“AN EXERCISE IN FICTION”:
THE SIXTH AMENDMENT CONFRONTATION
CLAUSE, FORFEITURE BY WRONGDOING,
AND DOMESTIC VIOLENCE IN
DAVIS V. WASHINGTON
REBECCA MCKINSTRY*
I.
INTRODUCTION
Women who are victims of domestic violence are often reluctant to
cooperate with prosecutors by testifying in court against their abusers. Thus,
prosecutors who attempt to introduce out-of-court statements by victims
must face hearsay and Confrontation Clause objections by defense attorneys.
In the spring of 2006, the Supreme Court decided Davis v. Washington,1
holding that prosecutors could not use out-of-court “testimonial” evidence
at trial. This holding has dramatic implications for domestic violence prose-
cutions. The Court’s test for determining which evidence is “testimonial”
requires an objective determination of the primary purpose of the police in-
vestigation that elicited the evidence. This test achieves unpredictable re-
sults, is unnecessary to prevent abuse, and is not grounded in history or case
law. In the same case, the Court articulated the doctrine of forfeiture by
wrongdoing, an important tool that allows prosecutors to circumvent the test
altogether.
Prosecutions of domestic violence offenders present special problems
relating to the Confrontation Clause of the Sixth Amendment. This clause
gives a criminal defendant the right “to be confronted with witnesses against
him,”2 and a system that does not provide this constitutional protection
“calls into question the ‘ultimate integrity of the fact finding process.’” 3
Although a literal reading of the Confrontation Clause suggests that only
testimony made in the courtroom in front of the accused should be admissi-
ble, courts have been reluctant to adopt such a narrow interpretation.4 Be-
cause domestic violence prosecutors “are more likely than others to rely on
out-of-court statements by accusers who may recant or refuse to cooperate
with the prosecution at the time of the trial,”5 they must find ways to admit
this evidence without violating the Sixth Amendment’s re