure on victims. Therefore, the Court\u27s change in the Confrontation Clause law limits the prosecution\u27s arsenal for combating witness intimidation and, at the same time, places an unwieldy Rule 801(d)(1)(A) squarely into play. Unfortunately, the current rule is ineffective in assisting domestic violence prosecutions and preventing witness intimidation. When the defendant\u27s pressure results in recantation, rather than refusal to testify, the Court\u27s forfeiture by wrongdoing remedy to witness intimidation is not available. In this situation, the prosecution is left with a faulty witness and no prior statement. The defendant, on the other hand, is the double beneficiary of the Crawford decision: he has an enhanced right to confront the victim and Rule 801(d)(1)(A) prevents redress of his intimidation of the victim. The modified rule, however, is able to properly align the positive benefits of the Crawford decision by ensuring the defendant\u27s full confrontation rights and eliminating the incentive to intimidate witnesses. In this way, allowing substantive use of prior inconsistent statements is vital to society\u27s efforts to hold batterers accountable for the violence they inflict on their victims

Teens, Technology, and Cyberstalking: The Domestic Violence Wave of the Future?

The American criminal justice system, (therefore), is facing a future domestic violence crisis. Unfortunately, authorities-both parents and law enforcement-tend to minimize the seriousness of violence within adolescent relationships and to minimize the seriousness of stalking. In addition, given the prevalence and embrace of technology by teenagers, criminalizing normal teenage behavior seems counter-productive. While an effective criminal justice system response to this problem has yet to be developed, the first step will be for parents and law enforcement to recognize the risk and take it seriously. The second step will be to renorm unhealthy teenage relationship norms. It is possible that the very embrace of technology might hold a solution. With guidance, the power of social networking may provide an effective counter to the isolation and imbalance of the domestic violence relationship. The combination of these steps might help avert this domestic violence crisis. Section II of this article will explore the dynamics and intersection of the domestic violence relationship, stalking, and technology. Section III will examine teenage identity formation, teenage use of technology, the incorporation of technology into teenagers\u27 identity formation and relationships, and the prevalence of teenage domestic violence. Section IV will explore the potential consequences of current technology use in teenagers\u27 intimate relationships. Section V will propose possible solutions to the burgeoning crisis in America\u27s efforts to combat domestic violence

Forfeiture by Wrongdoing: A Panacea for Victimless Domestic Violence Prosecutions

In this article the author explores whether the rule of forfeiture by wrongdoing is the post-Crawford panacea for victimless domestic violence prosecutions. Section II briefly discusses the Crawford decision and the revitalization of the Confrontation Clause. The author highlights Crawford\u27s recognition of the rule of forfeiture by wrongdoing and the traditional concept of forfeiture by wrongdoing. Section III presents difficulties with the rule of forfeiture by wrongdoing in the domestic violence context. In Section IV the author proposes solutions to these difficulties along with the additional requirements that are necessary when applying the rule in domestic violence cases being tried without the victim testifying in court

True to Character: Honoring the Intellectual Foundations of the Character Evidence Rule in Domestic Violence Prosecutions

This article calls for a new character evidence rule allowing the admission of prior acts of abuse within the context of a current domestic violence prosecution. Section II discusses the history of domestic violence in America and explores the three ways that the law has condoned domestic violence, including implicit sanction through the effect of the character evidence rule. Section III examines the intellectual background of the character evidence ban. This section also explores the conflict between the character evidence rule and the law\u27s recognition of domestic violence. Further, Section III demonstrates how the character evidence ban violates its underlying principles in the domestic violence context. Finally, Section III articulates rationale for a new character evidence rule in the domestic violence context -- a rule consistent with the rule\u27s original intellectual underpinnings

Extraterritoriality of Restrictive State Abortion Laws: States Can Abort Plans to Abort at Home But Not Abroad

