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Full-Text Articles in Law
Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer
Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer
Michigan Law Review First Impressions
When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution of domestic violence predictably suffered as a result. But commentators at the time did not anticipate how the Court’s subsequent Confrontation Clause cases would utterly misconceive the nature of domestic violence, producing a flawed understanding of what constitutes a “testimonial” statement. Although the Court’s definition was especially problematic in the domestic violence context, its overly rigid approach finally became intolerable in Michigan v. Bryant, a 2011 case that did not involve domestic violence. In Bryant, the Court resurrected a public–private divide that …
Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited, Michael El-Zein
Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited, Michael El-Zein
Michigan Journal of Gender & Law
The Supreme Court’s recent Confrontation Clause decisions have had a dramatic effect on domestic violence prosecution throughout the United States, sparking debate about possible solutions to an increasingly difficult trial process for prosecutors and the survivors they represent. In this Note, I revisit and reinterpret the suggestion by Professor Sherman J. Clark in his article, An Accuser-Obligation Approach to the Confrontation Clause,1 that we should view the Confrontation Clause primarily as an obligation of the accuser rather than a right of the accused. Specifically, I reevaluate Clark’s proposition using a gendered lens, ultimately suggesting a novel solution to the problem …
Pain, Love, And Voice: The Role Of Domestic Violence Victims In Sentencing, Hadar Dancig-Rosenberg, Dana Pugach
Pain, Love, And Voice: The Role Of Domestic Violence Victims In Sentencing, Hadar Dancig-Rosenberg, Dana Pugach
Michigan Journal of Gender & Law
Criminal law systems throughout the world have evolved to a stage where they no longer ask, "What is the appropriate role of the victim in a criminal trial?" The questions now relate to the scope of the victim's rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the "prosecution stepping into the victim's shoes," whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the …
Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon
Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon
Michigan Journal of Gender & Law
Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal …
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Michigan Law Review First Impressions
The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. …
Sometimes What Everybody Thinks They Know Is True, Richard D. Friedman, Roger C. Park
Sometimes What Everybody Thinks They Know Is True, Richard D. Friedman, Roger C. Park
Articles
This essay responds to D. Davis and W. C. Follette (2002), who question the value of motive evidence in murder cases. They argue that the evidence that a husband had extramartial affairs, that he heavily insured his wife's life, or that he battered his wife is ordinarily of infinitesimal probative value. We disagree. To be sure, it would be foolish to predict solely on the basis of such evidence that a husband will murder his wife. However, when this kind of evidence is cobmined with other evidence in a realistic murder case, the evidence can be quite probative. We analyze …
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Articles
For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …