Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims' out of Court Statements as Substantive Evidence


LET THE TRUTH BE TOLD: PROPOSED
HEARSAY EXCEPTIONS TO ADMIT
DOMESTIC VIOLENCE VICTIMS' OUT OF
COURT STATEMENTS AS SUBSTANTIVE
EVIDENCE

DOUGLAS E. BELOOF* &JOEL SHAPIRO"

I. INTRODUCTION AND BACKGROUND

The hearsay rule that excludes the reliable initial report of abuse by
the domestic violence victim mocks the truth-finding process because
victims' false recantations or failure to appear at trial (hereinafter "no-
show") are the norm in domestic violence cases. Batterers pressure
domestic violence victims to recant, which typically results in the failure of
victims to appear or, alternatively, in testimony at trial that is less reliable
than the victim's initial report of the abuse. When a domestic violence
victim fails to appear for trial because of a batterer's coercion, fear of the
batterer, or the potentially drastic consequences of leaving the batterer, the
hearsay rule promotes the failure of the criminal case by excluding the
initial report of abuse. As the hearsay rule excludes out of court statements
of abuse, recantation or no-show by the victim results in no charge,
dismissal, or acquittal.

In most jurisdictions, the hearsay rule prohibits the use of domestic
violence victims' initial report of abuse as substantive evidence. Reform
efforts within the criminal justice system designed to address the epidemic
of domestic violence have failed to address hearsay problems' and instead

* Douglas E. Beloof, J.D., Associate Professor Law, Lewis & Clark Law School;

Director, Crime Victim Law Institute.

Joel Shapiro, J.D., Member Oregon State Bar.

In the wake of the O.J. Simpson trial, there has been some discussion of
modifying hearsay rules to allow prior incidents of domestic violence into evidence. See,
e.g., Linell A. Letendre, Note, Beating Again and Again and Again: Why Washington Needs
a New Rule of Evidence Admitting Prior Acts of Domestic Violence, 75 Wash. L. Rev. 973
(2000); Neal A. Hudders, Note, The Problem of Using Hearsay In Domestic Violence Cases:
Is a New Exception the Answer? 49 Duke L.J. 1041 (2000); Sara J. Lee, Comment, The
Search for Truth: Admitting Evidence of Prior Abuse in Domestic Violence Cases 20 U.
Haw. L. Rev. 221 (1998); Lisa Marie DeSanctis, Bridging the Gap Between the Rules of
Evidence and Justice for Victims of Domestic Violence 8 Yale J.L. & Feminism 359 (1996);
Lisa A. Linsky, Use of Domestic Violence History Evidence in the Criminal Prosecution: A
Common Sense Approach, 16 Pace L. Rev. 73 (1995). California has passed a hearsay rule
exception to address this concern. See Cal. Evid. Code §1370 (West Supp. 1999). While



2 Columbia Journal of Gender and Law [Vol. 11:1

have focused on adoption of other informal and formal policy initiatives.2

This article argues that given that victims recant or fail to appear at trial in
the majority of domestic violence cases, existing exceptions to the hearsay
rule are inadequate to achieve truth-finding in these cases. The article
proposes and analyses the constitutionality of two hearsay exceptions that
provide solutions to the problem of the inadmissibility of the victim's initial
report. The proposed exceptions would greatly enhance truth-finding.

The two proposed hearsay exceptions focus on the admissibility of
unswom prior inconsistent statements made by domestic violence victims.
The first proposal is designed to address the problem of recantation. It
alters the definition of hearsay to allow a domestic violence victim's
unsworn out of court statements to be used as substantive evidence, not just
for impeachment, when the victim is available for cross-examination at
trial. A minority of state jurisdictions admit unsworn prior inconsistent
statements as substantive evidence in all criminal cases. The exception
targets the remaining majority of jurisdictions, including federal and most
state courts, and argues that these jurisdictions should not continue to deny
the admissibility of prior inconsistent statements of domestic violence
victims in domestic violence cases.

The second proposed modification to the hearsay rule addresses the
problem of domestic violence victim no-show at trial. This new hearsay
exception provides criteria for admissibility when the victim is not present
at trial. The exception allows a judge to consider criteria of reliability in
determining whether a domestic violence victim's report, made within
twenty-four hours of the incident, is admissible. If reliable, the statement
can be admitted whether or not the victim shows up for trial.

Next, the article addresses the special issues of "unavailability,"
"victim memory loss," and "sufficiency of evidence to convict" within the
context of the proposed amendments. Finally, the proposed hearsay
exceptions are discussed in the context of the ongoing debate about the
wisdom of mandatory prosecution procedures in domestic violence cases.

II. HOW THE HEARSAY RULE DEFEATS TRUTH-FINDING IN
DOMESTIC VIOLENCE CASES.

Evidence rule changes have been aggressively pursued to aid in
truth determination in other types of crimes against women and children.

this is undoubtedly a subject worth addressing, it is not the hearsay problem that impacts the
greatest number of domestic violence cases.

2 Policy changes include mandatory arrest, no-drop policies (i.e., refusal to dismiss

the case at the request of the victim), deferred sentencing programs and uniform probation
conditions for offenders. Virtually all of these policy efforts to intervene in battering
relationships are readily thwarted by hearsay rule limits, with the exception of mandatory
arrest of the batterer.



Let the Truth Be Told

Examples include rape shield laws and accommodations for child testimony
in child sexual assault cases. Surprisingly, in the context of a feminist law
movement accustomed to altering rules of evidence to achieve truth-finding,
there has been no similar effort to address the problem of the hearsay rule in
domestic violence cases.

Many batterers continue to prevent the truth from being told in the
courtroom by instilling fear in their victims. The legal system provides the
coerced victim ample opportunity to prevent the introduction of reliable
evidence. When a victim recants or fails to appear at trial, the victim's
words or actions combine with the hearsay rule to exclude the victim's
reliable out of court statements. In turn, exclusion results in inadequate or a
lack of substantive evidence with which to prove the offense. Since the
hearsay rule excludes reliable prior statements of the abuse, victim
recantation and no-show at trial results in failure to charge, dismissal, or
acquittal in cases of domestic violence.

Non-cooperation by recantation or failure to appear at trial is an
epidemic in domestic violence cases. Persons qualified to give expert
testimony at trial on domestic violence, including psychologists,3

counselors,4 police detectives,5 directors of battered women's shelters, 6 and
victim advocates, 7 consistently testify that, in their experience, it is
commonplace for domestic violence victims to recant or minimize initial
reports of abuse. The head of the Family Violence Division of the Los
Angeles District Attorney's Office estimates that ninety percent of domestic
violence victims recant.8 A psychologist specializing in the treatment of

3 See, e.g., People v. Gomez, 85 Cal. Rptr. 2d 101, 105 (Cal. Ct. App. 1999)
(psychologist testified that "about 80 percent of the time a woman who has been sexually
assaulted by a boyfriend or husband or lover will recant, change or minimize the story.");
People v. Lafferty, 9 P.3d 1132, 1134 (Colo. Ct. App. 1999), cert. denied (Oct. 10, 2000)
(psychologist testified that the significance of the passage of time is that over time a victim
may recant); Odom v. State 711 N.E.2d 71, 72 (Ind. Ct. App. 1999) (psychologist testified
that it is not unusual for a domestic violence victim to recant).

4 See, e.g., People v. Acosta, 84 Cal. Rptr. 2d 370, 374 (Cal. Ct. App. 1999)
(finding that abused victims often recant accusations made against their partners).

5 See, e.g., State v. Perry No. 58607, 1991 WL 97404, at *3 (Ohio Ct. App. June
6, 1991) (police detective testified that it is not unusual for domestic violence victims to
recant).

6 See, e.g., State v. Clark 926 P.2d 194, 204 (Haw. Ct. App. 1996) (executive

director of crisis shelter testified that domestic violence victims "often" recant accusations of
abuse).

7 See, e.g., State v. Butler, No. 17564-2-Ili, 1999 WL 643368, at *2 (Wash. Ct.
App. Aug. 24, 1999) (advocate testified that it is common for domestic violence victims to
recant); State v. Griffin, 564 N.W.2d 370, 374 (Iowa 1997) (advocate testified that it is
common for domestic violence victims to refuse to testify against the batterer).

8 Videotape: Social Advocacy and Domestic Violence (UCLA School of Law

1996) (on file with Harvard Law School Library) (a class presentation given by Donna Wills,
Head Deputy, Family Violence Division, Los Angeles County District Attorney).

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Columbia Journal of Gender and Law [Vol. 11:1

battered women has estimated the non-cooperation rate to be eighty
percent.9 Similarly, one judge reports that in as many as eighty percent of
domestic violence prosecutions the victim refuses to cooperate at trial.' 0

Increasingly, courts have taken judicial notice of the unreliability of the
domestic violence victim's recantations. 1" Thus, recantation is the norm
rather than the exception, in domestic violence cases. This is hardly
surprising. Batterers put hydraulic pressures on domestic violence victims
to recant, drop the case, or fail to appear at trial.

The reasons that victims do not cooperate are closely related to the
victim's need for physical and emotional survival and the safety of her
children. "Many domestic violence professionals are becoming
convinced.. .that the primary reason women stay with the batterer is out of
fear."'12 Victims have good reason to be afraid. Many women stay in
battering relationships because when they have tried to leave they have
been beaten. 3 Leaving a batterer is a very risky undertaking. Victims have
reason to fear financial ruin.' 4 The leading cause of homelessness among
women and children is domestic violence. Studies reveal that domestic
violence has led to the circumstances of between thirty-five and fifty
percent of all homeless women and children. 15 In addition to the toll

9 Gomez 85 Cal Rptr. 2d. at 103.
10 David M. Gersten, Evidentiary Trends in Domestic Violence 72 Fla. B.J. 65, 65

n.3 (1998).
11 However, judicial notice of the phenomenon of recantation in domestic violence

cases does not render the unswom prior inconsistent statement admissible for substantive
purposes. "That a matter is judicially noticed means merely that it is taken as true without the
offering of evidence by the party who should ordinarily have done so." 9 John H. Wigmore,
Wigmore on Evidence § 2567(a) (3d ed. 1940). For cases in which courts have recognized
the particular unreliability of domestic violence recantations, where no proof was presented
on the point, see, e.g., State v. Allender, No. 7464, 1988 WL 94027, at *8 (Ohio Ct. App.
Sept. 6, 1988) (Milligan J., dissenting) ("the plain fact is that in many, many domestic
disputes the 'kiss and forgive' syndrome appears to the frustration of both law enforcement
attempting to perform its legal responsibilities and the ultimate health and safety of the
participants. There is a sense in which an experienced police officer is never surprised when
a domestic violence victim recants or waters down his [sic] story."); Lakewood v. Pfeifer,
583 N.E.2d 1133, 1137 (Lakewood Ohio Mun. Ct. 1991) ("It is not uncommon for the
complaining witness to attempt to have the case dismissed or recant the previous statement
that was the basis of the criminal charge."); State v. West, 667 A.2d 540, 543 (Vt. 1995)
(stating that recantation is common).

12 Margi Laird McCue, Domestic Violence 113-14 (1995).

13Seeid. at 115.
14 See id. at 82. Many battered women have no access to checking accounts

(thirty-four percent) or charge cards (fifty-one percent). Id.
15 See id. at 106-07.



2002] Let the Truth Be Told 5

homelessness takes on women and children, it "places an enormous
financial and physical strain on our social services system."' 6

While it is possible in a particular case that the recantation is true
and the initial report is not, hearsay rules and exceptions are founded upon
generalities. Thus, the prohibition against the use of prior inconsistent
statements as substantive evidence is premised on the notion that in the
majority of all categories of cases a statement under oath is more reliable
than an unsworn prior inconsistent statement. A nuanced alternative is,
nevertheless, appropriate in domestic violence cases because the reliability
of initial statements in most domestic violence cases justifies the admission
of the victims' out of court statements in all domestic violence cases.
Admissibility is justified because, generalizing over all domestic violence
cases, the prior inconsistent statement is likely to be more reliable than the
statement under oath in a majority of cases. Of course, the jury remains
free to determine which version of events, the prior inconsistent statement
or the testimony under oath, is true.

The hearsay rule limits the substantive use of out of court
statements because "at the heart of the hearsay doctrine is the conviction
that out of court statements are generally an inferior kind of proof.' ' 7

"Inferiority" comes from the hearsay risks of mis ?erception, faulty
memory, risk of insincerity, and narrative ambiguity.' Three cherished
procedural safeguards typically operate to aid in truth-finding and in
ensuring the impeachment of inferior statements: cross-examination, oath
and witness demeanor. Ironically, the hearsay rule, as applied to the out of
court statements of domestic violence victims, defeats the value of
reliability. The hearsay rule is self-defeating because its application results
in the admission of unreliable recantations and exclusion of reliable initial
reports. Thus, the value of reliability (that is the legitimate basis of the
hearsay rule) is suppressed.

Adjustments should be made to the hearsay rule to take into
account the dominant phenomenon of recantation and no-show in domestic
violence cases. Exceptions to the hearsay rule are created when "some
special reason appears to suppose [statements] are trustworthy or reliable,
or [when statements] should be admitted on account of some special
need."'19 The phenomenon of recantation and failure to appear by domestic
violence victims presents a case of special need for admissibility. Initial
reports of abuse made by domestic violence victims are typically more
reliable than the victim's testimony under oath, because the passage of time

16 id.

17 Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 8.2, at 783 (2d ed.

1999).

"8 See id. at 783-86 (because hearsay rules should promote reliability).

'9 Id. at 785.



Columbia Journal of Gender and Law

after the victim's initial report allows the hydraulic pressures of domestic
violence to bear down upon the victim, resulting in recantation and no-show
at trial. While out of court statements are generally considered an inferior
kind of proof, in cases of domestic violence the victim's out of court
statements are typically a superior form of proof. Hearsay exceptions
should allow the use of the initial report as substantive evidence because
hearsay rules were created to promote reliability.

Continued exclusion of prior statements by victims in domestic
violence cases means placing wishful thinking ahead of reality. This is
because it is highly probable that a domestic violence victim's initial
disclosure, not allowed into evidence, is more reliable than the victim's
recantation made under oath. The pressures brought to bear on a victim of
domestic violence make it highly probable that a recanting domestic
violence victim will be lying under oath. The oath, as a tool for assuring
reliability, cannot adequately compete with the pressures the batterer uses
on the domestic violence victim. Clinging to the requirement of the oath as
predicate for admissibility of the domestic violence victim's initial report
requires naively blinding oneself to the greater forces at work upon the
victim. The sanctions of the batterer are simply surer, swifter, more
devastating, and more real than speculative court sanctions for perjury or
contempt. Given this reality, excluding unsworn prior inconsistent
statements of domestic violence victims from use as substantive evidence
creates a high probability that the truth will never be presented to the jury.

Hearsay rules were created long before the development of a
sophisticated understanding of domestic violence, and well before it was
understood that recantation is the rule rather than the exception in domestic
violence cases. In light of this new understanding, hearsay rule exceptions
are needed to accommodate truth-finding. Unfortunately, the existing
hearsay exceptions are inadequate for assuring the admissibility of the
crime victim's initial report of abuse.

Ill. THE INADEQUACY OF TRUTH-FINDING: EXISTING
HEARSAY EXCEPTIONS IN DOMESTIC VIOLENCE CASES

The hearsay exceptions relevant to domestic violence are those
based on the spontaneous declaration rationale, such as "excited
utterances," "present sense impressions," "past recollection recorded," or
statements of "state of mind." Each of these exceptions, however, is
narrowly defined, and the prior statement may not satisfy the criteria of any
single exception. Due to batterer coercion, an additional avenue of
admissibility, constructive waiver by the defendant of the hearsay rule and
confrontation clause, will rarely be available.

[Vol. 11: 1



Let the Truth Be Told

A. The Inadequacy of the Excited Utterance Exception

In jurisdictions where prior inconsistent statements are not
admissible as substantive evidence, prosecutors may attempt to admit the
statements pursuant to the "excited utterance exception." 20  The excited
utterance hearsay exception will admit a statement that relates to a startling
event or condition if made while the declarant was under the stress of
excitement caused by the event or condition. It is well-established in
evidence law that such an occurrence "stills the reflective faculties and
removes their control, so that the utterance which then occurs is a
spontaneous and sincere response.. .,,2 1 To admit a statement under this
exception, the proponent of the evidence must establish: 1) that the
declarant was subjected to a startling event or condition; and 2) that the
declarant was in a state of excitement when the statement was made. With
regard to a domestic assault, this second finding may be difficult to make.
Although a violent assault is undoubtedly a stressful and startling event, the
victim may respond instead by withdrawing, becoming sullen, or going into
shock, as opposed to conveying "excitement." In such an instance, failure
of the declarant to be excited presents an arbitrary barrier to admissibility.

B. The Inadequacy of the Present Sense Impression Exception

To satisfy the federal hearsay exception of present sense impression
and be admitted into evidence, the statement must have been made "while
the declarant was perceiving the event or condition, or immediately
thereafter." 22 This requirement places significant limits on the utility of the
present sense impression exception as a vehicle to admit a domestic
violence victim's prior inconsistent statement. This exception has a strict
time limit defined as a time period nearly contemporaneous between the
events described and the making of the statement.

Most domestic assaults do not occur in public, therefore the
defendant (who is shielded by the Fifth Amendment privilege), is the only
witness to hear the victim's statements during or immediately after the
event.23 Therefore, the exception is only rarely available as a tool to admit

20 The federal rules provide: "The following are not excluded by the hearsay rule,
even though the declarant is available as a witness: (2) Excited utterance. A statement
relating to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition." Fed. R. Evid. 803(2).

21 6 John H. Wigmore, Wigmore on Evidence § 1747 (James H. Chadboum rev.

1976).
22 The federal rules provide: "Present sense impression. A statement describing or

explaining an event or condition made while the declarant was perceiving the event or
condition or immediately thereafter." Fed. R. Evid. 803(1).

23 See Donna M. Mathews, Making the Crucial Connection: A Proposed Threat
Hearsay Exception 27 Golden Gate U. L. Rev. 117, 138 (1997).

2002]



Columbia Journal of Gender and Law

evidence of a domestic violence assault.24 In those rare instances in which
the present sense impression exception applies, it is further limited to the
description of events. Thus, admissibility of other relevant facts, such as a
description of the nature of injuries to the victim, is problematic.

C. The Inadequacy of the State of Mind Exception

Much like the problems with the present sense impression
exception, the state of mind exception imposes severe time and content
limitations for admissibility.25  The most significant limitation on
admissibility is that evidence admitted under this exception is only relevant
to show the state of mind of the declarant. The exception cannot be used as
substantive proof of the events surrounding the declarant's state of mind.
For example, assume the admission into evidence of a statement of a
domestic violence victim that, "I was afraid because the defendant had burst
through the door holding a knife." The statement is properly admitted under
the state of mind exception only to prove that the victim was fearful, and
not as proof that the defendant burst through the door brandishing a knife.
As a result, when the domestic violence victim recants, there is no
substantive evidence of the assault available to the trier of fact.

D. The Inadequacy of the Past Recollection Recorded Exception

The past recollection recorded exception to the hearsay rule is
26based on notions of necessity and trustworthiness. A prerequisite to use of

the exception is an insufficient present memory to testify "fully and
accurately." Once this is established, the party offering the recorded
recollection must use the writing to try to refresh the witness' memory. It is
only when there is a substantial inability to recollect that the statement may
be considered as proof. Another requirement is that the recorded statement
represents the firsthand knowledge of the witness while the matter was

24 See id.

25 The federal rules provide: "Then existing mental, emotional or physical

condition. A statement of the declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily
health), but not including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or terms of declarant's
will." Fed. R. Evid. 803(3).

26 The federal rules provide: "Recorded recollection. A memorandum or record

concerning a matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness' memory and to reflect that
knowledge correctly. If admitted, the memorandum or record may be read into evidence but
may not itself be received as an exhibit unless offered by an adverse party." Fed. R. Evid.
803(5).

[Vol. 11: 1



Let the Truth Be Told

fresh in the witness' memory. The witness must make a live endorsement
by testifying in court that the writing reflects their firsthand knowledge.
Finally, the statement must have been made or adopted by the witness.

There are several problems with using the past recollection
recorded exception to provide substantive evidence of domestic violence.
The main problem is that the "forgetful" domestic violence victim must
make a live endorsement of the statement in the trial. The failure to endorse
the statement is fatal to the statement's admissibility as substantive
evidence. For a victim who is recanting because of a loss of memory, an
endorsement of a statement inculpating the alleged batterer is unlikely to
occur. Thus, the past recollection recorded exception is of little benefit
because control over the admissibility of the prior inculpating statement is
left in the hands of the domestic violence victim, who is susceptible to
batterer coercion.

E. The Inadequacy of the Batterer's Constructive Waiver of Hearsay
Rules Confrontation Rights

If a defendant is responsible for the unavailability of a witness, the
defendant constructively waives the right to hearsay rule protection and the
right of confrontation. The result is that prior statements of the witness can
be admitted. 7 If proof is made to the trial court that the domestic violence
defendant played a role in the making the victim unavailable, or in coercing
a recantation from the victim, the prior inconsistent statement would be
admissible. However, domestic violence victims, for the same reasons they
recant, typically will not volunteer evidence of this nature. Thus, absent
evidence of threats or coercion of the victim presented by other witnesses,
prior inconsistent statements of the victim will not be admissible by
constructive waiver of hearsay rule and confrontation rights.

For all the foregoing reasons, existing hearsay exceptions are
inadequate to assure the admissibility of victims' prior reports of violence.
The hearsay rule still stands in the way of truth-finding in domestic violence
cases. Additional exceptions are needed to assure that reliable evidence
essential to truth-finding is admitted.

27 See, e.g., U.S. v. Cherry. 217 F.3d 811 (10th Cir. 2000); U.S. v. Emery 186 F.3d

921 (8th Cir. 1999); U.S. v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); U.S. v Aguiar, 975 F.2d
45 (2d Cir. 1992).

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Columbia Journal of Gender and Law

IV. THE TWO PROPOSED HEARSAY EXCEPTIONS

A. The First Exception: Admission as Substantive Evidence of Unsworn
Prior Inconsistent Statements of Domestic Violence Victims
Available for Cross-Examination

The roadblock to intervention in violent relationships created by the
hearsay rule should be removed, to the extent constitutionally permissible.
Fortunately, the hearsay rule roadblock can be moved aside while
complying with constitutional commands. The first exception, proposed
below, is designed to address the problem of recantation, by allowing the
prior statement of the domestic violence victim in as substantive evidence
when she is available for cross-examination. The second exception,
proposed below, is designed to address the problem of victim no-show or
recantation by admitting the prior statement if certain criteria to ensure
reliability are met, whether the victim is available for cross-examination or
not.

1. The Exception or Exemption

The first proposed modification to the hearsay rule is to allow the
unsworn prior inconsistent statements of a domestic violence victim to be
admissible as substantive evidence if the victim is available for cross-
examination. The strict limitation on admissibility is that only a statement
made by a domestic violence victim is admissible.28 The proposal can be
accomplished in two different ways. First, the statements could be
admissible as a non-hearsay exemption. Using the federal rule as context,
the admissibility of statements stated as a non-hearsay exemption is:

Proposed Fed. R. Evid. 801(d)(1) Prior Statement by Witness.
[A statement is not hearsay if] The declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement, and the statement is ...(D) made by a domestic
violence victim, is inconsistent with the victim's testimony, and
during the testimony the victim is given an opportunity to explain
or deny the statement or at the time the statement is offered in
evidence the victim has not been excused from giving further
testimony and can be recalled for the purpose of explaining or
denying the statement.

28 This is not the only context in which a victim is identified prior to conviction.

The identification of a victim for purposes of evidentiary and other procedural rules is
commonplace. See Douglas E. Beloof, Victims In Criminal Procedure 41-43 (1998).

[Vol. 11: 1



Let the Truth Be Told

Second, instead of being drafted as non-hearsay, the proposal can
be constructed as an exception to the hearsay rule:

Proposed Fed. R. Evid. 803 Hearsay Exceptions; Availability
of Declarant Immaterial. The following are not excluded by the
hearsay rule, even though the declarant is available as a witness:
(24) a prior unswom statement of a domestic violence victim
inconsistent with the victim's testimony, where during the
testimony the victim was given an opportunity to explain or deny
the statement or at the time the statement is offered in evidence
the victim has not been excused from giving further testimony
and can be recalled for the purpose of explaining or denying the
statement.

The argument against the substantive use of prior inconsistent
statements by witnesses available for cross-examination at trial centers on
the lack of reliability of a prior statement which is not made under oath.
Also, the prior statement is recalled from memory, rather than a trial
transcript, thus the recounting of the statement might be inaccurate. On the
other hand, advocates in favor of admitting all prior inconsistent statements
of all witnesses in all cases argue that the witness is present in court and
subject to cross-examination, so any dangers accompanying the use of the
statement as substantive evidence are sufficiently mitigated. A growing
number of states have adopted the view that prior inconsistent statements
are always admissible as substantive evidence. 29 Other states allow prior
inconsistent statements to be used as substantive evidence for any purpose
only when the statements meet certain criteria.30 However, other states
exclude the use of unsworn prior inconsistent statements for any substantive
evidence purpose.31 Finally, the Federal Rules of Evidence and a majority

29 See Alaska R. Rev. 801(d)(1)(A)(i)-(ii); Ariz. Stat. Rev. R. 801(d)(1)(i)-(iii);

Cal. Evid. Code § 1235 (West 1966); Colo. Stat. Rev. Rule 801(d)(1)(A); Del. R. Rev. Rule
801(d)(1)(A); Kan. Stat. §60-460(a); Ky. Stat. Rev. Rule 801A(I); Mont. R.Rev. Rule 613;
Nev. Stat. § 51.035(1)(a); R.I. R. Rev. Rule 801(d)(1)(A)-(C); S.C. R. Rev. Rule
801(d)(l)(A); Utah R. Rev. Rule 801(d)(1)(A); Wis. Stat. § 908.01(4)(a)(1); Gibbons v.
State 286 S.E.2d 717 (Ga. 1982), cited with approval in Holiday v. State, 534 S.E.2d 411
(Ga. 2000).

30 See Conn. R. Rev. § 8-5; Haw. Stat. § 626-1, R. 613(b)(l)-(2); Ill. Stat. Ch. 725

§ 5/115-10.1 (written or electronic recording); N.J. Stat. Rev. N.J. R. Evid. 803(a)(I)(A)-(B)
(where offered by party other than proponent of the evidence; proponent may offer if
recorded, in writing and signed, or under oath); Md. R. Rev. Rule 5-802.1(a)(1) (written and
signed by declarant or recorded in substantially verbatim fashion by electronic recording or
stenographic means); Mo. Stat. § 491.074 (for certain criminal offenses); N.M. R. Rev. Rule
1-801(D)(1)(a) (where witness under oath); Pa. Stat. Rev. Rule 803.1(1) (signed written

statement, recording or under oath); State v. Whelan, 513 A.2d 86 (Conn. 1986) (signed
statement only).

31 See Ala. R. Rev. Rule 801(d)(1)(A); Ark. R. Rev. Rule 801(d)(1) (criminal cases
only); Ind. Stat. Rev. Rule 801(d)(l)(A); La. C. E. Art. 801(D)(l)(a); Me. R. Rev. Rule
801(d)(l)(A); Mass. Stat. 233 § 23; Miss. R. Rev. Rule 801(d)(1)(A); Neb. Stat. §27-

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Columbia Journal of Gender and Law

of state evidence codes disallow the use of prior inconsistent statements as
substantive evidence unless used for purposes of identification only.32

The proposed hearsay exception differs from the broad prior
inconsistent statement exception that exists in a minority of jurisdictions,
because these jurisdictions allow the prior inconsistent statements of all
witnesses to be admitted as substantive evidence in all cases. The proposed
exception admits only a domestic violence victim's prior statement, and
only in a domestic violence case. The proposed exception is directly
limited by its rationale: that in domestic violence cases, victim recantations
are the norm, and recantations are typically more unreliable than the initial
report of abuse. The proposed limited hearsay exception is needed in cases
of domestic violence in the jurisdictions that do not have a general hearsay
exception which allows the substantive use of all prior inconsistent
statements. This hearsay exception is needed because in domestic violence
cases, unlike every other class of cases: recantation is the norm; the unique
dynamics of domestic violence render the prior statement the most reliable
statement available, and; there is typically insufficient reliable proof before
the trier of fact without the prior statement.

2. The Constitutionality of the First Proposed Exception

The use of an unsworn prior inconsistent statement as substantive
evidence is constitutional if the domestic violence victim is present at trial
and subject to cross-examination. In California v. Green, the United States
Supreme Court reviewed the constitutionality of a provision of the
California Evidence Code which allowed for the admissibility of the prior
inconsistent statements of all witnesses who were present at trial and
subject to cross-examination.33 The Court held that the Confrontation

801(4)(a)(i); N.J. Stat. Rev. Rule 63(1)(a); N.Y.C.P.L.R. Rule 4514; N.C. Stat. Evid. § 8C-1,
Rule 801(c); Okla. Stat. T.12 § 2801(4)(a)(1); Va. Stat. § 8.01-403.

32 See Fed. R. Evid. 801(d)(1)(A), (C) (allowing use for prior identification only);

Fla. Stat. § 90.801(1), (2)(a), (c); Idaho R. Rev. Rule 801(d)(1)(A), (C); Iowa R. Rev. Rule
801(d)(1)(A), (C); Mich. R. Rev. M.R.E. 801(d)(1)(A), (C); Minn. Stat. Rev. Rule
801(d)(1)(A) (for identification after court examination of reliability and statement made
while perceiving event or immediately thereafter); N.H. R. Rev. Rule 801(d)(1)(A), (C);
N.D. R. Rev. Rule 801(d)(1)(i), (iii) (criminal cases only); Ohio Stat. Rev. Rule
80 1(D)(l)(a), (c) (only after showing of reliability); Or. R. Rev. Rule 801(4)(a)(A), (C); S.D.
Evid. Code 801(d)(1), (3); Tenn. R. Rev. Rule 803(1.1); Tex. R. Rev. Rule 801(e)(l)(A),
(C); Vt. R. Rev. Rule 801(d)(1)(A), (C); Wash. R. Rev. E.R. 801(d)(1)(i), (iii); W. Va. R.
Rev. Rule 801(d)(1)(A), (C);Wyo. R. Rev. Rule 801(d)(1)(A), (C); State v Newcomb, 663
A.2d 613 (N.H. 1995).

33 See California v. Green, 399 U.S. 149 (1970). Section 1235 provided that
"evidence of a statement of a witness is not made inadmissible by the hearsay rule if the
statement is inconsistent with his testimony at the hearing and is offered in compliance with
Section 770." Cal. Evid. Code § 1235 (West 1966). Section 770 required that the witness
be given an opportunity to explain or deny the prior statement at some point in the trial. See
Green 399 U.S. at 150 n. 76 (citing Cal. Evid. Code § 770).

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Let the Truth Be Told

Clause34 does not require excluding from evidence prior statements of a
witness who concedes making the statements, and who may be asked to
defend or otherwise explain the inconsistency between his prior and his
present version of the events in question and who is fully available for
cross-examination. 35 The Court viewed California's choice to admit prior
inconsistent statements as a "considered choice by the California legislature
between two opposing positions concerning the extent to which witnesses'
prior statements may be introduced at trial without violating hearsay rules
of evidence. 36 In Green, the Court pointed out that most evidence scholars
support the admissibility of prior inconsistent statements if the witness is
subject to cross-examination. 37 The California approach is constitutional
because most of the hearsay dangers are largely non-existent where the
witness testifies at trial and is present for cross-examination.

B. The Second Exception: Admission as Substantive Evidence of Prior
Statements of Abuse, Availability of Domestic Violence Victim
Immaterial

1. The Exception

The authors, and others, have successfully pursued the adoption of
the second proposed hearsay exception in the State of Oregon. 3

1 It is
designed primarily to address the problem of domestic violence victim no-
show at trial and, secondarily, recantation. The exception admits prior
statements of a domestic violence victim only after the trial judge has
screened the statements for sufficient indicia of reliability. If reliable, the
statements come in as evidence whether or not the victim is present at trial.
Cast in the structure of the Federal Rules of Evidence the proposal is:

The Supreme Court affirmed the continued constitutionality of the California
approach in U.S. v. Owens, 484 U.S. 554, 559 (1993), affgGreen, 399 U.S. 149.

34 The Sixth Amendment of the United States Constitution provides in pertinent
part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted
with the witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence." U.S. Const. amend. VI.

" See Green 399 U.S. at 154-55.
36Id. at 154.

37 See id. at 155 n.6 and accompanying text (listing Wigmore, McCormick,
Maguire, and Morgan as proponents of the admissibility of unsworn prior inconsistent
statements when the declarant is subject to cross-examination).

38 Or. Rev. Stat. § 40.460(26). For work on passage of this exception, the authors
thank Linda Beloof, Gina McClard, Dale Penn, and the Oregon Department of Justice.

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14 Columbia Journal of Gender and Law [Vol. 11: 1

Proposed Fed. R. Evid. 803(24) The following are not
excluded by the hearsay rule, even though the declarant is
available as a witness: (a) A statement that purports to narrate,
describe, report or explain an incident of domestic violence, as
defined by [insert federal or state definition of domestic violence
here], made by a victim of the domestic violence within twenty-
four hours after the incident occurred, if the statement:

(A) Was recorded, either electronically or in writing, or
was made to a peace officer [as defined by federal or
state statute], corrections officer, youth corrections
officer, parole and probation officer, emergency medical
technician or firefighter; and

(B) Has sufficient indicia of reliability.

(b) In determining whether a statement has sufficient indicia of
reliability under paragraph (a) of this subsection, the court shall
consider all circumstances surrounding the statement. The court
may consider, but is not limited to, the following factors in
determining whether a statement has sufficient indicia of
reliability:

(A) The personal knowledge of the declarant.

(B) Whether the statement is corroborated by evidence
other than the statements that are subject to admission
only through this subsection.

(C) The timing of the statement.

(D) Whether the statement was elicited by leading
questions.

(E) Subsequent statements made by the declarant.
Recantation by a declarant is not sufficient reason for
denying admission of a statement under this subsection
in the absence of other factors indicating unreliability.

