Indiana Law Review


Evidentiary Issues in Federal Prosecutions
OF Violence Against Women

Tom Lininger*

In the last decade, the federal government has played an increasing role in the

prosecution of violence against women. ^ Beginning with the passage of the
Violence Against Women Act ("VAWA") in 1994,^ Congress has established
several new federal offenses involving violence against women.^ The number of
charges filed under these statutes has steadily increased.'* The United States

* Assistant Professor, University ofOregon School ofLaw. B.A., 1 988, Yale University;

J.D., 1991, Harvard Law School. As a federal prosecutor, the author obtained the first conviction
in the nation under a 1996 provision of the Violence Against Women Act, 18 U.S.C. § 922(g)(9).
Bonnie Campbell, the Director ofthe U.S. Department ofJustice's Violence Against Women Office
during the Clinton Administration, has given the author a commendation as "a national leader in

the prosecution ofdomestic violence." The author thanks the following students who helped with
the rese2u-ch for this article: James Avery, Ray Comwell, Shawn Dickey, Ivan Gardzelewski, Brian

Haaland, Michael Harris, Ricardo Juarez, Michael McClaren, Andy Moore, and Derek Reiman.

The author is also grateful for data compilations obtained from Margaret Groban of the Office on

Violence Against Women at the U.S. Department of Justice.

1

.

A number of scholars have discussed the "federalization" of domestic violence law and
other areas of the law that were historically the exclusive domain of the states. See, e.g., William

G. Bassler, The Federalization ofDomestic Violence: An Exercise in Cooperative Federalism or

a Misallocation ofFederalJudicial Resources?, 48 RUTGERS L. Rev. 1 1 39, 1 1 42 (concluding that,

"by federalizing an area of law that state courts are more capable of adjudicating. Congress has

seriously misallocated federal judicial resources"); Michelle W. Easterling, For Better or Worse:

The Federalization ofDomestic Violence, 98 W. Va. L. Rev. 933, 950-53 (1996) (advocating the

elimination of criminal offenses under VAWA); David M. Fine, The Violence Against Women Act

of1994: The Proper Federal Role In Policing Domestic Violence, 84 CORNELL L. REV. 252, 301

( 1 998) (applauding VAWA as "an appropriate congressional response to a national problem");
William P. Marshall, Conservatives and the Seven Sins ofJudicial Activism, 73 U. COLO. L. REV.

1 2 1 7, 1 227 (2002) (noting that in Congress, "Democrats seek to federalize domestic violence law");

Pamela A. Paiotopoulos, Violence Against Women Act: Federal Relieffor State Prosecutors, 30

Prosecutor 20, 30 (May/June 1996) (suggesting that the passage of VAWA is a salutary
development because states have limited resources to investigate and prosecute domestic violence

offenses).

2. Pub. L. No. 103-322 (codified as amended in various sections of 8, 16, 18, 20, 28, and

42 U.S.C). VAWA included a civil remedy that was struck down by the U.S. Supreme Court in
United States v. Morrison, 529 U.S. 598 (2000). The majority opinion noted in a footnote that the

criminal provisions of VAWA relating to interstate domestic violence were not unconstitutional
because they implicated the Commerce Power. Id. at 613 n.5.

3. These include criminal provisions pertaining to interstate domestic violence ( 1 8 U.S.C.

§ 2261), interstate violation of protective orders (18 U.S.C. § 2262), interstate stalking (18 U.S.C.

§ 2261 A), possession of a firearm by a person against whom a restraining order is pending (18
U.S.C. § 922(g)(8)), and possession of a firearm by a person convicted of a misdemeanor crime of

domestic violence (18 U.S.C. § 922(g)(9)). All ofthese statutes took effect in 1995, except for 18

U.S.C. § 922(g)(9), which took effect in 1996.

4. According to statistics maintained by the Executive Office of United States Attorneys



688 INDIANA LAW REVIEW [Vol. 36:687

Department of Justice has also intensified its commitment to prosecuting
violence against women in Indian country, where the United States has
jurisdiction over certain major crimes such as rape and sexual assault.^ In 1995,

(EOUSA), the number of cases filed under 18 U.S.C. §§ 922(g)(8), 922(g)(9), 2261, 2261 A, and

2262 have climbed in almost every year since the enactment of VAWA in 1994. In 1995, three
cases were filed under these provisions. In 1996, eighteen cases were filed. In 1997, fifty-two

cases were filed. In 1998, fifty-eight cases were filed. In 1999, 152 cases were filed. In 2000, 234

cases were filed. In 2001, 208 cases were filed. In 2002 (based on extrapolation of statistics

compiled through June 2002), 276 cases were filed. The average annual increase in case filings was

1 34% during this period. It appears that most of the VAWA prosecutions have involved firearms
charges under 18 U.S.C. §§ 922(g)(8), 922(g)(9). For example, under 18 U.S.C. § 922(g)(8) (the

gun ban while a restraining order is pending) federal prosecutors filed three cases in 1 996, thirteen

in 1997, twelve in 1998, thirty-six in 1999, fifty-five in 2000, and sixty-eight in 2001, the last year

for which complete data are available. Under 18 U.S.C. § 922(g)(9) (the gun ban for convicted

domestic abusers) federal prosecutors filed one case in 1996, ten in 1997, sixteen in 1998, sixty-

eight in 1999, 159 in 2000, and 125 in 2001. The foregoing figures were provided to this author

in a series of reports faxed from EOUSA in July 2002 and January 2003 (on file with the author).
The statistics in these reports were derived from data submitted regularly to EUOSA by the ninety-
four United States Attorneys' Offices. The reports included all cases in which the above-listed

statutes were charged, even if these statutes were not the lead charges. It is important to note that

prior to 1999, the United States Attorneys' case management system did not include complete

statutory citations, so the figures in the reports may underestimate the number ofcases brought prior

to 1999.

5. This jurisdiction arises under the Major Crimes Act, 18 U.S.C. § 11 53. Tracy A. Henke,

Principal Deputy Assistant Attorney General at the Office of Justice Programs in the U.S.

Department ofJustice, testified before the Senate Indian Affairs Committee on March 5, 2002, that

the U.S. Department of Justice will strive to ensure "no domestic violence and sexual assault

victims fall through the cracks" on Indian reservations. Her written testimony is available on the

internet at http://www.usdoj.gov/otj/statementtracy/03-05-2002.htm. According to the Bureau of

Justice Statistics, rape and sexual assauh are more prevalent among American Indians than among

the rest of the U.S. population. Between the years 1992 and 1996, seven out of 1000 American

Indians were victims ofrape or sexual assault, compared with two out of 1000 whites, three out of

1 000 blacks, and one out of 1000 Asians. Lawrence A. Greenfield & Steven K. Smith, American
Indians and Crime, Bureau ofJustice Statistics Report Number NCJ- 1 73386, February 1 999, at 3,

available at http://www.ojp.usdoj.gov/bjs/pub/. Data in this report show that in 1997, federal

prosecutors brought 1 126 cases against American Indians, and 47.5 % of these prosecutions were
for crimes ofviolence; by contrast, only 6.7% of all federal prosecutions in that same year involved

crimes of violence. Id. at 30. Overall, the number of federal prosecutions involving rape and

sexual assault seems to be increasing. In 1994, the United States prosecuted 221 defendants on

charges of rape, and ninety-three defendants on other sex offense charges. In 1995, the number of

rape cases was 258, and the number ofcases involving other sex offenses was 137. In 1 996, these

numbers were 275 and 388. In 1997, these numbers were 291 and 382. In 1998, these numbers

were 307 and 472. The data were categorized differently after 1998, so it is difficult to evaluate

whether this trend continued. The foregoing figures are set forth in the Bureau ofJustice Statistics'

Compendium of Federal Justice Statistics for the years 1994 through 1998 (NCJ- 163063, NCJ-



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 689

the Justice Department created a special office—^the Violence Against Women
Office—which is charged with coordinating the prosecution ofVAWA offenses,
among other duties.^

As the number of federal prosecutions of violence against women has
increased, so too has interest in revising the Federal Rules of Evidence (FRE) to

facilitate such prosecutions. In 1995, for example, Congress passed a new
evidentiary rule, FRE 413, to liberalize the admission of prior crimes evidence
in federal prosecutions for sexual assault.^ Some in Congress have sought to
relax the ban on propensity evidence in other prosecutions of violence against

women.^ Other recent proposals would amend the Federal Rules of Evidence to

164259, NCJ-172849, NCM76328, and NCJ-180258, respectively). All of these reports are

available on the Internet at http://www.ojp.usdoj.gov/bjs/pub/ (last visited Jan. 30, 2003). While

the figures for federal rape and sexual assault cases do not indicate which portion ofthe defendants

were Native Americans, it is reasonable to assume that American Indians compose a large subset

of the defendants in these cases, because federal jurisdiction over such offenses only arises in

federal enclaves such as Indian reservations and military bases, and prosecutions of military

personnel are not handled by the U.S. Department of Justice. See United States v. LeMay, 260 F.3d

1018, 1030 (9th Cir. 2001) (defendant, a Native American prosecuted for child molestation,

claimed that the liberal standard for admitting prior crimes evidence under Federal Rule of

Evidence 414 violated the Equal Protection Clause because most defendants who are prosecuted

federally for such offenses are Native Americans; the court noted the disproportionate effect but

rejected the Equal Protection claim).

6. During the Clinton Administration, this office was called the Violence Against Women
Office. After George W. Bush became president in 2000, the name of the office was changed to

the Office on Violence Against Women. In addition to assisting prosecutors who are handling

VAWA cases, the office performs other functions such as administering over $1 billion in grant
funds. More information about the office is available at its web site at http://www.ojp.usdoj.gov/

vawo/ (last visited Jan. 30, 2003).

7. Rules 413 through 415, admitting prior bad acts to show propensity in cases involving

sexual assault or child molestation, are unique in that these rules were not drafted by the Advisory

Committee and promulgated through the Rules Enabling Act, as were most of the other Federal

Rules ofEvidence. These rules were simply created by Congress. The Judicial Conference actually

opposed these rules, objecting to the prejudicial effect of the evidence that the rules would admit,

as well as numerous drafting errors in the rules. 1 59 F.R.D. 51,52(1 995). For a further discussion

ofthe "politicization" ofthe Federal Rules ofEvidence, see Daniel J. Capra, Recipefor Confusion:

Congress and the Federal Rules ofEvidence, 55 U. MIAMI L. Rev. 691 (2001) (discussing Rule

704(b), the "Hinckley Rule"). Another useful resource is the transcript from a symposium held

during the annual meeting ofthe Association ofAmerican Law Schools' Evidence Section, entitled.

The Politics of[Evidence] Rulemaking, 53 HASTINGS L.J. 733 (2002) (focusing on Rules 413-15

and Rule 704(b)); see also Eileen A. Scallen, Analyzing "The Politics of[Evidence] Rulemaking,
"

53 Hastings L.J. 843 (2002) (commenting on symposium).

8. For example, Senator John Kyi proposed a bill in 1995 that would have suspended Rule

404(b) in certain cases involving domestic violence. A copy ofthe bill, S. 1483, is available on the
internet at http://nsi.org/Library/Legis/billl483.txt (last visited Jan. 30, 2003). In 1997, Senator

Orrin Hatch offered a similar proposal and incorporated into the Omnibus Crime Control Bill, S.



1

690 INDIANA LAW REVIEW [Vol. 36:687

admit out-of-court statements by victims of domestic violence.^ States have
innovated a number of special evidentiary rules for cases involving domestic
violence, '° and the suitability ofthese rules for federal court is an open question.

This short essay will consider whether the federal criminal justice system

would benefit from adopting some of the new evidentiary rules that states have
created for cases involving violence against women. In particular, this essay will
address three questions. First, should the federal courts permit impeachment of
a testifying defendant with his prior misdemeanor crimes involving domestic
violence? Second, should the federal courts freely admit evidence of prior

similar conduct to show propensity in a prosecution for a VAWA offense?

3, § 713, <3v<a[i7aZ?/e a/ http://www.airportnet.org/depts/federal/legisla2/s3.htm (last visited Jan. 30,

2003). Neither Senator Kyi's proposal nor Senator Hatch's proposal was ever adopted by

Congress.

9. Douglas E. Beloof& Joel Shapiro, 1 1 Colum. J. Gender& L. 1,14 (2002) (suggesting
that PRE 803 be amended to admit out-of-court statements by victim to police within twenty-four
hours of alleged domestic violence); Neal A. Hudders, Note, The Problem of Using Hearsay in

Domestic Violence Cases: Is a New Hearsay Exception the Answer?, 49 DUKE L.J. 1041, 1060

(2000) (arguing that after Congress has created special evidentiary rules for prosecutions ofsexual

assault and child molestation, a special hearsay exception for domestic violence cases would be

appropriate); Donna M. Matthews, Making a Crucial Connection: A Proposed Threat Hearsay

Exception, 11 GOLDEN GATE U. L. REV. 117, 160-64 (1997) (urging that PRE 804 be amended to

admit out-of-court statement by deceased victim of domestic violence).

