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Family Mediation After Hendershott: The Case For Uniform Domestic Violence Screening And Opt-In Provision In Montana, Eduardo R.C. Capulong
Family Mediation After Hendershott: The Case For Uniform Domestic Violence Screening And Opt-In Provision In Montana, Eduardo R.C. Capulong
Faculty Law Review Articles
In Hendershott v. Westphal, the Montana Supreme Court held that § 40-4-301(2) of the Montana Code Annotated absolutely bars mediation in family law cases involving domestic violence. Yet neither the Court nor the statute prescribes a method by which to screen for such cases. In this article, the author argues that a uniform, statewide screening method is the only way by which to implement this policy. The author also argues that Hendershott should be interpreted narrowly and Montana should allow parties to opt in to mediation and other forms of alternative dispute resolution. The Court's understanding of domestic violence …
A Response To The Sounds Of Silence, Andrew King-Ries
A Response To The Sounds Of Silence, Andrew King-Ries
Faculty Law Review Articles
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]."' 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's originalist approach for its "selective historical research . . . conflation of evidentiary and constitutional forfeiture theories, and . . . vacillation between objective and subjective …
Forfeiture By Wrongdoing: A Panacea For Victimless Domestic Violence Prosecutions, Andrew King-Ries
Forfeiture By Wrongdoing: A Panacea For Victimless Domestic Violence Prosecutions, Andrew King-Ries
Faculty Law Review Articles
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's 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 …
Crawford V. Washington: The End Of Victimless Prosecution?, Andrew King-Ries
Crawford V. Washington: The End Of Victimless Prosecution?, Andrew King-Ries
Faculty Law Review Articles
Domestic violence offenses are difficult to prosecute because the batterer's actions often make the victim unavailable to testify. Since the mid- 1990s, prosecutors have pursued "victimless" prosecutions' to combat the problem.2 Victimless prosecutions seek to introduce reliable evidence without the victim's in-court testimony, often to maintain the victim's safety or to avoid re-victimizing the victim.3 The victimless prosecution is based largely on the admission of hearsay statements that a victim makes to 911 operators, police officers, doctors, nurses, paramedics, and social workers.4 Victimless prosecution has been a highly successful tool in society's efforts to eradicate domestic violence and it is …
True To Character: Honoring The Intellectual Foundations Of The Character Evidence Rule In Domestic Violence Prosecutions, Andrew King-Ries
True To Character: Honoring The Intellectual Foundations Of The Character Evidence Rule In Domestic Violence Prosecutions, Andrew King-Ries
Faculty Law Review Articles
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's recognition of domestic violence. Further, Section III demonstrates how the character evidence ban violates its underlying …