The requirements of this hearsay exception ensure reliability.
Further, the threshold requirements of the exception must be met before a
judge admits the statement. First, the statement must be made by a victim



Let the Truth Be Told

of domestic violence, a class of witnesses likely to recant. In addition to the
limitation of the exception to statements of domestic violence victims, any
statement made after twenty-four hours is automatically excluded from the
exception. 9 This threshold requirement exists because courts have used the
twenty-four hour window as a benchmark of reliability in various
contexts.40 Another threshold requirement is that the statement must be
recorded electronically or made in writing or must be made to a limited
category of state officials or medical personnel. An electronic recording or
writing made by the witness at the time of, or shortly after the incident, is
considered reliable by a number of jurisdictions.4' A statement made to
state officials or emergency medical personnel is more likely to be reliable.
This categoty of persons is more likely to accurately convey the content of
the victim's statement at trial because, in the context of domestic violence,
they are disinterested witnesses. The text of the domestic violence hearsay
exception sets out a number of factors that "[t]he court may consider, but is
not limited to... in determining whether a statement has sufficient indicia of
reliability. '4 2 The enumerated factors of reliability are not exclusive and
the court may rely on other factors in assessing reliability. However,
recantation is not a sufficient reason for a finding of unreliability (and
therefore inadmissibility) for the obvious reason that the exception itself is
necessitated by and predicated upon the prevalence of false recantation in
domestic violence cases.43

2. The Constitutionality of the Second Proposed Exception

a. Victim Available for Cross-Examination

As with the first proposed exception, under the second proposed
exception, when the victim is available for cross-examination, the
admissibility of the prior inconsistent statement of the victim is plainly

'9 Of course, if an abuser prevented the victim from reporting the abuse within
twenty-four hours, the period would be twenty-four hours after the victim became able to
report the domestic violence incident. This comports with the logic of the constructive
waiver of Confrontation Clause rights discussed, supra, note 34, and accompanying text. The
defendant should not be able to circumvent the hearsay exception by improper behavior.
Furthermore, there is likely to be an ongoing domestic violence crime if the victim's freedom
is constrained to the degree that he or she cannot report the crime.

40 See, e.g., Smith v. State, 460 S.E.2d 114, 117 (Ga. Ct. App. 1995); Barton v.

State 962 S.W.2d 132, 138 (Tex. Ct. App. 1997); Autrey v. State No. 05-96-01545-CR,
1998 WL 337864, at *5 (Tex. Ct. App. June 26, 1988).

41 See supra, note 30 (listing jurisdictions in which written and recorded prior
inconsistent statements are deemed reliable).

42 Or. Rev. Stat. § 40.460(26).

41 See id.

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Columbia Journal of Gender and Law

constitutional because cross-examination and witness demeanor during
cross-examination provide sufficient safeguards of reliability. The
opportunity to cross-examine the victim about the prior inconsistent
statement eliminates Confrontation Clause obstacles. Due to the additional
restrictions on admissibility, the second proposed exception admits
statements that are, as a threshold matter, more likely to be reliable than
statements admitted under the (constitutionally permitted) first proposed
exception when the victim is available for cross-examination.

b. Victim Unavailable for Cross-Examination

When a victim is unavailable for cross-examination, the
constitutional analysis of the propriety of admitting a prior statement as
substantive evidence begins with an inquiry into whether the exception is
"firmly rooted." In Ohio v. Roberts, the Court confessed that it "has not
sought to 'map out a theory of the Confrontation Clause that would
determine the validity of all ... hearsay exceptions.' 4 4 In 1999, in Lilly v.
Virginia, the Court stated that in order to satisfy the Confrontation Clause,
uncross-examined hearsay must meet one of two alternatives: "(1) 'the
evidence falls within a firmly rooted hearsay exception' or (2) [is not firmly
rooted but] it contains 'particularized guarantees of trustworthiness' such
that adversarial testing would be expected to add little, if anything, to the
statements' reliability."'A 5  A statement offered under a firmly rooted
exception is presumptively reliable.46 The opposing party can rebut this
inference of reliability by showing that the statement lacks adequate
circumstantial indicia of reliability.47

In two recent Confrontation Clause cases, White v. Illinois48 and
Lilly v. Virginia, the Court moved closer to providing a functional
definition of "firmly rooted." In White, the Court deemed firmly rooted
"such out-of-court declarations ... made in contexts that provide substantial
guarantees of their trustworthiness. But those same factors that contribute
to the statements' reliability cannot be recaptured even by later in-court
testimony. '" 9  In Lilly, the Court declared, "[w]e now describe a hearsay

44 Ohio v. Roberts. 448 U.S. 56, 65 (1980) (quoting Green, 399 U.S. at 162).

45 Lilly v. Virginia, 527 U.S. 116, 124-25 (1999) (quoting Roberts 448 U.S. at 66).

46 See Roberts 448 U.S. at 66 ("Reliability can be inferred without more in a case
where the evidence falls within a firmly rooted hearsay exception.").

47 See Idaho v. Wright, 497 U.S. 805, 821 (1990).
49 White v. Illinois 502 U.S. 346 (1992).

49 White, 502 U.S. at 355-56. In White the Supreme Court concluded that the
Confrontation Clause is satisfied where hearsay evidence possesses "adequate indicia of
reliability." Id The previous interpretation of the Confrontation Clause involved a two-part
test set forth in Ohio v. Roberts requiring a showing of unavailability and adequate "indicia
of reliability." 448 U.S. at 66. Reliability was inferred if it was a firmly rooted exception.

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Let the Truth Be Told

exception as 'firmly rooted' if, in light of 'longstanding judicial and
legislative experience,' it 'rest[s] [on] such [a] solid foundatio[n] that
admission of virtually any evidence within [it] comports with the 'substance
of the constitutional protection."' 50  "Context" is the central focus in
determining whether an exception fits the doctrine. Exceptions that have
been deemed firmly rooted have been those in which the reliability of the
statement derives from: 1) an out-of-court context, that 2) cannot be
recaptured in the courtroom.5' Other factors that may be considered
include the length of time the exception has been recognized and how
widely accepted the exception is among states.52

i. The Second Proposed Modification as "Firmly Rooted"
Exception

The firmly rooted nature of the second proposed exception is
established by the Court's rationale, that "context" is the primary factor for
determining whether a hearsay exception is firmly rooted. A statement
satisfying the exception's threshold prerequisites for admissibility possesses
"adequate indicia of reliability" derived from context. The primary
contextual factors of the proposed hearsay exception are the occurrence of
an assault, the timing of the statement, and reporting of the assault to
persons responsible for responding to the report. These are identical
contextual factors to those that have historically been admitted under the
"hue and cry" doctrine, as well as other exceptions, including the
spontaneous declaration category of hearsay exceptions (such as excited
utterance) and the res gestae principle.

The Court has cited the ancient "hue and cry" doctrine, which
authorized the admission of statements reporting violent assaults. "The

See id. at 66. Subsequent to Ohio v. Roberts the United States v. Inadi decision eliminated
the unavailability prong of the test for most types of hearsay. Ing, 475 U.S. 387 (1986).

'0 Lilly, 527 U.S. at 162 (quoting Mattox v. United States 156 U.S. 237, 244

(1895) (alterations in original)).
S1 The Court has declared some exceptions to be firmly rooted. Spontaneous

declarations and statements for medical diagnosis. White 502 U.S. 346. Statements by co-
conspirators made during the course of the conspiracy. Inadi 475 U.S. 387. There are other
exceptions that the Court has refused to regard as firmly rooted. Residual exceptions.
Wright 497 U.S. at 817. Statements by a co-defendant. Lee v. Illinois, 476 U.S. 530
(1986). Finally, declarations against penal interests, which the Court called "too large a class
for meaningful Confrontation Clause analysis." Lilly, 527 U.S. at 117 (quoting Lee 476
U.S. at 544 n.44).

52 Lilly 527 U.S. 116. For another view supporting the constitutionality of this
hearsay exception see Peter Dworkin, Confronting Your Abuser in Oregon: A New
Domestic Violence Hearsay Exception 37 Willamette L. Rev. 299 (2001) ("In many
scenarios of application that arise statements admitted will satisfy the requirements of both
the United States and Oregon Constitutions.").

2002]



18 Columbia Journal of Gender and Law [Vol. 11: 1

citizen's duty to 'raise the "hue and cry" and report felonies to the
authorities' was an established tenet of Anglo-Saxon law at least as early as
the 13

th century.53 The hue and cry doctrine existed at common law and
developed from an ancient process for reporting crimes and apprehending
perpetrators. 54 Under early English common law, in order for a criminal
charge to lie, a prosecutor had to demonstrate that the victim had alerted the
neighborhood by raising a hue and cry. 5 All the neighbors were required
(under penalty of liability), to set out in search of the felon." At trial, the
fact of the complaint and all the details were admissible.57

As hearsay doctrine emerged, it supplanted hue and cry. By the late
seventeenth century, courts began to move away from hue and cry
requirement and towards the hearsay rule, but statements reporting violent
assaults continued to be received into evidence. Admissibility was based
either upon the early common law exceptions to the hearsay rule or as res

58gestae. In some jurisdictions, the admissible evidence came to be limited
only to the fact of the report, but not the details of the crime. However,
many jurisdictions continued to allow the admissibility of details of the
report through a recognized hearsay exception or under res gestae.59

As Wigmore observed, as far back as the earliest applications of the
hearsay rule, courts allowed certain statements to be admitted as exceptions

" Roberts 445 U.S. at 557 (citation omitted).
54 See Black's Law Dictionary 583 (1st ed. 1891).

55 See New Jersey v. Hill, 578 A.2d 370, 374 (1990) ("Trial courts required full
details of the victim's complaint as a necessary element of the prosecutions case in those
instances of violence."); see also Paula J. Clifford, Fresh Complaint Testimony in
Massachusetts-Friend or Foe, 2 Suffolk J. Trial & App. Advoc. 161, 168 (1997) ("To prove
his case, a prosecutor had to show that the alleged victim made a complaint.").

56 See Bouvier's Law Dictionary 966 (Rawle's rev. 1897) ("The constable ... is to

call upon the parishioners to assist him in the pursuit in his precinct; and to give notice to the
next constable, who will do the same as the first, etc. If the county will not answer the bodies
of the offenders the whole hundred will be answerable for the robberies there committed,
etc."); see also il 578 A.2d at 374 ("Victims of violent crimes were expected to cry out
immediately and alert their neighbors that they had been violently assaulted. The neighbors
would then initiate a collective search for the aggressor.").

57 See Wigmore, supra note 21, §§1747, 1760, at 196-98; Hill 578 A.2d at 375
("Because the details of 'hue and cry' were admissible as evidence of the rape, testimony
concerning hue and cry was substantive evidence against the accused."); Clifford, supra note
55, at 169; see also Deborah Brandon, Going to Extremes: The Doctrine of Prompt
Complaint and Louisiana Code of Evidence Art. 801(d)(1), 39 Loy. L.Rev. 151 (1993).

s8 See Wigmore, supra note 21, §§1747 at 196-98, 1760; see also Clifford, supra
note 55, at 168-69. Res gestae is the historical hearsay exception which "includes those
circumstances which are the automatic and undesigned incidents of a particular litigated act.
. [In] operation it renders acts and declarations which constitute a part of the things.., said

admissible in evidence." Black's Law Dictionary 1469 (4" ed. 1957).

59 See Wigmore, supra note 21, §§1747, 1760, at 196-98.



Let the Truth Be Told

to the general ban.60 "The hearsay rule is not a rule without exceptions;
there never was a time when it was without exceptions."6 1 For example,
one of the earliest justifications for ensuring the reliability of out of court

is . 62statements is the spontaneous declaration rationale. This rationale was
important for admitting statements in early assault cases, including crimes
of domestic violence. The United States Supreme Court has recognized the
ancient precedent of admitting hearsay statements that report acts of what
would now be called domestic violence. The Court has cited the 1694
domestic violence case Thompson v. Trevanion, 63 in which the domestic
violence victim's statement was admitted as substantive evidence, as
authority that the spontaneous declaration category of exceptions are firmly
rooted. The case involved an "assault and battery" upon a wife where the
judge admitted what the wife had said "immediate upon the hurt received,
and before she had time to devise or contrive anything for her own
advantage.'-A

4

The proposed hearsay exception satisfies the second aspect of
"context" because a statement that is admissible under the domestic
violence exception is made under circumstances that cannot be recaptured
by in-court testimony. By the time testimony is given, the victim will likely
have been subjected to threats or coercion by the assailant. Due to the
pressure on the victim to recant, testimony given on the witness stand
months later by the domestic violence victim will not have the same
evidentiary value, and cannot substitute for the out of court statement.