10. David M. Gersten, Evidentiary Trends in Domestic Violence, 72 Pla. B. J. 65, 65

(July/Aug. 1998) ("Recently, a number of states have amended both their statutes and evidence

codes to ease the prosecution of domestic violence crimes"). Several authors have addressed the

merit of these approaches in the context of state prosecutions of domestic violence, but little

scholarship has considered whether the innovative state rules should be imported to federal court.

See Lisa Marie De Sanctis, Bridging the Gap Between the Rules ofEvidence andJusticefor Victims

ofDomestic Violence, 8 YALE J. L. & Peminism 359 (1996); Peter R. Dworkin, Confronting Your
Abuser in Oregon: A New Domestic Violence Hearsay Exception, 37 WILLAMETTE L. REV. 299

(2001); David M. Gersten, Evidentiary Trends in Domestic Violence, 72 Fla. Bar J. 65 (1998);

Neal A. Hudders, The Problem ofUsing Hearsay in Domestic Violence Cases: Is a New Exception

the Answer?, 49 DUKE L.J. 1041 (2000); Sarah J. Lee, The Search for the Truth: Admitting

Evidence ofPrior Abuse in Cases ofDomestic Violence, 20 U. HAW. L. REV. 221 (1998); Linell A.

Letendre, Beating Again andAgain and Again: Why Washington Needs a New Rule ofEvidence

Admitting Prior Acts ofDomestic Violence, 75 WASH. L. REV. 973 (2000); Lisa A. Linsky, Use of

Domestic Violence History Evidence in the Criminal Prosecution: A Common Sense Approach,

16 Pace L. Rev. 73 (1995); Donald W. North, A License to Kill Your Spouse: A Critical Look at

the Admissibility of Prior Acts Evidence as it Relates to the Louisiana Domestic Violence

Exception, 11 S.U. L. REV. 181 (2000); Debra Hayes Ogden, Prosecuting Domestic Violence

Crimes: Effectively Using Rule 404(b) to Hold Batterers Accountable for Repeated Abuse, 34

GONZ. L. Rev. 361 (1999); Myma S. Raeder, The Admissibility ofPriorActs ofDomestic Violence:
Simpson and Beyond, 69 S. Cal. L. Rev. 1 463 ( 1 996); Jeffrey S. Siegel, Timing Isn 't Everything:

Massachusetts ' Expansion ofthe Excited Utterance Exception in Severe Criminal Cases, 79 B.U.

L.Rev. 1241 (1999).



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 691

Third, should the federal courts recognize a new hearsay exception for victims
of domestic violence who speak to the pohce shortly after they are abused,
whether or not the circumstances meet the requirements for traditional hearsay

exceptions such as the excited utterance rule? Each of these questions will be

addressed in turn below.

I. Impeachment with Prior Misdemeanor Crimes of
Domestic Violence

Currently, under PRE 609(a), a witness can be impeached with two
categories of convictions: 1) felonies of any sort,^' or 2) misdemeanor crimes

involving dishonesty or false statement.'^ The rationale for admitting felonies

to impeach a witness is that "the desperate person who would commit [a felony]
would also lie under oath."'^ The rationale for admitting misdemeanor

convictions involving dishonesty or false statement is self-evident: a conviction

for dishonest conduct in the past suggests that the witness may testify falsely in
the present proceeding. The two-tiered categorization ofconvictions under ERE
609(a) is consistent with a long tradition of case law preceding the adoption of

the Rules.''

States have taken various approaches to impeachment with prior convictions.

Twenty-five states have adopted FRE 609(a) virtually verbatim, and these states
allow impeachment with either felonies or misdemeanors involving dishonesty.'^

1 1

.

More precisely, FRE 609(a)( 1 ) applies to crimes "punishable by death or imprisonment

in excess of one year," which will be referred to hereafter by the short-hand term "felonies." Fed.

R.EVID. 609(a)(1).

1 2. The House-Senate Conference Committee Report on the original version of FRE 609(a)

included this explanation: "By the phrase 'dishonesty and false statement,' the Conference means

crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or

false pretense, or any other offense in the nature of crimen falsi, the commission of which involves

some element of deceit, untruthfulness, or falsification bearing on the accused propensity to testify

truthfully," r^prm/ecim Christopher B. Mueller «fe Laird C. KiRKPATRiCK, 2002 Federal Rules
OF Evidence with Advisory CommitteeNotes, Legislative History, and Case Supplement

146 (Aspen 2002).

13. United States v. Lipscomb, 702 F.2d 1049, 1053 (D.C. Cir. 1983) (quoting trial judge's

explanation for permitting impeachment with robbery conviction).

14. When FRE 609(a) was originally adopted, the Advisory Committee's Note accompanying

this rule summarized the traditional approach to impeachment: "The weight oftraditional authority

has been to allow use of felonies generally, without regard to the nature of the particular offense,

and of crimen falsi without regard to the grade of the offense," reprinted in MUELLER &
KIRKPATRICK, supra note 12, at 142-43.

1 5. Ala. R. Evid. 609(a); Ariz. R. Evid. 609(a); Ark. R. Evid. 609(a); Del. R. Evid. 609(a);

Fla. R. Evid. 609(a); Ind. R. Evid. 609(a); Iowa R. Evid. 609(a); Maine R. Evid. 609(a); Minn.

R. Evid. 609(a); Miss. R. Evid. 609(a); Neb. R. Evid. 609(a); N.D. R. EviD. 609(a); N.H. R. EviD.

609(a); N.M. R. Evid. 609(a); Ohio R. Evid. 609(a); 12 Okla. St § 2609(a); S.C. R. EviD. 609(a);

S.D. R. Evid. 609(a); Tenn. R. Evid. 609(a); Utah R. Evid. 609(a); Vt. R. Evid. 609(a); Wa. R.



692 INDIANA LAW REVIEW [Vol. 36:687

Thirteen other states have adopted statutes that permit impeachment with
convictions but do not limit these convictions to the categories set forth in PRE
609(a); judges in these states generally exercise their discretion to admit most
felonies and also some misdemeanors involving moral turpitude and/or
dishonesty.'^ Five states allow impeachment with felony convictions, but not
with misdemeanors of any sort.'^ Five states permit impeachment with
convictions for offenses involving dishonesty or false statement, but exclude all

other convictions, even if they are felonies.'^ Montana does not allow any

EviD. 609(a); W.V. R. EviD. 609(a); Wyo. R. Evid. 609(a). The version of Rule 609(a) adopted

in Texas permits impeachment with all felonies and misdemeanors involving "moral turpitude."

