The Domestic Violence Preliminary Hearing

Like Cinderella’s, my adventure ends at midnight when my temporary password vanishes in a shower of electrons. I thank all of the editors for the opportunity to guest-blog here. I want to offer a substantive post on a serious legal topic before I go. I’ve been spending some time in court lately; I tried a felony jury case with my students in October. I’ve been in the academy since 1994, so being in court on a regular basis is a novelty. I’ve seen many domestic violence cases now, and observed first-hand the truth of the conventional wisdom that some victim-witnesses do not wish to participate in a prosecution of their boyfriends or husbands. Prosecutors then face the unappealing alternatives of dropping the charges in a case involving a violent crime, or going forward by putting the victim of a crime under threat of prosecution or contempt.

Something occurred to me that would make these cases more prosecutable; it may well already be in the literature, I offer it more as a notion flowing from a war story than a proposal or fully-baked idea. Here it is: Why not take victim-witnesses directly from the scene of the arrest to a court reporter, with a magistrate present or available, put them under oath, and take their testimony while it is still fresh? Call it a domestic violence preliminary hearing. Then, if the victim recants, the prior testimony can be used at trial (or to induce a plea).

There are a number of objections, none of which seem insurmountable.

The obvious confrontation clause/due process problems can be resolved. WIthin a few hours, defense counsel would have to be appointed, given an opportunity to meet their client and review police reports and the victim’s criminal record, and then of course to cross-examine. In the absence of some special need for additional time to prepare for cross, a few hours to prepare should be consistent with due process. The defendant could be present, in the custody of the arresting officers.

Another potential objection is that taking testimony while the victim is angry is a strategem to frustrate the will and intent of the victim when calm. This renders the notion objectionable, or not, depending one’s answer to the classic question of whether domestic violence is a private matter between the people involved, or just another public criminal offense like robbery or murder where the interest in prosecution is held by the public. If the latter view is correct, as now-common mandatory arrest/no drop policies suggest, then evading the victim’s presumed future intent is unobjectionable because prosecution is not the victim’s call.

One of my brilliant students who worked in this area suggested that another potential problem is that some people in physical danger will hesitate to call the police if they will be unable to halt a future prosecution. If people in physical danger no longer use the police in emergencies, that would increase violence, and therefore be undesirable. Put another way, there is value in arresting someone to halt an immediate assault even if no criminal conviction results. A couple of days after my student made the point, I came up with this response: the objection assumes legally sophisticated victims. A sophisticated victim calling the police only because of her power to end the case later would know she could still stop the process later. Not showing up or recanting at trial might not work anymore, but refusing to talk at the domestic violence preliminary hearing would. So ultimately, a victim who would not go to the authorities if a prosecution will result still has control, and can still call 911.

I’d be interested in hearing whether people who know much more than I do about domestic violence think there is something worth thinking about here. Meanwhile, see you at the happy hour.

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1 Response

  1. Jason says:

    A description of a similar practice in Manhattan appears in Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2, 46 (2006):

    “For every DV arrest, the prosecutor in the complaint room must interview the arresting officer in person and interrogate the defendant in person before drafting the criminal complaint. That prosecutor must attempt to contact and meet with the victim as soon as possible. The prosecutor must further direct the arresting officer to go to the victim’s home immediately to try to obtain her signature on an affidavit corroborating the criminal complaint.” (emphasis added)

    Also, I think a(nother) response to the brilliant student, one that’s not really used enough in these kinds of discussions, is “what do the numbers say?” The kind of effect s/he is describing should also apply to mandatory arrest and no-drop policies. Those have at least as much “once I make a call, the legal system will move forward” effect as the proposed change here, don’t they? Thus, if the numbers say that calls are coming in at the same frequency in mandatory arrest / no-drop jurisdictions, then we might better contend that the same would happen under this proposed regime.