The question of a state\u27s authority to legislate abortion extraterritorially may appear largely academic because of the United States Supreme Court\u27s holding in Roe v. Wade, in which the Court prohibited states from restricting abortions in the first trimester of pregnancy.\u27 At first glance, the Supreme Court\u27s recent decision in Planned Parenthood v. Casey\u27 appears to remove further the issue of extraterritorial abortion legislation from the states because the decision purportedly reaffirmed Roe.3 The Casey decision, however, does not preclude returning the abortion issue to the states. An extremely tenuous coalition of justices reaffirmed Roe, while a united group of dissenters argued that the Supreme Court should defer resolution of the abortion issue to state legislatures. 4 Furthermore, Casey\u27s undue burden standard allows states significant latitude in restricting abortion, and the decision does not address extraterritoriality.\u27 In the wake of the Casey decision, courts throughout the nation will have to confront the question of the legality of state-restrictive abortion laws.6 The post-Casey abortion landscape will largely resemble the pre-Roe landscape: a patchwork of states either legalizing or significantly restricting abortion, with women traveling interstate to obtain abortions.7 This Note examines the power of states to enact extraterritorial criminal abortion laws. Previous attempts to address this issue have failed to recognize any limits on a state\u27s authority to legislate restrictive abortion laws. This Note proposes a framework for addressing the legality of extraterritorial state legislation and for imposing restrictions on state extraterritorial legislative authority. Section I examines the timeliness of issues relating to extraterritorial criminal abortion legislation. Section II discusses possible sources for a state\u27s authority to legislate beyond its borders, focusing on the Model Penal Code\u27s discussion of extraterritoriality and the traditional international law bases for criminal jurisdiction. Section III addresses the applicability of international law principles to the separate states of the United States. Section IV applies the judicially recognized restrictions on a state\u27s power to legislate extraterritorially to the specific issue of extraterritorial criminal abortion legislation

Just What the Doctor Ordered: The Need for Cross-Cultural Education in Law School

This article urges law schools to follow their medical counterparts by incorporating cross-cultural education into their curricula. Part II discusses the Grutter v. Bollinger decision and the Supreme Court\u27s recognition of the benefits of diversity to legal education. Part III highlights the changing demographics of the United States and how those demographics require immediate response from the legal academy. Part IV considers the experience of medical education. This section begins by exploring a study of the medical profession conducted by the Institute of Medicine. The section then addresses medical schools\u27 response to the Institute of Medicine report and the subsequent incorporation of cross-cultural education into medical school curricula. Part V addresses the recent assessments by CLEA and the Carnegie Foundation regarding cross-cultural competency of lawyers. Part VI argues that the American Bar Association must take the lead and require law schools to incorporate cross-cultural competency into the education of America\u27s next generation of lawyers

A Response to The Sounds of Silence

In his article, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, Tom Lininger attempts to facilitate the effective prosecution of domestic violence cases, particularly domestic homicide, while complying with the new requirements announced [for forfeiture by wrongdoing] by the Supreme Court in Giles [v. California]. \u27 In doing so, Lininger tackles a wide array of topics, including analyzing the theoretical underpinnings of forfeiture by wrongdoing; explicating the Giles decision, criticizing Justice Scalia\u27s originalist approach for its selective historical research . . . conflation of evidentiary and constitutional forfeiture theories, and . . . vacillation between objective and subjective standards for assessing intent ; 3 developing a new jurisprudential framework for forfeiture analysis;4 and proposing amendments to Federal Rule of Evidence 804(b)(6)-the federal forfeiture by wrongdoing rule. While many of these topics are interesting and worthy of scholarly response, I intend to limit my comments to Lininger\u27s proposed solution to the conundrum created by the Giles v. Calfornia\u27 decision. The Court in Giles held that forfeiture by wrongdoing is limited to when the prosecution can prove the defendant intended to prevent the victim from testifying against him.6 Prior to Giles, many courts had held that the defendant\u27s intent for forfeiture by wrongdoing could be inferred when the defendant killed his victim. The Giles Court disagreed, finding it was inappropriate to infer the defendant\u27s intent. Many contend that this decision creates a perverse incentive for domestic violence defendants to kill their intimate partners in order to best capitalize on their confrontation rights.8 As one who has viewed forfeiture by wrongdoing as a potential solution to the battering dynamics in domestic violence cases, I find myself intrigued by Lininger\u27s efforts to create bright-line rules, even after Giles, for when it is appropriate to infer the defendant intended to prevent the victim from testifying. While I ultimately find Lininger\u27s proposed bright-line rules incomplete, I wholeheartedly agree with his effort to create situations in which inferring intent is constitutionally appropriate. In this way, courts can address the reality of domestic violence and prevent the defendant benefitting from additional violence

Just What the Doctor Ordered: The Need for Cross-Cultural Education in Law Schools

In 2003, the United States Supreme Court affirmed the importance of diversity in legal education when it decided Grutter v. Bollinger.\u27 Underlying the Court\u27s decision was the recognition that a diverse student body benefits the education of all law students, which in turn, impacts society in important ways. While recognition of educational diversity as a compelling state interest allows law schools to consider race in admissions, race-based admissions policies alone cannot address the truly compelling state interest underlying educational diversity: training lawyers to practice in a multicultural society, including effectively representing clients from different racial, ethnic, and socioeconomic backgrounds. Law schools must do more than simply attempt to create diverse classrooms. Law schools must implement cross-cultural education to teach law students the skills necessary to understand cultural differences and to effectively communicate with clients and colleagues whose cultural backgrounds differ from their own