Tex. R. Evid. 609(a); Arnold v. State, 36 S.W.3d 542, 546 (Tex. App. 2000) (crimes of moral

turpitude include crimes of dishonesty and false statement).

16. Colo. Rev. Stat. Ann. § 13-90-101 (West 2002) ("[T]he conviction of any person for

any felony may be shown for the purpose of affecting the credibility of such witness."); 725 III.

COMP. Stat. Ann. § 5/11 5-1 6 (West 2002) (conviction may be shown for the purpose ofaffecting

the credibility ofthe witness); La. Code Evid. art. 609-1 (West 2002) (any conviction may be used

to impeach a witness in a criminal case); Md. R. Ct. 5-609(a) (West 2002) (conviction may be used

for impeachment if "crime was an infamous crime or other crime relevant to the witness's

credibility"); Mass. Gen. Law Ann. ch. 233, § 21 (West 2002) (both misdemeanors and felonies
may be used; misdemeanors must be no older than five years, and felonies must be no older than

ten years); MO. Ann. Stat. § 491 .050 (West 2002) ("any prior criminal convictions may be proved

to affect [the witness'] credibility in a civil or criminal case"); N.C. R. EviD. 609(a) (convictions

for felonies. Class A I misdemeanors. Class 1 misdemeanors, and Class 2 misdemeanors may be
used for impeachment); N.J. R. EviD. 609 ("For the purpose of affecting the credibility of any

witness, the witness's conviction of a crime shall be admitted unless excluded by the judge as

remote or for other causes."); N.Y. CPLR Law § 4513 ("A person who has been convicted of a
crime is a competent witness; but the conviction may be proved, for the purpose of affecting the

weight of his testimony."); R.L R. EviD. 609(a) (convictions for misdemeanors not involving

dishonesty or false statement may be admitted, but the proponent must make an offer of proof

outside the presence ofthe jury so the other side can contest admissibility; this special requirement

does not apply to felonies or misdemeanors involving dishonesty or false statement); Tex .R. Evid

609(a) (impeachment permissible with prior conviction "only ifthe crime was a felony or involved

moral turpitude, regardless of punishment");Va. Code Ann. § 19.2-269 (West 2002) ("A person

convicted of a felony or perjury shall not be incompetent to testify, but the fact of conviction may

be shown to affect his credit."); Wis. Stat. Ann. § 906.09 (West 2002) (conviction for any crime

may be used for impeachment). A Georgia statute allows impeachment of a testifying criminal
defendant with unspecified types of prior convictions, but only if the defendant has "first put his

character in issue." Ga. Code Ann. § 24-9-20(b) (2002).

1 7. Cal. Evid. Code § 788 (West 2002) (only felonies can be used for impeachment); Conn.

R. Evid. § 6-7 (felonies only); Idaho R. Evid. 609 (felonies only); Ky. R. Evid. 609(a) (felonies

only); Nev. Rev. Stat. Ann. § 50.095 (Michie 2002) (felonies only).

18. Alaska R. Evid. 609(a) (for impeachment purposes, convictions are "only admissible

if the crime involved dishonesty or false statement); Haw. R. Evid. 609(a) ("For the purpose of

attacking the credibility of the witness, evidence that the witness has been convicted of a crime is

inadmissible except when the crime is one involving dishonesty."); Kan. Civ. PROC. Code Ann.



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 693

impeachment with prior convictions.*^

Oregon is the only state that has specifically tailored its version of Rule 609

for cases involving domestic violence. Prior to 2002, Oregon's Rule 609(a)

followed the federal model, permitting impeachment with felonies and

misdemeanor crimes involving dishonesty and false statement. As ofJanuary 1,
2002, a third category of convictions may be used for impeachment in Oregon.
When a defendant is prosecuted for certain crimes of violence against a family
or household member, and that defendant elects to testify, he may be impeached
under Oregon's Rule 609 with a prior misdemeanor conviction for a crime

involving assault, menacing, or harassment of a family or household member.^^

§ 60-421 (West 2002) ("Evidence of the conviction of a witness for a crime not involving

dishonesty or false statement shall be inadmissible for the purpose of imparity his or her

credibility"); MiCH. R. EviD. 609(a) (impeachable offenses are limited to crimes involving

dishonesty or false statement, or felony offenses involving theft); Pa. R. Evid. 609(a) (only

convictions for dishonesty or false statement may be used to impeach).

19. MONT. R. EviD. 609 ("For the purpose of attacking the credibility of a witness, evidence

that the witness has been convicted of a crime is not admissible.").

20. Or. Evid. Code § 609(2) now provides as follows:

(a) If a defendant is charged with one or more ofthe crimes listed in paragraph (b)

of this subsection, and the defendant is a witness, evidence that the defendant has been

convicted of committing one or more of the crimes against a family or household

member, as defined in ORS 1 35.230, may be elicited from the defendant, or established
by public record, and admitted into evidence for the purpose ofattacking the credibility

of the defendant:

(A) Assault in the fourth degree under ORS 163. 160.
(B) Menacing under ORS 1 63 . 1 90.
(C) Harassment under ORS 166.065.
(D) Attempted assault in the fourth degree under ORS 163. 160(1).
(E) Attempted assault in the fourth degree under ORS 163.160(3).

(b) Evidence may be admitted into evidence for the purpose of attacking the

credibility of a defendant under the provisions of this subsection only if the defendant

is charged with committing one or more of the following crimes against a family or

household member, as defined in ORS 135.230:
(A) Aggravated murder under ORS 163.095.
(B) Murder under ORS 1 63 . 1 1 5

.

(C) Manslaughter in the first degree under ORS 1 63. 1 1 8.
(D) Manslaughter in the second degree under ORS 1 63. 1 1 8.
(E) Assault in the first degree under ORS 1 63 . 1 85.
(F) Assault in the second degree under ORS 1 63 . 1 75

.

(G) Assault in the third degree under ORS 163.165.
(H) Assault in the fourth degree under ORS 163.1 60.
(I) Rape in the first degree under ORS 163.375(l)(a).
(J) Sodomy in the first degree under ORS 163.405(l)(a).
(K) Unlawful sexual penetration in the first degree under ORS

163.41 l(a)(a).



694 INDIANA LAW REVIEW [Vol. 36:687

In effect, misdemeanor crimes of domestic abuse are treated as if they were
felonies for purposes of impeachment under Oregon's Rule 609.

