Supreme Court takes up domestic assault issue

WASHINGTON — The Supreme Court appears poised to make it far harder to prosecute cases of domestic violence when victims are unwilling or unable to testify in court.

Today, the court will hear the appeals of two men who were convicted of assaulting women based, in one case, on a recorded 911 call, and, in the other, on a police officer's testimony of what the victim told him.

Over the past two decades, prosecutors in domestic-violence and child-abuse cases have relied heavily on testimony by police officers and counselors who interviewed the victims when those victims could not or would not appear in court.

But those prosecutions have a formidable foe in Justice Antonin Scalia. He insists the Constitution guarantees all defendants a right to confront their accusers in court, and he sees no basis for an exception in cases of domestic violence or child abuse.

Two years ago, Scalia wrote an opinion for the court that all but barred the use of out-of-court statements at trials when the victim fails to testify.

The only sure test of whether "testimonial statements" are reliable, Scalia concluded, "is the one the Constitution actually prescribes: confrontation." As he noted, the Sixth Amendment says, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."

His opinion in that case, Crawford v. Washington, sent a bolt through prosecution units around the nation.

"It had a huge impact," said Victoria Adams, the deputy who heads the Family Violence Division for the Los Angeles County district attorney's office. "In most of our cases, the victims are reluctant or afraid to testify."

Since the Crawford decision, she said, prosecutors have relied more on recorded 911 calls and on "spontaneous" statements given to police officers who arrive at a crime scene. The theory is that these statements are uniquely revealing and distinct from formal testimony and, therefore, should be allowed in court.

But the Supreme Court appears ready to close that option in the pair of cases to be heard today. Scalia wrote for a 7-2 majority in the Crawford case, and the two dissenters — Chief Justice William Rehnquist and Justice Sandra Day O'Connor — are now gone.

The National Network to End Domestic Violence and several women's rights groups filed a brief that warns the court about the dire impact of requiring in-court testimony in all cases.

"This would make it very difficult, if not impossible, to prosecute the vast majority of domestic-violence cases," said Joan Meier, a law professor at George Washington University, who helped write the group's brief. The victims are "traumatized and terrorized by the defendants themselves, and they can threaten them so they don't testify." One study found that many victims are threatened with the kidnapping of their children if they testify, she said.

Prosecutors in 27 states have joined with the Bush administration in urging the court to permit the use of 911 tapes and crime-scene statements in domestic-violence cases.

In most states, trial judges permit the use of "spontaneous statements" given to a police officer at a crime scene. Other states specifically allow the use of "excited utterances," such as an emergency call to a 911 operator.

Civil libertarians and criminal-defense lawyers, in briefs filed with the court, urged the justices to uphold the confrontation right set out in the Constitution.

"In this country, we haven't allowed people to be prosecuted based just on what someone said to a cop on the street," said Richard Friedman, a law professor at the University of Michigan, who is representing one of the two men whose cases will be heard today. "There is not a domestic-violence exception to the Constitution."

In Crawford v. Washington, the court overturned the assault conviction of a man who was found guilty based on his wife's recorded statement at a police station. Scalia said such "testimonial statements" may not be used against a defendant if the witness refuses to testify, but he did not define what was a testimonial statement.

The court agreed to hear the two new cases to resolve that question.

In the first case to be heard today, a recorded call to 911 near Seattle provided the testimony that convicted Adrian Davis of violating a restraining order. "He's here jumpin' on me again," a woman later identified as Michelle McCottry told the operator. Her ex-boyfriend was there, she said, and "he's using his fists."

She failed to appear at the trial, but a prosecutor played the tape for the jury. "She left her testimony on the day this happened," the prosecutor said. "It is right here in her voice." The defense lawyer objected, saying Davis had a right to cross-examine the witness.

The Washington State Supreme Court upheld Davis' conviction and said an emergency report or an "excited utterance" is different from the "testimonial statements" to which Scalia referred.

The second case began when two police officers responded to a domestic-disturbance call in Peru, Ind. At first, Amy Hammon appeared too scared to talk. But when one officer took her to the front porch, she said her husband, in a rage, had thrown furniture and a lamp at her and had shoved her into the broken glass on the floor.

She, too, did not testify, but based on her account to the officer, Hershel Hammon was convicted of domestic battery. The Indiana Supreme Court upheld the conviction and said the crime-scene report was not a "testimonial statement."