An often-frustrating element of domestic violence investigations is the ever-present possibility of witness intimidation. Often a victim in a case will make a full statement to responding officers sufficient to support an arrest and successful prosecution, but, by the time the case goes to trial, the witness has been influenced by their abuser or the abuser’s friends and family and refuses to either come to court or to testify. Quite often, without the victim’s statements, the case then falls apart, leaving the offender free to escape responsibility and continue hurting his or her victim. Indeed, such a situation is so common as to be expected by most officers who handle domestic violence calls.

This basic pitfall is caused by the Confrontation Clause, an element of the Sixth Amendment of the U.S. Constitution.¹ Prior to 2004 the courts had allowed certain exceptions to the basic guarantee of the Constitution that every defendant shall have the right to confront the witnesses against him or her. However, in 2004, the U.S. Supreme Court decided the case of Crawford v. Washington.² Prior to Crawford, a prosecutor at trial could have an officer take the stand and testify about hearsay statements an unavailable victim (or other witness) said at a scene as long as the statement fell “within a firmly rooted hearsay exception” or “[bore] particularized guarantees of trustworthiness.”³ Crawford changed that situation, in essence equating hearsay with a violation of the Confrontation Clause and eliminating hearsay exceptions. According to Crawford, the common exceptions to hearsay no longer applied: if a defendant could not cross-examine a witness in court, the victim’s out-of-court statements (hearsay) would not be allowed into evidence.

Since Crawford, when a domestic violence case is based upon victim testimony, if that victim does not show up to court, the case usually dies. That creates a very difficult challenge for prosecutors insofar as a prosecutor is vastly disadvantaged in efforts to convince a reluctant victim to come to court. Despite great gains made in the area of victim advocacy and the issuance of restraining orders, prosecutors will still never be able to overcome the influence many long-term abusers hold over their victims. The weeks and months leading up to a trial can give a motivated and dishonest defendant considerable opportunities to apply pressure upon a victim to simply not show up to court. The result can be a cycle of years of abuse, punctuated by occasional court cases that go nowhere.

But there is a possible solution to many of these situations, an exception to Crawford that can sometimes allow a prosecutor to use statements made by a victim at the scene, even when the victim does not show up to testify.

A short passage in the Crawford case notes that forfeiture by wrongdoing “extinguishes confrontation claims on essentially equitable grounds.” In 2008, this matter was further explored in Giles v. California, where the U.S. Supreme Court made clear that forfeiture by wrongdoing supersedes both the confrontation clause and the prohibition of hearsay.⁴ Giles, in particular, noted the extreme vulnerability of long-term victims of domestic violence and the pressures they can face to not attend court.

Simply put, the forfeiture by wrongdoing exception means that a defendant cannot act to create the unavailability of a witness and then hide behind the confrontation clause to keep the victim’s on-scene testimony out of court.

Federal Rules of Evidence 804(b)(6) defines forfeiture by wrongdoing as “A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.”⁵

In plain language, this means, with regards to domestic violence cases, if a victim is unavailable for court, in order to use on-scene statements made to a responding officer, a prosecutor must establish the accused acted or allowed others to act to keep the victim from showing up in court. Importantly the burden of the prosecutor to prove this is very low— it requires a preponderance of evidence, which basically means simply that it is more likely than not the case.

This is where a good investigation or report by the initial responding officer can make or break the case. In most U.S. states, for forfeiture by wrongdoing to exist, there must be both an intent to secure unavailability and something done to secure a witness’s unavailability

Violence between intimate partners is often integrated into a larger pattern where the violence is a tool designed to establish or maintain control. Domestic abuse is a crime. Thus, these sorts of relationships are an ongoing criminal enterprise where one of an abuser’s main goals in building and maintaining power and control has to be to prevent their ongoing abuse from being discovered. This means that abusers start grooming their victims and developing tools to prevent disclosure very early on in such a relationship, and the sorts of tools an abuser will use to keep their ongoing crimes secret can be very subtle and wide-ranging. While they can certainly include direct threats and physical actions, tactics can also include things as subtle as keeping control of the victim’s finances; keeping them isolated or only in contact with friends and family of the abuser; violence or threats of violence against surrounding friends, children, or pets; using children as bargaining tools; threatening deportation or using a victim’s legal status to control the victim; using sole wage earner status; causing guilt with regards to children; and so forth.

Some courts and some prosecutors will be more aware of this element of domestic violence. Because of this, there is a divergence among states as to how far a prosecutor can look in order to prove whether or not a defendant “intended” to suppress a victim’s testimony (usually by securing their failure to show up in court). For example in Washington, if a defendant is simply aware that the foreseeable consequences of his or her actions was the unavailability of a witness, forfeiture by wrongdoing can apply.⁶ That means that, potentially, the whole structure of a relationship can be taken into consideration in establishing forfeiture by wrongdoing. However, other states are less willing to look at the totality of a situation to determine if a witness has been dissuaded from testifying in order to apply forfeiture by wrongdoing. The best advice for responding officers is, within the time and investigatory limitations of their role, to obtain as much information as possible of potential witness intimidation, including relationship structure and past history. In terms of direct statements from the victim, information about who earns all or most of the household income, who pays the bills, who has access to the bank accounts, who has an automobile, and who, if anyone, shares their residence (the abuser’s family?).

Likewise, statements from responding medical personnel, other witnesses, or friends and family can all build a more complete picture of a relationship where the batterer is well aware of (and counting on) long-term pressures to keep his or her victim from going to court.

Documenting this information goes a long way toward helping a prosecutor establish forfeiture by wrongdoing and thus compensate for an unavailable victim during the trial. Long after the responding officer loses contact with the case, a prosecutor can refer to the officer’s notes and use them to build a picture to the sitting judge that can help them understand the kind of pressure that is being brought to bear on a victim and causing the victim to not attend court.

As with other legislation and legal exceptions, law enforcement leaders should consult with their counsel to determine what their state’s laws are surrounding forfeiture by wrongdoing and what their officers are permitted to do and not do when documenting a domestic violence response.

Notes:

¹ Legal Information Institute, “Right to Confront Witness.”

² Crawford v. Washington, 541 U.S. 36 (2004).

³ Ohio v. Roberts, 448 U.S. 56 (1980).

⁴ Giles v. California, 554 U.S. 353 (2008).

⁵ Federal Rules of Evidence, Hearsay Exceptions; Declarant Unavailable, 804(b)(6).

⁶ State v. Mason, 160 Wn.2d 910, 162 P.3d 396 (2007).