Is it possible that the federal government might adopt Oregon's approach?

Congress has recently determined that misdemeanor crimes ofdomestic violence

are equivalent to felonies for purposes ofthe federal ban on firearm possession,^'

so it is not inconceivable that Congress might one day expand Federal Rule of

Evidence 609(a) to permit impeachment ofwitnesses with misdemeanor crimes
involving domestic violence.

Before proceeding down this path. Congress should consider several flaws
in Oregon's new impeachment rule. To begin with, convictions for misdemeanor
crimes of domestic violence have dubious probative value when offered to
impeach the credibility of a witness. The tendency of a witness to commit a
misdemeanor-level assault does not suggest a tendency to lie while testifying

under oath. Most state courts that have evaluated the probative value of such
convictions for impeachment purposes have decided to exclude this evidence.

In Hunter v. Staples,^^ the South Carolina Court of Appeals considered

whether convictions for misdemeanor offenses of domestic violence should be

(L) Sexual abuse in the first degree under ORS 1 63 .427( 1 )(a)(B).
(M) Kidnapping in the first degree under ORS 163.235.
(N) Kidnapping in the second degree under ORS 163.225.

(O) Burglary in the first degree under ORS 164.225.

(P) Coercion under ORS 163.275.

(Q) Stalking under ORS 163.732.
(R) Violating a court's stalking protective order under ORS 163.750.
(S) Menacing under ORS 1 63 . 1 90.
(T) Harassment under ORS 166.065.
(U) Attempting to commit a crime listed in this paragraph.

21. 1 8 U. S.C. § 922(g)(9) (2000), also known as the "Lautenberg Amendment," prohibits the

possession ofa firearm by any person who has been convicted ofa misdemeanor crime ofdomestic

violence. Before the passage ofthe Lautenberg Amendment in 1996, the only convictions that led

to a firearms disability were felonies. Id. § 922(g)(1). During floor debates on the Lautenberg

Amendment, Senator Lautenberg stressed that he thought a misdemeanor crime of domestic

violence was just as pernicious as a felony crime. 142 Cong. Rec. SI 0,377-78 (1996); 142 CONG.

Rec. S 1 1 ,226 ( 1 996). Senator Diane Feinstein, a supporter ofthe Lautenberg Amendment, stated

the gun ban should apply to convicted domestic abusers regardless of "the classification of the

conviction" as a misdemeanor or felony. 142 CONG. Rec. SI 0,379 (1996). Senator Feinstein,

Senator Paul Wellstone, and Representative Pat Schroeder all noted the variation in states' charging

practices, which necessitated a generic federal definition of the predicate offense so that batterers

would uniformly be denied the right to possess firearms whether or not the states in which they

lived had classified domestic violence as a felony offense. 142 CONG. Rec. 1,1 10,434 (1996); 142

Cong. Rec. S 1 0,379 ( 1 996); 1 42 Cong. Rec. S 1 0,377 ( 1 996). Ifdomestic violence misdemeanors

should be treated as felonies in the context of the gun ban under 18 U.S.C. § 922(g), it is a small

step to argue that domestic violence misdemeanors should be treated as felonies in the context of

FRE 609(a).

22. 515 S.E.2d 261 (S.C. Ct. App. 1999).



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 695

admissible to impeach the credibility of a party testifying in a civil case. The
court held that "[t]he domestic violence convictions, however reprehensible, do

not establish Hunter was deceitful or untruthful," and therefore should not be
admissible to impeach his credibility.^^

Similarly, in State v. Newell,^"^ the New Hampshire Supreme Court held that
a witness could not be impeached with a prior misdemeanor conviction for

assaulting a woman, because this offense was "[not] probative oftruthfulness or
untruthfulness."^^ Other courts have reached similar conclusions about the

probative value of generic assault convictions in assessing the credibility of a

witness.^^ The Hawaii Supreme Court could not discern "any rational

connection" between "a crime ofviolence and the likelihood that the witness will

tell the truth."^^ If generic assault convictions are not probative of truthfulness,

it is difficult to understand why a subset ofassault convictions involving intimate
partners should be admissible for impeachment.^^

23. Mat 265.
24. 679A.2dll42(N.H. 1996).

25. Id. at 1146.

26. United States v. Akers, 374 A.2d 874, 878 (D.C. 1977) ("[t]he crime of assault does not

involve dishonesty or false statement," so convictions for this crime should not be used to impeach);

State V. Norgren, 616 A.2d 505, 507 (N.H. 1992) (determining that a conviction for misdemeanor

assault did not involve dishonesty and should not be used for impeachment); Commonwealth v.

Williams, 573 A.2d 536, 538-39 (Pa. 1990) (ruling that impeachment with assault conviction was

improper because offense did not involve dishonesty; error was prejudicial and required reversal);

State V. Brown, 583 N.E.2d 1331, 1334-35 (Ohio Ct. App. 1989) (determining that admission of

misdemeanor assault conviction for impeachment was error because offense did not involve

dishonesty); State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982) (ruling that aggravated assault

is not an offense that involves dishonesty).

27. Asato V. Furtado, 474 P.2d 288, 295 (Haw. 1970).

28. Perhaps one possible rationale for this distinction is that domestic assault involves

betrayal of an intimate partner—which may demonstrate dishonesty to the extent that the assailant
has implicitly pledged to protect and respect the intimate partner—while generic assault may often
involve a stranger. Such a distinction is difficult to defend, however, because generic assaults could

also involve friends or intimate partners. In fact, prosecutors often charge domestic violence

offenses under generic assault statutes, and many states do not have any domestic assault statute.

See 142 CONG. Rec. SI 1,872-78 (1996) (statement ofSen. Lautenberg). Senator Lautenberg stated:

Mr. President, convictions for domestic violence-related crimes are often for crimes,

such as assault, that are not explicitly identified as related to domestic violence.

Therefore, it will not always be possible for law enforcement authorities to determine

from the face of someone's criminal record whether a particular misdemeanor

conviction involves domestic violence.