The second proposed hearsay exception is firmly rooted because it
satisfies the modem "context" test, resembles hue and cry requirements, and
fits within the rubric of res gestae principles. Although it is much more
narrowly drawn, the second proposed exception is analogous to the ancient
hue and cry doctrine because both fill the same functional purpose. The
functional purpose of each is (1) to achieve the reporting of violent crime;
(2) to the appropriate authorities; (3) shortly after the crime was committed;
(4) to initiate criminal prosecution and to provide evidence for admission at
trial.65

60 Wigmore, supra note 21, § 1397, at 158.
61 Wigmore, supra note 21, § 1426, at 256-67.

6 2 See Wigmore, supra note 21, §1746, at 195.

63 90 Eng. Rep. 179 (K.B. 1694).

64Id. at 179.

65 The argument that the second hearsay exception proposal is not firmly rooted

because it addresses domestic violence is unpersuasive. The historical "hue and cry"
foundations of the second proposed modification are not made any less firmly rooted
because, to ensure reliability, the admissibility is restricted to statements of domestic
violence victims. To see it otherwise misinterprets the more restrictive criteria of
admissibility in the second proposed exception, (e.g., domestic violence victim statements in
domestic violence cases), as instead a foundational basis of the exception. It would be

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Columbia Journal of Gender and Law

ii. The Second Proposed Exception not as a "Firmly Rooted"
Exception

The possibility that an appellate court would hold that the exception
is not firmly rooted cannot be foreclosed. If courts narrowly defined the
exception by its "domestic violence" focus, a court could disregard
historical support and conclude that the exception has not been in existence
long enough and does not have a history in the courts. Furthermore, a court
might conclude that a twenty-four hour reporting period is too long to fall
under historical standards.66 If the second proposed exception is not firmly
rooted, it is still constitutional as a non-firmly rooted exception.

Where a statement is offered under a hearsay exception that is not
firmly rooted, the Supreme Court has stated that the statement is
"presumptively unreliable," but the proponent may rebut the presumption
"by a 'showing of particularized guarantees of trustworthiness"' based on
the totality of the circumstances surrounding the making of the statement.67

The Supreme Court in Idaho v. Wright, ruled that reliability must be "drawn
from the totality of circumstances that surround the making of the
statement."6 8 Accordingly, the second proposed domestic violence hearsay
exception directs that "the court shall consider all circumstances
surrounding the statement" to discern the statement's reliability.69

By requiring the trial judge to specifically determine whether a
statement offered under the domestic violence hearsay exception has
"particularized guarantees of trustworthiness," out of court statements
admitted under the exception satisfy both constitutional and hearsay
concerns. Thus, constitutional issues will arise only in those particular
cases where a court admits a statement that does not possess particularized
guarantees of trustworthiness.

A judge finds indicia of reliability within the context surrounding
the making of the statement. For example, the proposed statute requires the
statement to have been recorded electronically or in writing, or made to a
police or other state officer. Police officers are trained to accurately record

peculiar to eliminate the firmly rooted status of an exception because additional criteria to
ensure the reliability of the statement were added to the historical exception. While there is
some point at which modifications to hue and cry would end its firmly rooted nature, this is
not the case in the proposed exception.

66 The time period in the proposed exception could be shortened by further
legislative refinement to fall within "hue and cry" should a court determine twenty-four
hours is too long to fall within the firmly rooted category

67 Lee v. Illinois, 476 U.S. 530, 543 (1986); see also Idaho v. Wright, 497 U.S.
805, 818-19 (1990).

68 Wright 497 U.S. at 819-20.

69 Or. Rev. Stat. § 40.460 (26)(b).

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Let the Truth Be Told

and preserve evidentiary statements, and will provide better contextual
information than the average lay witness. If the statement was recorded,
there is little doubt regarding the reliability in recollecting the words of the
statement. In addition, the recording, whether electronic or written, will
provide the court with some contextual evidence as to the demeanor of the
declarant. Also, the domestic violence hearsay exception requires that the
statement be made within twenty-four hours after the incident of violence
occurred. Finally, the statement will have been made by a domestic
violence victim about an incident of domestic violence. This is significant
because the initial out of court statement of a domestic violence victim in a
domestic violence case is likely to be the most reliable statement obtainable,
whether or not the victim is available for cross-examination. In the
exception, the threshold requirements for admissibility are designed to give
the judge adequate evidence to make a determination that the statement
bears particularized guarantees of trustworthiness which warrant its
admission into evidence and ensure that contextual information will be
available to the court. 70

Only intrinsic corroboration of the statement is constitutionally
permitted because extrinsic corroborating facts cannot be used under
Wright.7' In various decisions, the Court has recognized a number of
factors that relate to reliability, including: spontaneity, voluntariness,
repetition, the knowledge and mental state of the declarant, whether the
statement was made in response to leading questions, whether the statement
was made anonymously, the existence or lack of a motive to fabricate, and
whether the terminology used would be expected of such a declarant.72

However, the Court has never attempted to set out a comprehensive list of
factors to be considered in determining reliability, and, in fact, has stated
that, "courts have considerable leeway in their consideration of appropriate
factors. 73 Nor has the Court specifically identified, or found it wise to

70 Before appellate courts affirm that the presence of threshold requirements of the

exception are tantamount to "particularized guarantees of trustworthiness," a proponent of
the evidence would be wise to supplement the record, where possible, with other indicia of
reliability.

71 Extrinsic corroboration is evidence extrinsic to the statement and the immediate
context in which it was made, such as physical injuries, etc. Intrinsic corroboration is
evidence provided in the immediate attendant circumstances and the actual context in which
the statement was made. The limitation imposed by Wright prohibiting corroborating
evidence extrinsic to the context, does not foreclose the admissibility of the domestic
violence victim's statement under the second proposed exception. See Wrig 497 U.S. at
805.

72 See, e.g., Maryland v. Craig, 497 U.S. 836, 851 (1990); Wright 497 U.S. at 821-

22; Lee 476 U.S. at 532-546.

73 Idaho v. Wright, 497 U.S. 805, 821-22 (1990) (the Court, after citing a number
of factors that properly relate to reliability, states: "These factors are, of course, not
exclusive.").

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Columbia Journal of Gender and Law

identify, the quantity or quality of intrinsic corroboration needed for
admissibility. Rather, the constitutional sufficiency of intrinsic
corroboration of statements offered under a non-firmly rooted exception
must be assessed in the "totality of circumstances." In keeping with the
Court's view, while some criteria are explicitly set forth in the proposed
hearsay exception, the proposed exception explicitly allows a court to
consider any other relevant criteria not specifically enumerated. If the
exception is not firmly-rooted, the constitutionality of the admission of a
statement will be determined on a case by case basis by weighing intrinsic
evidence of reliability.

V. SPECIAL ISSUES RAISED BY THE PROPOSED EXCEPTIONS

A. Addressing the Problem of Recantation by "Memory Loss"

One way domestic violence victims try to assist the defendant is to
claim no memory of the prior statement of the assault. The troublesome
question is whether the present testimony of memory lapse by the victim
renders the prior statement an "inconsistent statement,, 74 and thus
admissible into evidence. Professors Mueller and Kirkpatrick are skeptical
that the failure of witnesses to recall is typically a genuine lapse of memory:

At least in theory, both a claimed lack of memory and a prior
positive statement might be true and correct-what was known
may be forgotten, and the difference need not suggest that the
witnesses lied or erred either time. But common sense rebels at
the thought that such changes in knowledge or memory reflect
only the vagaries of human understanding, and common
experience suggests that changes of this sort may reflect a change
of view or uncertainty or mistake. After all claiming not to know
is a familiar way to keep distance and avoid involvement,
controversy, mask confusion, insecurity, or uncertainty. 5

While it is probable that most lapsed memory is feigned, it is even
more probable in domestic violence cases because recantation is the norm
rather than the exception. In light of the improbability of genuine memory
loss in most cases where it is claimed, one federal approach, followed by
some states, has been to find that the prior statement is inconsistent if the
loss of memory claim is false or feigned.76 If the court makes a finding that
the memory lapse is false or feigned then the earlier statement becomes a

74 See Mueller & Kirkpatrick, supra note 17, at 590 nn.10-1 I (citing federal cases).

7Id. at 590.
76 See, e.g., People v. Pere, 98 Cal. Rptr. 2d 522 (Cal. Ct. App. 2000) (witness's

deliberate forgetfulness is an implied denial of prior statements which creates
inconsistency); State v. Soto 773 A.2d 739, 750 (N.J. Super. Ct. App. Div. 2001).

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Let the Truth Be Told

prior inconsistent statement and is admissible. Some commentators have
criticized hinging admissibility on a judicial finding that the witness is
feigning or falsifying memory loss and urge that it is an unnecessary barrier
to the admissibility of prior inconsistent statements. 7 The criticism is that
the court unwisely invades the province of the jury in engaging in such a
finding so it is better to let the statement in as a prior inconsistent statement
without a judicial inquiry into the reliability of the lapsed memory claim.78

Other federal courts have done just that and have admitted the statement
without any inquiry into whether the memory was feigned or false. 79 Also,
some other state courts which have ruled on the issue in the domestic
violence context have admitted the prior inconsistent statement without
requiring a finding of false or feigned memory.8°

In terms of ultimate admissibility, it is perhaps inconsequential
whether or not a jurisdiction requires a finding of whether the domestic
violence victim's memory loss is feigned. Courts have recognized that
recantation is commonplace in domestic violence cases.81 While it is
theoretically possible that a domestic violence victim's recantation is true
and the original report untrue, the practical reality of domestic violence is
that a truthful recantation by a domestic violence victim is rare. Modem
trial courts are likely to find the recantation unbelievable because the courts
are familiar with the dynamics of domestic violence. It is also probable that
these courts will find that a domestic violence victim's lapse of memory is
feigned.

Because it may be difficult or impossible, as a practical matter, to
cross-examine a witness on a prior statement of which the witness presently
claims no recall, it may raise the possibility that there will be an inadequate
opportunity to confront the witness under the confrontation clause.
However, it is clear that the use of the prior inconsistent statement when a
witness claims loss of memory is perrmissible under the Confrontation
Clause.82 Likewise, most states ruling on the issue have found no violation

77 See United States v. Tory, 52 F.3d 207, 210 (9th Cir. 1995), quoted in Mueller &
Kirkpatrick, supra note 17, § 6.40, at 590 ("[T]o require a false or feigned lack of memory as
a condition seems unworkable: if the judge must already assess credibility in deciding to
admit a prior positive statement, he is playing a role normally reserved for the jury, and the
question is one that cannot be answered with any confidence. It seems better not to impose
this condition on the use of prior statements and sometimes courts make no mention of it.").

78 See Mueller & Kirkpatrick, supra note 17, § 6.40, at 590 (citing cases that omit

the requirement of a finding of feigned memory).

79 See id

80 See, e.g., State v. King, 883 P.2d 1024, 1030-33 (Ariz. 1994); Bullock v. State,

543 A.2d 858 (Md. 1988).
81 See supra note 11 and accompanying text.

82 See, e.g., United States v. Owens. 484 U.S. 554, 559 (1988) (finding that

adequate opportunity to probe memory loss satisfies confrontation clause when witness had

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Columbia Journal of Gender and Law

of state constitutional confrontation clauses.83 At least one state has
followed the two dissenting justices in Owens, and found that an absence of
memory means the witness is unable to be effectively confronted and that
the state constitutional confrontation clause is violated. 4 This minority of
courts should establish a feigned memory procedure unique to domestic
violence cases. First, because domestic violence victims will probably
recant, these cases represent a class of cases different than other cases. In
no other class of cases is recantation, including recantation by memory loss,
commonplace and even expected. Second, to apply an inflexible rule to
domestic violence cases is to doom the possibility of a truthful outcome.
Domestic violence victims will find out from their abuser, typically based
on information provided to the accused by his attorney, the significance the
evidence code possesses in relation to the case. It seems peculiar to enforce
the defendant's right to confront a victim with "memory loss" by excluding
a prior inculpating statement made by the victim, while, at the same time
being fully aware that the victim has feigned loss of memory to shelter the
defendant from criminal liability.

