Law Commons^™

Opportunity Lost, Opportunity Found: A Proposal To Amend Maine's Rule Of Evidence 404 To Admit "Prior Acts" Evidence In Domestic Violence Prosecutions, Tina Heather Nadeau

Maine Law Review

In 2008, thirty-one people were the victims of homicide in the state of Maine. Even more startling: nineteen of these homicides stemmed from domestic violence, possibly the largest number of domestic-violence-related killings in the state's history. This means that nearly 70 percent of Maine's homicides in 2008 were the result of domestic violence. Amendments made in 2007 (and implemented in February 2008) to Maine's Criminal Code have criminalized particular instances of domestic violence as “enhanced” crimes of violence. This allows prosecutors to consider “prior acts” of domestic abuse when deciding how to charge a criminal defendant accused of a domestic-violence-related …

State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon

Maine Law Review

Darrell Thurston and Suzanne Harmon were romantically involved on an intermittent basis for five years and had one child together. As a result of an altercation that took place at Harmon’s home in Sullivan, Maine, on September 27, 2007, between Thurston and Harmon, Thurston was charged with assault, criminal mischief, and obstructing report of crime or injury. The testimony during the trial illuminated the major factual differences between Thurston’s and Harmon’s accounts of the night the incident took place. Thurston requested a self defense jury instruction based on his version of what had happened, which the trial court ultimately denied. …

Sticks And Stones May Break My Bones, But Words Will Always Hurt Me: Why California Should Expand The Admissibility Of Prior Acts Of Child Abuse, Lindsay Gochnour

Pepperdine Law Review

This Comment seeks to explore the effect that the admissibility of prior bad acts evidence would have on child maltreatment cases and the benefits that would be afforded to child abuse victims if they were provided the same legal protections as victims of other crimes. This Comment argues that expanding the California Evidence Code to allow the admission of prior acts of psychological and emotional child maltreatment would make great progress for the protection of child abuse victims and the prosecution of their (often losing) cases.

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 …

A Hearsay Exception For Physical Abuse, Karleen F. Murphy

Golden Gate University Law Review

This Comment will trace the history of the hearsay rule under both common law and California law. It examines the early use of the common law state of mind hearsay exception regarding statements of fear and physical abuse. It will also discuss the enactment of the California Evidence Code (hereinafter "Code") and the later codification of the state of mind hearsay exception. In addition, it will examine People v. Ruiz, a case which applied the Code's state of mind hearsay exception to prohibit statements regarding the victims' fear of the defendant and the physical abuse which the defendant inflicted on …

Making The Crucial Connection: A Proposed Threat Hearsay Exception, Donna Meredith Matthews

Golden Gate University Law Review

This article discusses how courts admit and exclude threat hearsay in the domestic homicide context and suggests an approach for admission of such evidence. After analyzing the current evidentiary status of the victim's statements regarding threats in homicide cases in which an apparently abusive spouse/partner is accused, I argue for adoption of a new hearsay exception that permits systematic admission of victims' statements concerning threats and violence by the accused. The victim can no longer speak for herself because she has been killed, often because the law is apparently helpless to intervene on her behalf, even when asked. Consequently, the …

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

All Faculty Scholarship

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the …

Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva A. Orenstein

Articles by Maurer Faculty

In 2004, Crawford v. Washington, authored by Justice Antonin 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 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 …

We Have A "Purpose" Requirement If We Can Keep It, James F. Flanagan

Faculty Publications

The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the "purpose" requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by longstanding precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is …

An Argument For Original Intent: Restoring Rule 801(D)(1)(A) To Protect Domestic Violence Victims In A Post-Crawford World, Andrew King-Ries

Pace Law Review

No abstract provided.

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. …

9. Domestic Violence And Child Protection: Confronting The Dilemmas In Moving From Family Court To Dependency Court., Thomas D. Lyon, Mindy B. Mechanic

Thomas D. Lyon

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 …

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 …

Dealing With Complex Evidence Of Domestic Violence: A Primer For The Civil Bench, Jane C. Murphy, Jane H. Aiken

All Faculty Scholarship

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country throughout the last twenty years. The legal approaches taken to protect battered women and control family violence have brought about significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent’s fitness by considering past acts of violence to other family members results in …

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 …

Evidence Issues In Domestic Violence Civil Cases, Jane C. Murphy, Jane H. Aiken

All Faculty Scholarship

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country over the last twenty years.The legal approaches taken to protect battered women and control family violence have resulted in significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and/or visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent's fitness by considering past acts of violence to other family members results in decisions …

The Negative Effects Of Expert Testimony On The Battered Women's Syndrome, Pamela Posch

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Felton V. Felton: A Case Study , James Wilsman

Cleveland State Law Review

The Felton decision ends years of conflict among Ohio's Appellate Districts as to whether or not the higher burden of proof of "clear and convincing evidence" is required in domestic violence cases. This article discusses the issue of whether the court inadvertently violated the constitutional rights of those individuals accused of committing acts of domestic violence. The author suggests that by abrogating the need for corroborating evidence, the Court has, in effect, made it difficult for those individuals who are innocent from protecting themselves against false allegations. Part II discusses the Felton case, while Part III briefly walks through the …

Lessons For The United States: A Greek Cypriot Model For Domestic Violence Law, Joan L. Neisser

Michigan Journal of Gender & Law

The purpose of this Article is twofold: to view the problem of domestic violence victims not wishing to testify against their abusers through the lenses of different feminist perspectives; and to use the Greek Cypriot experience as a model to test the value of these theories when developing legal policies addressing this issue.

Introduction: O.J. Simpson And The Criminal Justice System On Trial, Christopher B. Mueller

Publications

No abstract provided.