Id; see also United States v. Barnes, 295 F.3d 1354, 1365 n.l2 (D.C. Cir. 2002) (according to

government's brief, only nineteen states have assault laws that include a relational element; the

others prosecute domestic violence under generic assault statutes). Whatever the merit of the

"betrayal theory" as a justification for admitting domestic assaults to impeach credibility, this

rationale was not invoked at any time in the legislative history of Oregon's unique impeachment



696 INDIANA LAW REVIEW [Vol. 36:687

Not only do misdemeanor assault convictions lack probative value on the
issue ofcredibility, they also pose a significant danger ofprejudice by suggesting
an inference of propensity. Indeed, the sponsors of Oregon's unusual

impeachment rule explicitly urged that propensity evidence should be admissible
in prosecutions of domestic violence. Their bill originally began as a proposal

to amend Oregon's version ofFRE 404(b) in order to liberalize the admission of
propensity evidence in domestic violence cases.^^ When the Oregon House

rule, nor did the proponents of the rule offer any explanation as to why a misdemeanor crime

involving domestic violence is probative ofcredibility. An appellate court in Texas has determined
that, in impeaching a male defendant, a misdemeanor assault on a woman should be admissible,

while a misdemeanor assault on a man should not. Hardeman v. State, 868 S. W.2d 404, 407 (Tex.

Ct. App. 1993) (interpreting Tex. R. Evid. 609(a), which permits impeachment with any felony or

a misdemeanor offense involving "moral turpitude"). The distinction drawn by the Texas court is

not dependent on the "betrayal theory" or on the nature of the relationship between the male

assailant and the female victim. Rather, the distinction appears to rest on notions of chivalry and

on the difference between the physical strength of a man and woman. Id. ("We believe an assault

by a man against a woman is generally regarded by the members of our society as more morally

culpable than some other types of assaultive crimes."). Why wouldn't an attack by a man against
a particularly weak or elderly male victim present the same "moral turpitude"?

29. The original proposal would have, inter alici, carved out the following exception to

Oregon's Rule 404: "Notwithstanding any other provision of the Oregon Evidence Code, in a

criminal action in which a defendant is charged with an offense involving domestic violence,

evidence that the defendant has committed other acts ofdomestic violence is admissible unless the

probative value of the evidence is substantially outweighed by the danger of unfair prejudice,

confusing the issues or misleading the jury." H.R. 3680, 7 1st Leg., Reg. Sess. (Or. 2001), available

fl^ http://www.leg.state.or.us/01reg/measures/hb3600.dir/hb3680.intro.html. The leading proponent

of Oregon House Bill 3680, Gina Skinner of the Oregon District Attorney's Association, testified

that the bill was modeled after California's 1 997 law admitting propensity evidence in prosecutions

of domestic violence. Ms. Skinner testified that, "ultimately, when the victim is ready to get out

of that relationship, as a system we need to be there to help them, and to be able to prosecute the

batterer for everything that they've done to that victim, and take into consideration those other acts

as part of what happened." Admissibility of Prior Domestic Violence Charges as Evidence of

Current Domestic Violence Charge: Hearing on H.R. 3680 Before the CriminalJustice Subcomm.

ofthe Oregon House Judiciary Comm., 71st Leg., Reg. Sess. 72A (Or. 2001) (statement of Gina

Skinner, Oregon District Attorney's Assoc). Representative Max Williams, Chair of the Oregon

House Judiciary Committee and co-sponsor of House Bill 3680, commented during a hearing on

April 24, 2001, that propensity evidence is valuable in domestic violence cases: "Most people

understand that the odds are that if he's been beating her for 15 years [this evidence] does have a

probative impact on whether or not it is more likely to have occurred in this case." Id. (statement

of Rep. Max Williams, Chair ofthe Oregon House Judiciary Comm.). Representative Dan Doyle,

another proponent ofHouse Bill 3680, went so far as to describe the traditional ban on propensity

evidence in domestic violence cases as an "oversight" in the Oregon Evidence Code: "Currently

under the Oregon Evidence Code, evidence of a history of abusive behavior is not admissible in

cases involving domestic violence, and this bill corrects the oversight in the that code, and ensures

that past abuses count toward the conviction of current domestic violence offenders." Id.



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 697

Judiciary Committee expressed reservations about altering Rule 404 in domestic

violence cases,^^ the proponents of the measure repackaged this proposal as an

amendment of Federal Rule of Evidence 609, suggesting that the new bill
represented a "compromise."^' The justification for the measure was never

changed, and, in particular, no proponent or legislator ever offered any analysis

as to why domestic violence misdemeanors are somehow probative ofcredibility.
The only justifications presented were thinly veiled discussions of propensity,
using language such as "accountability," rather than focusing on the probative

value of these convictions as an indication of credibility.^^

30. For example, on April 24, 2001, Representative Lane Shetterly made the following

comments in opposition to Oregon House Bill 3680:

Domestic violence is certainly one ofthe most difficult areas, and it's hard to turn away

from that. But we know that burglary, for instance, is another crime in which usually

you've caught somebody and they've got a long record of prior burglaries. Will we be

looking at propensity evidence to convict burglars next? Where does it stop once we

go this direction? I think this is a line that centuries of history have established, and it's

a line that we don't want to cross, and frankly I'm not ready to. It's been a part of our

law for centuries that we convict people on the basis of facts as applied to a particular

case, and not just an array of facts over a period of time that tend to prove that the

defendant is a bad actor and should go to jail anyway even if the facts of this particular

charge can't be proven. And I think we need to be extremely cautious as we look to go

down that road in terms of what we are doing to due process and fundamental

constitutional rights. And I admit that this is one of those areas where the constitution

gets in the way ofwhere we sometimes would like to go. But I think we need to respect

these constitutional limitations.

Id. (statement of Rep. Lane Shetterly).

31. At a hearing ofthe Subcommittee on Crime on May 1 0, 200 1 , Chair Williams announced

that Ms. Skinner and others had revamped House Bill 3680, and "this bill essentially moves this

whole issue over to a different part of the statute." Id. (statement of Rep. Max Williams, Chair of

the Oregon House Judiciary Comm.) Chairman Williams continued:

The idea here was, as we talked about this bill in its original form, was to determine if

there was a way to deal with past evidence ofactions where someone had been involved

in domestic violence against a particular family member, but yet balancing the test that

you just can't introduce that evidence necessarily for its propensity that this person had

committed the crime.

Id. Bill Houser, representing the Oregon Criminal Defense Attorneys' Association, did not oppose

the new version of House Bill 3680: "This is a reasonable compromise in our opinion." Id.

Representative Shetterly also acquiesced: "I'm not enthusiastic about it, but I can support. I do

have a question about adding a B misdemeanor to the list of impeachment crimes, but if Mr.
Houser's willing to sign off, then I'm not going to stand in the way." Id.