In domestic violence cases, states which have interpreted their
respective confrontation clauses more strictly than the Federal Constitution
should allow a trial judge to make a finding about whether a domestic
violence victim's memory loss is feigned. If it is feigned, the state
confrontation clause should be satisfied, because the feigning is done to
protect the defendant, ironically, the very person complaining about the
inability to confront.8 5

B. Confronting the Problem of the Unavailability Requirement

In both United States v. Inadi and Idaho v. Wright, the United
States Supreme Court abandoned the unavailability requirement as a
prerequisite to admissibility. 86 The Court in Wright noted that hearsay

no recall of prior identification); United States v. McHorse 179 F.3d 889, 900 (10th Cir.
1999); United States v. Keeter 130 F.3d 297, 302 (7th Cir. 1997) (Confrontation Clause not
violated when witness feigned amnesia at trial because defense could examine about
credibility, as prior inconsistent statement had been made under oath).

83 See, e.g., London v. State, 549 S.E.2d 394, 397 (Ga. 2001); State v. Jenkins 23

P.3d 201, 205 Mont. 2000).

" See State v. Canady, 911 P.2d 104 (Haw. 1996) (denying admissibility of prior
inconsistent statement when domestic violence victim claimed no memory).

85 One comment uses a similar argument in support of the idea that feigned
memory loss should not solve Confrontation Clause problems where someone other than the
defendant is responsible for promoting the feigned memory loss testimony. See David
Greenwald, Comment, The Forgetful Witness, 60 U. Chi. L. Rev. 167, 180 (1993).

86 See Idaho v. Wright, 497 U.S. 805 (1990); Inadi v. United States 475 U.S. 387

(1986).

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statements either firmly rooted or not firmly rooted must meet admissibility
standards that are "so trustworthy that adversarial testing would add little to
[their] reliability."87 The judge need not make a finding as to the witness's
unavailability, because the statement will have been made under
circumstances that cannot be "replicated by courtroom testimony," 8 such
that "the test of cross-examination is of marginal utility '89 and therefore is
not required. A witness must either be produced or shown to be unavailable
only "when the prosecution seeks to admit testimony from a prior judicial
proceeding in place of live testimony at trial."90 The Supreme Court has
quoted with approval Wigmore's famous phrase that cross-examination is
the "greatest legal engine ever invented for the discovery of truth."9' This
viewpoint has increasingly been reflected in the Court's hearsay and
Confrontation Clause opinions.92  The Supreme Court has adopted
Wigmore's belief that certain types of hearsay have "circumstantial
guarantees of trustworthiness," and do not need to be subjected to cross-
examination.93 For example, in Idaho v. Wright, the Court cited Wigmore
explaining that "if the declarant's truthfulness is so clear from the
surrounding circumstances that cross-examination would be of marginal
utility, then the hearsay rule does not bar admission of the statement., 94

Certain types of hearsay need not be subjected to cross-examination
because some statements derive their reliability from their context. The
Court explained this in White: "We note first that the evidentiary rationale
for permitting hearsay testimony regarding spontaneous declarations ... is
that such out-of-court declarations are made in contexts that provide
substantial guarantees of their trustworthiness." 95  In such an instance,
cross-examination would add little to the trier of fact's understanding of the
evidence. When a declarant is reacting to a startling event, for example,
there is no need to ask at trial: "Why did you make that statement?" or
"What were you thinking?" The statements themselves are more valuable
evidence than testimony given months later when the events are not as fresh

17 Wrig 497 U.S. at 821.
88 White v. Illinois 502 U.S. 346, 356 (1992).
89 Wright 497 U.S. at 820.

9 Inadi 475 U.S. at 393.

91 5 Wigmore, supra note 21, §1367, quoted in California v. Green, 399 U.S. 149,
158 (1970).

9 See, e.g., hijte, 502 U.S. at 356; Ohio v. Roberts 448 U.S. 56, 63 (1980); see
also Robert P. Mosteller, Remaking Confrontation Clause and Hearsay Doctrine Under the
Challenge of Child Sexual Abuse Prosecutions 1993 U. I11. L. Rev. 691, 713 (1993).

93 Idaho v. Wright 497 U.S. 805, 812 (1990) (quoting Idaho R. Evid. 803(24)).

94 Wright 497 U.S. at 820.

95 White v. Illinois 502 U.S. 346, 355 (1992).

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Columbia Journal of Gender and Law

in the declarant's mind, and after there has been an opportunity for the
witness's memory or comments to be influenced by others, or for a motive
to fabricate to develop.

Another important reason that cross-examination does not add
value to this type of hearsay is that in-court testimony cannot substitute for
the contextual circumstances that made the statement significant.96 The
Court applies this reasoning to excited utterances: "A statement that has
been offered in a moment of excitement-without the opportunity to reflect
on the consequences of one's exclamation-may justifiably carry more
weight with a trier of fact than a similar statement offered in the relative
calm of the courtroom. 97 In such instances where statements derive their
significance from an out-of-court context, "adversarial testing would add
little to their reliability."98

Despite United States Supreme Court holdings, some state courts
continue to require a showing of unavailability. For example, the
prosecution may be required to demonstrate a significant effort to locate the
victim before declaring the victim unavailable. A showing of unavailability
should not be required in domestic violence cases. It is backwards to
require a showing of unavailability when the domestic violence victim is
typically unavailable to assist the batterer's defense and frustrate the truth-
finding process. Ironically, if a showing of unavailability is not required, a
defendant is more likely to secure the victim's attendance at trial rather than
encourage no-show. When coercing a victim to no-show becomes an
ineffective means of avoiding the admissibility of reliable evidence at trial,
the coercion of the victim to recant at trial is the defendant's remaining
option. Thus, eliminating the unavailability requirement in domestic
violence cases has the added benefit of increasing the likelihood that
victims attend trial, which in turn, eliminates the unavailability problem.

Furthermore, state court retention of the unavailability requirement
in domestic violence cases poses another problem: it may be unrealistic of
courts to expect that adequate police resources can be committed to the
legwork necessary to meeting the standard of unavailability.99 Because of
the high volume of domestic violence cases, the fact that most are
misdemeanors, and the fact that there are a disproportionate rate of victims
in these cases hiding from the criminal process, adequate resources may not
be readily available to establish unavailability.

96 See Inadi v. United States, 475 U.S. 387, 395 (1986) (applying logic to
statements of co-conspirators).

97 White, 502 U.S. at 356
9" Wrigh 497 U.S. at 821.

9 See Fed. R. Evid. 804(a) (stating requirements of witness unavailability for
application of hearsay exception).

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2002] Let the Truth Be Told

Like the hearsay rule itself, unavailability requirements have been
imposed with no regard for the uniqueness of domestic violence cases. In
light of the modem understanding of domestic violence, some
accommodation to the unavailability requirement should be fashioned by
the few state courts still requiring it. For example, if added precautions are
needed, a requirement of general corroboration of the statement in order to
convict is far preferable to unavailability requirements.' °°

C. Corroborating the Statement Sufficiently to Convict

Once a prior statement is determined to be reliable for use as
substantive evidence, there are two approaches to the use of unswom prior
inconsistent statements to convict. The two approaches are: (1) to allow a
conviction to be based entirely upon the prior statement or (2) to require
corroborating evidence of the statement before the statement can be a
sufficient basis of conviction. The issue of whether the statement alone is
sufficient to convict may arise under either of the proposed exceptions.'01

A majority of the twenty-two states that allow the use of prior
inconsistent statements as substantive evidence do not require the
statements be corroborated in order for them to be the basis of conviction.'0 2

In these states, there are no significant legal hurdles to the use of a domestic
violence victim's out of court statements as a sufficient basis for conviction.

A minority of the twenty-two states that allow unswom prior
inconsistent statements as substantive evidence 0 3 have also required

1O0 See infra Part V.C (discussing general corroboration requirements).

1o1 See Stanley A. Goldman, Guilt by Intuition: The Insufficiency of Prior

Inconsistent Statements to Convict, 65 N.C. L. Rev. 1 (1986). Goldman argues that a prior
inconsistent statement that is recanted ought not to be a sufficient basis for conviction. But
Goldman's point was made in the context of cases generally, and does not take into account
the remarkable and unique circumstances of domestic violence recantation. It is not the point
of this article to confront his general thesis but to point out that his thesis has little merit in
the domestic violence context. However, in domestic violence cases the prior inconsistent
statement is the reliable statement and is not rendered unreliable by a subsequent recantation.
It is the recantation itself that is inherently unreliable. Since Goldman's focus is the general
case, he does not address other issues involved in domestic violence such as the fact that the
recantation is for the benefit of the party seeking to render the conviction insufficient. An
illustrative example of a court painting domestic violence victim memory "lapses" with
Goldman's too broad a brush can be found in State v. Tomas. 933 P.2d 90 (Haw. Ct. App.
1991).

102 See People v. Chavies, 593 N.W.2d 655, 659-61 (Mich. Ct. App. 1999) (citing

cases). For state cases not requiring corroboration, see People v. Cuevas, 906 P.2d 1290,
1302 (Cal. 1995); Montoya v. People. 740 P.2d 992, 996-98 (Colo. 1987); Acosta. v. State,
417 A.2d 373, 376-378 (Del. 1980); Weeks v. State 370 S.E.2d 344 (Ga. Ct. App. 1988);
Tomas 933 P.2d at 91(domestic violence case); People v. Morrow, 708 N.E.2d 430, 436 (I11.
Ct. App. 1999) (holding that if a judge finds a prior inconsistent statement is reliable, no
finding of corroboration is necessary); Nance v. State 629 A.2d 633 (Md. 1993).

103 See statutes cited supra notes 29-30.



Columbia Journal of Gender and Law

corroboration of a prior inconsistent statement before it can be considered a
sufficient basis for a conviction. The judicial choice between allowing
general or specific extrinsic corroboration makes a big difference in the
effectiveness of the proposed domestic violence hearsay exceptions as
truth-finding tools.

Most jurisdictions that require corroboration have a general
extrinsic corroboration requirement. 1°4 For example, in the Missouri case
State v. Archuleta,15 the victim told the officer about the assault and
identified the defendant as the perpetrator. At trial, the victim stated she did
not recall the events. At the scene, the victim had a bloody nose and
swollen eyes and the Missouri court found this sufficient foundation for the
admission of the victim's prior inconsistent statements.10 6 In Vermont, the
court held that in a domestic violence case the requirement of
"corroborative evidence need not tack down each and every fact and
allegation. , 107 General corroboration factors cited by the court included the
short time between the assault and the statement, as well as the victim's
physical and emotional state. The Vermont court found it significant that
''recantation is common in cases of domestic abuse because victims fear
retaliation from the batterer.' 08 A Montana court found that, among other
corroborative facts, the victim's hysterical appearance, the fact that she was
out on the street at 11:00 P.M. with no coat or socks, and had cuts, bruises,
and scrapes on her body, could be considered corroboration of her prior
inconsistent statement concerning the assault. 09 A New Mexico court,
faced with identification of the domestic violence perpetrator only through
the victim's prior inconsistent statements, found sufficient general extrinsic
corroboration in the facts that defendant lived with the victim, no other
person bore an unfavorable relationship to the victim that would result in a
severe beating, defendant produced no evidence impeaching the prior
inconsistent statements and no evidence of defendant's good character was
presented." 0 These courts have all appropriately applied a general

104 States with case law that requires only general corroboration of prior
inconsistent statements to convict: Alaska. Hamilton v. State No. A-6859, 1999 WL
7165000 (Alaska Ct. App., Sept. 15, 1999); Montana. State v. Stringer, 897 P.2d 1063
(Mont. 1995); New Jersey. State v. Mancine 590 A.2d 1107 (N.J. 1991); New Mexico.
State v. Maestas. 584 P.2d 182 (N.M. Ct. App. 1978) (domestic violence); South Dakota.
State v. Owl, 316 N.W.2d 801 (S.D. 1982); Utah. State v. Ramsey, 782 P.2d 480 (Utah
1989); Vermont. State v. West, 667 A.2d 540 (Vt. 1995) (evidence sufficient for conviction
in prior inconsistent statement admitted under excited utterance exception).

o 955 S.W.2d 12 (Mo. Ct. App. 1997).

