Document Type


Publication Date

Winter 2007

First Page






Source Publication Abbreviation

Pace L. Rev.


Prosecution of domestic violence is extremely difficult, largely due to the fact that defendants are successfully pressuring victims to refuse to testify or to recant their testimony at trial. With its decision in Crawford, the Supreme Court eliminated the ability of prosecutors to use hearsay exceptions to place the domestic violence victim's statements before the jury for their substantive consideration. The Supreme Court also closed this avenue to combat defendants' efforts to avoid liability through coercive pressure on victims. Therefore, the Court's change in the Confrontation Clause law limits the prosecution's arsenal for combating witness intimidation and, at the same time, places an unwieldy Rule 801(d)(1)(A) squarely into play. Unfortunately, the current rule is ineffective in assisting domestic violence prosecutions and preventing witness intimidation. When the defendant's pressure results in recantation, rather than refusal to testify, the Court's forfeiture by wrongdoing remedy to witness intimidation is not available. In this situation, the prosecution is left with a faulty witness and no prior statement. The defendant, on the other hand, is the double beneficiary of the Crawford decision: he has an enhanced right to confront the victim and Rule 801(d)(1)(A) prevents redress of his intimidation of the victim.

The modified rule, however, is able to properly align the positive benefits of the Crawford decision by ensuring the defendant's full confrontation rights and eliminating the incentive to intimidate witnesses. In this way, allowing substantive use of prior inconsistent statements is vital to society's efforts to hold batterers accountable for the violence they inflict on their victims.