32. See, e.g., written testimony of Katy Yetter, staff attorney with the Oregon Coalition

Against Domestic and Sexual Violence, before the Oregon Senate Judiciary Committee, June 1 2,

200 1 ("Allowing in evidence ofprior convictions ofmisdemeanor domestic violence crimes (among

others) for the purpose impeaching the perpetrator's credibility is one way to hold batterers

accountable for their actions."). Id. (statement of Katy Yetter, Staff Attorney, Oregon Coalition



698 INDIANA LAW REVIEW [Vol. 36:687

No less an authority than the U.S. Supreme Court has held that admission of
a prior assault conviction in a criminal prosecution for assault could give rise to

harmful inferences of propensity. In Old Chiefv. United States^^ the defendant
was tried on various charges including assault and possession of a firearm as a
felon. The defendant offered to stipulate to the fact that he was a felon, rather
than allow the prosecution to inform the jury of his prior felony conviction for

assault. The prosecution declined to stipulate, and insisted on presenting
evidence that showed the nature of the predicate offense. The Supreme Court
reversed, holding that the similarity between the past assault conviction and the

present assault charge was too prejudicial: "Old Chief sensibly worried that the
prejudicial effect of his prior assault conviction, significant enough with respect
to the current gun charges alone, would take on added weight from the related

assault charge against him."^'* This analysis should underscore concerns about

the prejudice that could result from Oregon's approach of admitting prior

convictions for domestic abuse in a prosecution for a similar offense.

Ordinarily, the prejudicial effect ofadmitting prior similar acts in a criminal

prosecution is addressed under FRE 404(b), but the expansion ofFRE 609(a) to
include domestic violence misdemeanors would render FRE 404(b)
inconsequential. Trial judges would pay little attention to an objection under
FRE 404(b) if the proffered evidence were cross-admissible under the revised
version of FRE 609. Trial judges would be aware that appellate courts would
likely dismiss as harmless any error in admitting such evidence under FRE
404(b) ifthe evidence were separately admissible under FRE 609.^^ What would
the trial judge have to lose by admitting the evidence under both theories? In

fact, the trial judge would increase her odds ofwithstanding appellate review by
relying on both theories, either ofwhich would be sufficient to uphold admission

of the evidence. Thus, the amendment ofFRE 609(a) to include misdemeanor
crimes of domestic violence would effectively gut FRE 404(b) in prosecutions
of violence against women.

There are a number of other harmful effects to consider. The adoption of
Oregon's impeachment rule in federal court would cause great disparity between

the treatment of Native Americans and the treatment of other ethnic groups in

prosecutions of violence against women. Native Americans charged with such
offenses are generally prosecuted in federal court (where the new impeachment
rule would apply) while other defendants charged with violence against women
are generally prosecuted in state court (where the traditional impeachment rules

would apply). This disparate treatment might not rise to the level ofviolating the
Equal Protection Clause,^^ but it is objectionable as a matter of policy. Why

Against Domestic and Sexual Violence).

33. 519 U.S. 172(1997).

34. Mat 185.
35. See, e.g.. United State v. Cordoba, 104 F.3d 225, 229 (9th Cir. 1997); United States v.

Smith, 49 F.3d 475, 478 (8th Cir. 1995).

36. In United States v. LeMay, 260 F.3d 1018, 1030-31 (9th Cir. 2001), aNative American

man charged with child molestation challenged FRE 414, which admits prior acts of sexual



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 699

should Native Americans have fewer rights than other citizens in prosecutions

for certain categories of crimes?

Another danger is that the liberalized admission of domestic violence

misdemeanors in federal court could actually impose burdens on victims of

domestic violence. If PRE 609(a) were amended simply to include domestic
violence misdemeanors on the list ofimpeachable offenses—without limiting the
application of this rule to criminal defendants—^then conceivably such
convictions could be admitted against victims who testified against their
assailants. It is well established that victims of domestic violence often commit

acts of violence themselves, either against their batterers or against their

children.^^ PRE 609(a)(1) actually employs a more permissive balancing test
when convictions are offered against witnesses as opposed to the accused.^^ A
tragic irony could result: prior crimes ofdomestic violence would be more easi ly
admissible against the testifying victim than against his or her assailant.

Given the questionable theoretical underpinnings ofOregon's approach and

the numerous practical problems that could arise, one would expect that

proponents of this unusual impeachment rule would offer a compelling

justification for departing from the traditional limitations on impeachable

offenses. But no such justification has ever been offered. As State
Representative Bob Ackerman noted during a hearing of Oregon's House

molestation to show propensity, on the ground that this rule violates the Equal Protection Clause

due to its disproportionate impact on Native Americans. The Ninth Circuit rejected LeMay's

argument, holding that, "this disproportion, if true, would arise simply because the federal

government only has jurisdiction over crimes such as child molestation when they arise on Indian

reservations, military bases, or other federal enclaves. There is no evidence of intent on the part

ofCongress to discriminate against Native Americans." Id. at 1030. The Ninth Circuit also found

that "Rule 414 does not burden a fundamental right," and "sex offenders are not a suspect class,"

so the rule could be upheld on the ground that it "bears a reasonable relationship to a legitimate

governmental interest," to wit, "[pjrosecuting crime effectively." Id. at 1030-31.

37. See Mary E. Asmus et al., Prosecuting Domestic Abuse Cases in Duluth: Developing

Effective Prosecution Strategiesfrom Understanding the Dynamics ofAbusive Relationships, 15

Hamline L. Rev. 115, 151-53 (1991) (noting that, in training police to respond to cases in which

women have attacked their male partners, it is sometimes difficult to distinguish between self-

defense and mutual violence); Melissa Hooper, When Domestic Violence Is No Longer an Option:

What to do with the Female Offender, 11 BERKELEY WOMEN'S L.J. 168, 173, 176-77 (1996)

(observing that women may commit domestic violence as a result ofthe domestic violence that has

been committed against them); see also Bill Bishop, Abused Offenders: A Strong Link Exists

Between Domestic Violence and Crimes Committed by Women, a Study Finds, EUGENE Register-

GUARD, Oct. 27, 2002, at Al (documenting that victims of domestic violence may respond with

their own crimes).

38. In order to admit a felony conviction for impeachment of a witness, the proponent must

demonstrate that the probative value of the conviction is not substantially outweighed by its

prejudicial effect. By contrast, in order to admit a felony conviction for impeachment of the

accused, the proponent must demonstrate that the probative value of the conviction outweighs its

prejudicial effect—a more difficult test for the proponent. Fed. R. Evid. 609(a).