'o6See id.
107 West, 667 A.2d at 543 (quoting Mancine 590 A.2d at 1119).

108 West, 667 A.2d at 543.

109 See Stringer 897 P.2d at 1072.
10 See State v. Maestas, 584 P.2d 182, 192 (N.M. Ct. App. 1978).

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Let the Truth Be Told

corroboration requirement to establish the sufficiency of out of court
statements of a domestic violence victim to convict.

On the other hand, a specific corroboration requirement would spell
disaster for truth finding in domestic violence cases. An example of how
requiring the use of specific extrinsic fact corroboration for each element of
the crime could potentially undo any benefit of the proposed hearsay
exceptions is found in the Ohio case State v. Attaway."' While Ohio does
not allow the use of prior inconsistent statements generally, it does
recognize an excited utterance exception upon which case law has overlaid
a specific extrinsic fact corroboration requirement. In Attaway, police
responded to a 911 call and found the victim and defendant together.112 The
domestic violence victim informed the police that the defendant had
punched, kicked, stomped, and choked her.' 1

3 The victim had a swollen
bloody lip and scratches on her neck, was crying and was obviously
intoxicated."14 The officer observed that Attaway had scratches on his neck
and a minor lip injury. It was uncontested that the defendant and victim
resided in the same house." 5 At trial the victim recanted, saying that she
had instead been in a fight with a woman on the street and not, as she
originally reported, the defendant. Not surprisingly, the trial court believed
the original report to the police by the victim and convicted the
defendant."16 The appellate court reversed the conviction. 1 7 Ohio's
application of a specific extrinsic corroboration requirement in Attaway was
made with no discussion of the unique reality of domestic violence
recantation. The Ohio court painted over the unique picture of domestic
violence cases with the broad brush of cases generally, stating:

. . . [flor the trial court to have found Attaway guilty in the
present case, it must necessarily have placed more credence in the
statements [the victim] made to the arresting officer than it did in
her testimony at trial under oath. Such a determination assumes
that statements made contemporaneous with the event, while still
under its stress, carry a more substantial guarantee of
trustworthiness than testimony given after the fact, subsequent to
a period of cooling off in which one has had an opportunity to
fabricate .... We note that the record is bereft of any extrinsic
corroborating evidence from which to conclude that [the

" 676 N.E.2d 600 (Ohio Ct. App. 1996).
112 See id. at 601

13 See id.
114 See id.
115 See id.

1
6 See id. at 601.

117 See id. at 602.

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Columbia Journal of Gender and Law

victim's] statement to the arresting officer was more credible than
her recantation under oath.' 18

The Attaway opinion demonstrates a lack of understanding of the
dynamics of domestic violence, much less any significance it might have to
an evidentiary ruling. This victim, like eighty to ninety percent of domestic
violence victims, recanted her initial report to the police. As a practical
matter, the Attaway specific extrinsic corroboration requirement severely
limits, if not altogether destroys, the practical import of the proposed
hearsay modifications advocated in this article and, for that matter, any pre-
existing hearsay exceptions, such as the firmly rooted excited utterance
exception used in the Attaway case.

Absent a full and complete confession by the defendant, or the
improbable independent eyewitness, it is difficult to imagine a fact scenario
under the Attaway ruling in which a coerced victim could not completely
eliminate the possibility of a conviction by simply recanting. In Attaway
the police officer responded to the call. The officer found the defendant and
victim present at the scene. Both victim and defendant had been recently
injured. Despite the fact that the trier of fact (the trial court judge)
determined that the initial statement, and not the recantation, was reliable,
the Ohio appellate court ruled implicitly that a domestic violence victim's
initial statement to police, admitted under the excited utterance exception
was less reliable as a matter of law than one made under oath absent
specific extrinsic corroboration.11 9

Hopefully, Attaway does not represent the beginning of a giant
step backwards in the effort to achieve truth finding in domestic violence
cases. If testimony under oath is, as a matter of law, more reliable than a
statement falling into the firmly rooted excited utterance exception (unless
there are specific extrinsic facts to corroborate each element of the crime),
then there will rarely be sufficient evidence to convict a batterer. The
reality of batterer coercion in domestic violence cases should be reason
enough to require only general extrinsic corroboration in cases of prior
inconsistent statements of domestic violence victims, rather than
corroboration of each element of the crime. The general requirement that
some fact or facts in the statement be supported by corroborating evidence
should render the statement reliable enough to be a sufficient basis for
conviction.

In fairness to the Ohio court, the Attaway opinion also
demonstrates the need for the two proposed hearsay exceptions. Attaway

"8 Id. at 601-02.

119 The only other conclusion possible is that the appellate court gave itself power
to review the facts in a criminal case de novo. This alternative conclusion would represent a
revolutionary expansion of appellate authority in criminal appeals, and therefore is an
unlikely explanation for the decision.

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reveals that, because of the low threshold of reliability needed for the
admissibility of statements under existing firmly rooted hearsay exceptions
(e.g., a state of excitement), courts may be tempted to impose a higher
standard of corroboration to satisfy a "sufficiency of evidence to convict"
requirement. The Attaway court was struggling with a problem that does
not exist within the proposed hearsay exceptions. In the proposed
exceptions, "excitement" is not a central criterion for admissibility. The
Attaway court noted that "an excited utterance can just as easily lead to the
contradictory conclusion that a startling event enhances the possibility for
misstatement or mis-perception.', 20 Absent the court's discomfort with the
criterion of "excitement" as the main indicia of reliability, the court would
be free to abandon specific corroboration requirements and embrace general
corroboration requirements under the heightened criteria of reliability in the
proposed hearsay exceptions. Unlike the excited utterance exception, both
of the proposed hearsay exceptions provide a court with the opportunity to
admit the prior statement by the victim without relying upon the criterion of
excitement, and with better criteria and procedures available to ensure
reliability. The first exception requires cross-examination of the victim
about the prior inconsistent statement to ensure reliability. The second
exception sets threshold criteria of reliability and, beyond that, allows a
court to examine other criteria of reliability. With the presence of much
more substantial procedures and criteria for establishing reliability in the
proposed exceptions, there is much less need for an overly stringent test of
sufficiency of proof to convict. As a result, general extrinsic corroboration
should satisfy appellate courts as sufficient corroborative proof to convict.

VI. A FINAL PROBLEM: RECONCILING THE HEARSAY
EXCEPTIONS IN THE DEBATE OVER MANDATORY

PROSECUTION PROCEDURES IN DOMESTIC VIOLENCE
CASES

This section surveys the conflict over whether mandatory
domestic violence prosecution procedures are wise, and identifies the
hearsay rule as the wrong context within which to make public policy
decisions about mandatory prosecution in domestic violence cases.
Recently, the problem of a domestic violence victim's failure to appear at
trial (hereinafter "no-show") has led to heated debate about whether
domestic violence victims should be compelled by arrest to appear and
testify. This has spurred an ongoing debate about the wisdom of any and all
mandatory prosecution procedures in domestic violence cases. This debate
takes place in the context of the reality of gender subordination.

Cheryl Hanna's thesis is that domestic violence must be prosecuted
as a matter of public interest. On the other hand, Linda Mills argues that

120 State v. Attawa, 676 N.E.2d 600, 602 (Ohio Ct. App. 1996).

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Columbia Journal of Gender and Law

mandatory prosecution procedures are destructive to the uncooperative
domestic violence victim.121 Reviewing the scholarship of Hanna and other
supporters of mandatory procedures, Elizabeth Schneider has identified four
core arguments in favor of mandatory prosecution of domestic violence
cases.122  First, the decision to prosecute is properly a state decision,
because the state represents the people not the victim, and because the
public wrong of domestic violence, which concerns "public safety and the
protection of children," should not be ignored.12 1 Second, mandatory
prosecution removes the decision from the victim and thus removes the
coercion of the batterer upon the victim to end the case.1 24 Third, mandated
procedures are justified by the "effect they have on the batterer.',' 125 Finally,
that domestic violence is not a private matter, but an issue of public
concern. 126 Reviewing Mills' scholarship, among others, Schneider also
identifies the central criticisms of mandatory prosecution procedures. In
deciding what is "best" for victims by imposing mandatory prosecution
practices, the empowerment of "choice" is removed from the victim and the
autonomy of the victim is violated. 127 Mandatory prosecution procedures
can also increase the potential for harm to the victim's dignity by increasing
the likelihood that the batterer will retaliate against the victim, or that the
victim will realign his or her loyalty with the batterer.128

Empirically, the case is strong for mandated domestic violence
procedures because of the adverse impact of domestic violence on public
interests and the interests of children. The sheer volume of domestic
violence crime is shocking. 2 9  Statistics from varied sources reveal the

121 Compare Cheryl Hanna, No Right to Choose: Mandated Victim Participation in

Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849 (1996) with Linda G. Mills,
Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 Harv. L. Rev.
550 (2000).

"2 See Elizabeth Schneider, Battered Women and Feminist Lawmaking 185

(2000). Professor Schneider has urged that we should be concerned about efforts to de-
contextualize battering from the larger framework of gender subordination. That battering
occurs as a method of gender subordination is accepted in this article as a premise. Thus, this
article is not cast as a debate as to the existence of a cultural framework of gender
subordination. Importantly, neither Hanna nor Mills challenge this premise in arriving at
their polarized conclusions on appropriate criminal procedures in the domestic violence
context.

'23 Id. at 185.

124 See id.

1251 Id. at 185-86.

126 See id. at 186.

127 See id.

128 See id. at 187.

129 The Federal Bureau of Justice Statistics [hereinafter BJS] reports that on

average each year, "women experienced over 572,000 violent victimizations committed by

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2002] Let the Truth Be Told 33

enormity and scope of the domestic violence epidemic. Domestic violence
imposes a staggering financial burden on society. The economic cost of
battering relationships to employers is between five and ten billion dollars
per year.130 Also, substantial health care resources are devoted to domestic
violence. The Surgeon General reports that violence against women is the
leading cause of injury to American women.' 31  Other medical studies
reveal similarly dramatic statistics. 32  Domestic violence impacts children
and the social service agencies which serve them. The impact of domestic
violence on children is substantial. The most identifiable risk factor for
child abuse is domestic violence. 33 Other studies also document the tragedy

an intimate." Lawrence A. Greenfield et al., Bureau of Justice Statistics Factbook: Violence
by Intimates 2 (1998). An article in the Journal of the American Medical Association
estimates that between 1.8 and 4 million women are victimized by domestic violence every
year. See Antonia C. Novello et al., From the Surgeon General, U.S. Public Health Service,
JAMA, June 17, 1992, at 267-23. BJS reports that one in five females who had reported
abuse was the victim of three or more assaults in the preceding six months. See Greenfield
et al., supra, at 2. Domestic violence accounts for twenty-seven percent of all victimizations
of women. Many judges and lawyers familiar with domestic violence have emphasized that
intervening in domestic violence is a critical task for the legal system. See National Council
of State and Juvenile Judges, Family Violence: A Model State Code (1994) ("Domestic and
family violence must be reduced and prevented. When it occurs we must intervene
effectively. Our best hope to do so requires strong public policy against domestic and family
violence and begins with appropriate legislation to that end."); see also Howard Davidson,
The Impact of Domestic Violence on Children: A Report to the President of the American
Bar Association 2 (1994) ("The time has come for the entire legal profession to scrutinize
and respond to this problem [of domestic violence]. The law must protect children who live
in violent home environments. The law must work to save lives, to protect abused parents
and their children by removing violent abusers, and to protect victim parents from continued
exposure to domestic violence.").

