Domestic Violence and the Supreme Court

Ah! Another visit into case law and the Supreme Court reviewing what can and can't be done when spouses fight.

TONI LOCYAssociated Press Writer
The Supreme Court considered Monday
whether statements made by victims to 911 operators and police officers at crime
scenes should be barred as evidence because they were not made under oath or
subjected to cross-examination by a defendant.
In cases from Washington and
Indiana, the justices focused on whether the rights of Adrian Davis and Hershel
Hammon were violated because their accusers did not testify at their
trials.
The issue is significant because the high court's ruling could affect
the ability of prosecutors to bring criminal charges - particularly in domestic
violence cases - when victims or key witnesses are not willing or not available
to testify.
Justice Ruth Bader Ginsburg pointed out that "many women in these
situations are scared to death" and don't want to testify.
Ginsburg also
recalled that "it wasn't so long ago" that police wouldn't bother trying to
gather evidence to prosecute cases of domestic abuse.
She worried aloud that
if the justices issue a ruling that police consider more trouble than their
efforts are worth, officers might wonder why they should bother pursuing
domestic violence cases.
Lawyers on all sides of the cases - as well as the
Bush administration - want the justices to clarify a 2004 decision that barred
prosecutors' use of statements from victims or witnesses if a defendant did not
have a chance to question them in court.
Justice Antonin Scalia, the author
of the 2004 majority ruling, grilled lawyers for Washington and Indiana about a
defendant's right to confront his or her accuser.
Scalia worried about what
would happen to defendants who were charged with crimes based on "false"
statements from witnesses who never testified. And he wondered whether 911
operators, by asking so many questions of victims, aren't being used by police
as "a prosecutorial device."
James M. Whisman, senior prosecuting attorney in
Seattle, conceded the 911 tape was "powerful" evidence of the abuse victim
Michelle McCottry said she endured at Davis' hands.
"Powerful is part of the
problem," Scalia said. "To hear her voice on the phone ... it makes it an even
more damaging violation" of the defendant's right to confront his accuser.
At
Davis' trial, a judge allowed the tape of McCottry's February 2001 emergency
call to be admitted into evidence but barred police testimony about what
McCottry had said to officers. She disappeared before trial and did not testify
despite a subpoena.
In the other case out of Peru, Ind., Amy Hammon also did
not testify. But a judge allowed a police officer to testify that she had told
him that her husband, Hershel, had thrown her into the glass panel of a gas
heater.
Chief Justice John Roberts appeared to give prosecutors and police
the benefit of the doubt in both cases.
Roberts was skeptical when Davis'
lawyer suggested that prosecutors, armed with powerful 911 tapes, might keep
"bad" witnesses off the stand to win their cases.
And the chief justice said
police officers have mixed motives in trying to protect victims and build
criminal cases.
Jeffrey L. Fisher, who represents Davis, told the justices
it's not always easy to determine when police officers stop protecting victims
and when they begin gathering evidence to support criminal charges.
The cases
are Davis v. Washington, 05-5224, and Hammon v. Indiana, 05-5705.

This one really has me conflicted. I am a Constitutionalist and read the Constitution as the letter of the law. If someone does not testify against you you do not have a case. But domestic violence can be very very bad So bad in fact that the court system has ruled that police officers can no longer have discretionary rights in domestic violence cases. If someone made physical contact against someone else. Even a shove and a walk away. Then we arrest. They have ruled this way because some cases that officers thought the violence was nothing. Escalated into people getting killed. So the question is if a wife tells us her husband punched her. And if we arrest him and take him to jail. Will we get a conviction when the wife doesn't testify? They almost never do, they love their spouse, even to the point of taking lumps from him/her. (I've seen girls arrested for DV too. I call it equality in a new society.)

It is different when they have visible marks. But why should an officer arrest if he can't testify, and can't use witnesses statements without the victim taking a stand? The cooling off in jail period may do the husband good. But if it comes down to that iin all likelyhood the husband will take out more agression on the woman when he finds he can't be judicially punished.

Sounds like we are going to need a reform in the law if the police cannot use victim statements at trial. Why arrest if you can't convict?

And as an aside note. Any determination the Supreme Court makes will be wrong in the end. Permit just statements without someone taking the oath and we bring about presidence that could ruin our judicial system. If we take the Constitutional stand it would be likely that more than a few DV cases will result in death.


We will have to wait and see.