130 Harris Meyer, The Billion-Dollar Epidemic, Am. Med. News, Jan. 6, 1992, at 7.

131 See Novello, supra, note 129.

132 Domestic violence accounts for seventeen percent of women's visits to

emergency rooms. BJS, Pub. No. NCJ-1569212, Violence Related Injuries Treated in
Hospital Emergency Departments 5 (1997). In a study in a metropolitan emergency
department, twenty-eight percent of women presenting for domestic violence were
hospitalized, thirteen percent required major medical treatment, and forty percent had
previously required medical care for domestic abuse. McCue, supra note 12, at 80. A study
randomly reviewing approximately 3,600 medical records revealed that forty percent of
women's injuries resulted from intentional assault by an intimate. See id at 81 (citing study).
One study reports that thirty-two percent of domestic violence victims seeking treatment
suffered fractures, eleven percent lacerations and nine percent had been beaten to
unconsciousness. Id. at 80 (citing study). The author of a comprehensive work on domestic
violence writes that, "[p]regnancy is no protection from abuse and may even incite batterers
to greater violence." Id at 83. Between twenty-five and fifty percent of abusive husbands
batter pregnant wives. Id Domestic violence assaults result more frequently in medical care
(twenty-seven percent versus fourteen percent) and in hospitalization (fifteen percent versus
eight percent) than stranger assaults. See Meyer, supra, note 130, at 4.

133 McCue, supra note 12, at 103 (citing studies).



34 Columbia Journal of Gender and Law [Vol. 11:1

heaped upon children by domestic violence. 134 Substantial resources of the
criminal justice system must be committed when the state fails to intervene
and the violence is allowed to escalate. 35

By looking away from the statistics and focusing instead on the
secondary harm136 subset of psychological harm to domestic violence
victims, Professor Mills makes the case that mandated prosecution
procedures are not justified. Mills argues that forcing a victim to participate
in the criminal process can result in psychological trauma.137

134 In seventy percent of the homes where the woman is battered, children are

victims of abuse or neglect. See id. Children in violent homes most commonly suffer
"depression, anxiety, suicidal tendencies, phobias, withdrawal and overt psychoses." Id. A
recent American Bar Association [hereinafter ABA] report investigated and reported on the
impact of domestic violence on children. The ABA reported that 3.3 to 10 million children
witness domestic violence annually. ABA, The Impact of Domestic Violence on Children
1-2 (1994) (citation omitted). About eighty-seven percent of children in homes with
domestic violence witness the abuse. Id. (cite omitted). In a study, from a sample of 146
children, all sons over fourteen attempted to intervene and stop violence towards their
mothers. Sixty-two percent were injured in the process. McCue, supra note 12, at 103 (citing
study).

135 In one study of over fifty domestic violence homicides, over fifty percent had

police response to the home five or more times before the homicide occurred. The murder of
intimates accounted for fifteen percent of the 22,540 murders nationwide in 1992. See
Greenfield et al., supra note 129, at 1. Seven percent of prison inmates are incarcerated for
violence against intimates. Id. at 7. Left unchecked, domestic violence can lead not only to
murder, but also to rape. Sexual assault is often an integral component of domestic violence.
Forty percent of battered women are forced into sex by their intimate partner, and half of all
rapes of women over thirty are by intimate partners. McCue, supra note 12, at 83 (citing
studies). Two independent studies reached the same result that one in every seven women
who had ever been married said they were raped by a husband or ex-husband. Id. at 82
(citing studies).

136 "Secondary harm," the basis of victim participation laws, is conceptually much

broader than "psychological harm." As the laws of participation have emerged, the basis of
these laws has not been narrowly circumscribed to the resolution of psychological trauma.
See Douglas E. Beloof, The Third Model of Criminal Process: The Victim Participation
Model 99 Utah L. Rev. 289, 297-98 ("The resolution of psychological trauma has not
emerged as the main measure of victim participation [or non-participation], but is only one
part of according victims fairness, dignity and respect.").

137 Identifying eight criteria adapted from work on the psychological treatment of
children, Professor Mills identifies how state actors inflict psychological harm by mandatory
prosecution procedures. See Mills, supra note 121, at 586-609. First, the state process
rejects the victim when the police fail to identify the "primary aggressor," and police and
prosecutors routinely discount or ignore the opinion of the battered woman. Id. at 587-89.
Second, victims are degraded when they subpoena the victim to testify against her will and
publicly question the truth of her testimony. Id at 589-90. Third, victims are terrorized by
compelling the "battered woman to choose between the terrifying anger and the state's
equally terrifying threats." Id. at 591. Fourth, the victim is isolated by making state
compensation funds for therapy and medical expenses contingent on cooperation with the
authorities. Id. at 591-92. Fifth, there is mis-socialization when a woman is, among other
things, forced to commit perjury. Id. at 592-93. Sixth, victims are exploited when they are
used as individuals in a social battle against all batterers. Seventh, the state actor's emotional



Let the Truth Be Told

Mills is correct that the criminal process can harm individual
domestic violence victims. It hardly enhances the victim's dignity or
autonomy to arrest him or her regardless of (or perhaps because of) the
victim's fear or 'helplessness.' That criminal processes can inflict
secondary harm and actually injure individual victims of crime is not
controversial. Secondary harm "comes from governmental processes and
governmental actors within those processes."' 38 The concept of secondary
harm is the basis for victims' civil rights of participation in the criminal
process. 39 The fact that the victim suffered the primary harm of the crime,
and may suffer secondary harm from the criminal process has resulted in
victims obtaining many due process-like rights in the criminal system. 40

Among others, these rights include the right to consult with prosecutors
about the charge or plea bargain, the right to attend the trial, and the right to
allocute at sentencing. 14 1 Thirty-one states granting crime victims rights of
participation explicitly base these rights on the concepts of "dignity,"
"fairness," and "respect."' 42 Denying the victim participation rights inflicts
secondary harm upon the victim because it injures the dignity of the victim,
is disrespectful to the victim and is unfair to the victim. 43 Forcing the
victim to participate is no different. "Implicit in victim participation laws is
the idea that denying the individual victim the choice whether to participate
or not participate in the criminal process is unfair to the victim,
disrespectful of the victim, and a great affront to the victim's dignity.' 44

The fact that the individual battered woman knows what is best to
preserve her individual survival and dignity, and that this is manifested in
recantation and no-show, is not disputed here. Also, not disputed is the
assertion that the framework of gender subordination and violence provides
context to the individual crime victim's knowledge. The framework of
gender subordination means that an individual victim's choice not to
prosecute, to lie on the stand, or to no-show might not be a "free" choice.
Arguably, many victims do not exercise a truly "free" choice when they

unresponsiveness fails to respond to emotional needs of the victim "in healthy ways that
support recovery." Id. at 593. Finally, the threat of close confinement comes with a
subpoena and may prohibit the victim from taking necessary steps of self protection. Id.
Mills' rationales against mandatory prosecution procedures each fit within the Victim
Participation Model value of the primacy of the individual victim.

138 Beloof, supra note 136, at 294.

"3 9 Id. at 294-95.
140 Id.

141 Douglas E. Beloof, Victims in Criminal Procedure passim (1998).

142 Beloof, supra, note 136, app. A at 328-30.

143 Id. at 294-98.

'44 See id. at 297-98.

20021



Columbia Journal of Gender and Law [Vol. 11:1

recant, fail to appear for trial, or ask that the case be dropped.' 45 The
paradox, that a victim can make rational choices about preserving her
dignity on a micro level, while not actually having a completely free choice
on a macro level to preserve her dignity, is presently unresolvable. 146

In any event, the conflict over mandatory prosecution procedure
does not belong in a debate over how to maximize the introduction of
reliable evidence leading to truth-finding within hearsay rules. The
modification of hearsay rules to provide more reliable evidence should be
divorced from the issue of whether mandatory prosecution (including
mandatory arrest of the victim to secure testimony) is a good decision as a
policy matter. In domestic violence cases, the removal of hearsay rule
restrictions is more likely to result in truth-finding at trial. Hearsay rules
should reflect the best ways of discerning reliable evidence. To continue to
allow a hearsay rule, which denies reliable evidence to the fact-finder for
the purpose of providing a procedural mechanism to defeat mandatory
prosecution, is to use the wrong tool for the job, and corrupts the function of
the hearsay rule. A policy decision giving the crime victim the choice of
whether to prosecute is not primarily a debate about the admissibility of
reliable evidence, but about whether the primacy of the individual crime
victim trumps the efficient suppression of domestic violence. Other
decisions about whether to prosecute batterers against the will of the
victims, are policy decisions within the scope of prosecutorial discretion, or
ultimately, within the authority of legislatures to limit prosecutorial

145 Maureen C. McHugh, Irene Hanson Frieze & Angela Browne, Research on

Battered Women and Their Assailants in Florence L. Denmark & Michelle A Paludi,
Psychology of Women: A Handbook of Issues and Theories 513 (1993) (surveying
psychological theories of the pathology of batterers and victims of domestic violence).

146 This split in opinion, about whether there should be mandatory prosecution

procedures, is familiar as a conflict between the Crime Control Model value of efficient
suppression of domestic violence crime and the Victim Participation Model value of the
primacy of the individual domestic violence victim. The first and second models are the
Crime Control Model, representing protection of society embodied in the value of efficient
suppression of crime, and the Due Process Model, representing the value of the primacy of
the individual defendant. The third model, the Victim Participation Model, represents the
value of the primacy of the individual victim. Professor Hanna's recommendation, that
domestic violence victims be compelled to testify even if arrest is necessary to ensure
testimony, fits in the Crime Control Model value of efficient suppression of (domestic
violence) crime. The three model theory deals with the paradox in a particular way. The
individual victim operating at a micro level of dignity (saving her life, health, and children)
is placed within the value of the primacy of the individual victim (or the Victim Participation
Model). The value of primacy of the individual victim assumes the victim has free will and
should be able to exercise autonomy to make decisions, at least on a micro level. The other
half of the paradox, that the framework of gender subordination means the victim has no true
"free will," is placed in the Crime Control Model. Such placement is appropriate where
society decides what is best for an entire category of victims. The placement of each of the
two truths in the paradox within the three model framework allows both to be respected as a
meaningful and competing truth.



Let the Truth Be Told

discretion. Any battle over the wisdom of a victim's veto over prosecution
should be waged in those forums. A victim's veto over mandatory
prosecution should be placed in an appropriate procedural context removed
from the hearsay rules in order to avoid corruption of the hearsay rule
function of truth-finding.

VII. CONCLUSION

Hearsay rules are the wrong context in which to implement policy
choices about mandatory prosecution forged within competing values of
efficient suppression of crime and the primacy of the individual victim. If
legislatures desire to remove the discretion of the public prosecutor and
grant the domestic violence victim a veto power over the decision to
prosecute, they should do so as a rule of criminal procedure, and not by
perpetuating a hearsay status quo that suppresses truth-finding. Even
among pro- and anti- mandatory prosecution factions, there should be a
consensus that initial reports by domestic violence victims should be
admissible.

Hearsay rules should be altered to let the truth be told in domestic
violence cases. Hearsay rules were passed in a time when domestic
violence cases were not well understood. Within the conventions of
hearsay, truth-finding is the primary value. In light of the phenomenon of
mass recantation and no-show unique to domestic violence victims, the
truth-finding value is promoted by hearsay rules that admit the initial
disclosure of abuse as substantive evidence. The hearsay exceptions
proposed in this article are within constitutional limits and resolve
constraints on truth-finding in domestic violence cases.

2002]