700 INDIANA LAW REVIEW [Vol. 36:687

Judiciary Committee, "[n]o evidence has been shown before the committee today
that the prosecutors need this [bill] as a tool to secure convictions. They're not

telling me they're losing cases because this bill is not law."^^ Research for the
present article has not discovered any scholarship indicating that the restrictions

of the current federal impeachment rules are preventing prosecutors from
winning convictions in VAWA cases. The U.S. Department of Justice has not
sought a change in impeachment rules for prosecutions of violence against
women: in fact, there are only two acquittals per year among the hundreds of
VAWA cases prosecuted in federal court.'^^ Prior sex crimes are already admitted
freely pursuant to FRE 413 in federal prosecutions for sexual offenses, and prior
misdemeanor crimes of domestic violence can already be admitted under FRE
404(b) to show motive, intent, absence ofmistake, and common plan or scheme.
In VAWA prosecutions where the defendant denies that he has committed
domestic violence before, prosecutors can invoke FRE 801 to impeach the
defendant with his prior statements, including guilty pleas'^' or out-of-court

threats ofviolence."*^ There simply has been no showing ofa sufficiently urgent
reason to discard the time-honored approach to impeachment under FRE 609.

II. Prior Acts of Domestic Violence as Proof of Propensity

Another area in which states have innovated special rules for domestic

violence cases is the use of propensity evidence. In federal court, FRE 404(b)
provides that evidence of prior crimes, wrongs, or acts cannot be introduced to

prove the character of a person in order to show action in conformity therewith.

39. Comments of Representative Robert Ackerman during hearing of Criminal Justice

Subcommittee of Oregon House Judiciary Committee, Apr. 24, 2001. Admissibility of Prior

Domestic Violence Charges as Evidence ofCurrent Domestic Violence Charge: Hearing on MR.

3680 Before the CriminalJustice Subcomm. ofthe Oregon House Judiciary Comm. , 7 1 st Leg., Reg.

Sess. 72A (Or. 200
1 ) (statement of Rep. Robert Ackerman).

40. According to data supplied to the author in a fax from the Executive Office of U.S.

Attorneys on January 16, 2003, the average number of defendants acquitted in VAWA cases
between 1996 and 2002 was two per year. Zero defendants were acquitted in 1995; zero in 1996;

zero in 1997; two in 1998; one in 1999; four in 2000; five in 2001; and three in 2002 (based on

extrapolation of statistics compiled through June of2002). A facsimile from the Executive Office
ofU.S. Attorneys to author (Jan. 16, 2003) [hereinafter Executive Office ofU.S. Attorneys fax] (on

file with author).

41. Prior guilty pleas to crimes of domestic violence would be admissible under FRE

801(d)(1)(A) to impeach the defendant's testimony that he has not committed domestic violence

in the past.

42. Such threats would not be admissible under FRE 801(d)(1)(A) because they were not

made in court, but they might nonetheless be admissible to impeach the defendant's assertion that

he has not previously committed domestic violence. The statements would overcome a hearsay

objection because they are admissions by a party opponent under FRE 801 (d)(2)(A), and they could

be categorized as non-hearsay under FRE 801 (c) in that they are verbal acts rather than statements

offered for the truth of the matter asserted.



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 701

The purpose of this rule is to prevent the jury from drawing an inference of

propensity
—

"once a criminal, always a criminal.'"*^ While most states have

adopted this rule in one form or another, a growing number ofstates have created
exceptions for prosecutions of domestic violence, permitting the introduction of

evidence concerning prior abuse to prove that the defendant committed the

presently charged offense."^"*

The California State Assembly was at the forefront of this movement,
passing a law in 1996 that essentially waived the ban on propensity evidence in

prosecutions of domestic violence. Senate Bill 1876, later codified in Section

1109 of the California Evidence Code,'*^ was known as the "Nicole Brown

43. For an excellent discussion of the theory underlying FRE 404(b), see Edward J.
IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 1 :03 (Callaghan 1984); see also David P.

Leonard, Character and Motive in Evidence Law, 34 LOY. L.A. L. REV. 439 (2001); David J.

Leonard, In Defense ofthe Character Evidence Prohibition: Foundations ofthe Rule Against Trial

by Character, 73 IND. L.J. 1161 (1998).

44. Several states have created what is in effect a domestic violence exception to the ban on

propensity evidence. See Alaska R. Evid. 404(b)(4) (admitting evidence of prior domestic

violence against same victim, or evidence of prior interference with a report of a crime involving

domestic violence); Cal. Evid. Code § 1 109 (admitting evidence of prior domestic violence to

show propensity); 725 ILL. COMP. Stat. 5/1 15-20 (admitting evidence of prior domestic violence

against same victim); La. R. Evid. 404(b)(2) (allowing evidence ofprior domestic violence to show

violent propensity ofabuser where victim is prosecuted for attacking abuser, and victim raises claim

of self-defense); see also Ariz. R. Evid. 404(c) (admitting evidence of prior sexual assault to show

propensity, where defendant is now charged with sexual assault); Fla. R. Evid. 404(2)(b)

(admitting evidence ofprior child molestation to show propensity, where defendant is now charged

with child molestation). At least three states have considered and rejected such proposals.

In 2002, the Michigan Legislature considered, but did not ultimately adopt, a bill that would

have admitted evidence ofprior domestic violence to prove propensity in a prosecution ofdomestic

violence. S.B. 733, 2002 Leg. (Mich. 2002), available at http://www.bar.org/legislative.positions.

htm (the Michigan State Bar opposed this proposal). In 2001, the Oregon Legislature refused to

adopt a bill that would have emulated Cal. Evid. Code § 1109. See supra note 29 and

accompanying text. In 1999, the New York Legislature refused to adopt a provision of Governor
Pataki's proposed Sexual Assault Reform Act that would have freely admitted propensity evidence

in sexual assault cases. Brooks Holland, Section 60.41 ofthe New York Criminal Procedure Law:

The SexualAssault Reform Act of1999 Challenges Molineux andDue Process, 27 FORDHAM Urb.

L.J. 435,479(1999).

45. Cal Evid. Code § 1 109(a) provides that, "in a criminal action in which the defendant is

accused ofan offense involving domestic violence, evidence ofthe defendant's commission ofother

domestic violence is not made inadmissible by Section 1 101 [the general bar against propensity

evidence] if the evidence is not inadmissible pursuant to Section 352 [California's analog to FRE

403, giving the court general discretion to exclude prejudicial evidence]." Cal. Evid. Code §
1 109(e) provides that, "[e]vidence of acts occurring more than 1 years before the charged offense

is inadmissible under this section, unless the court determines that the admission of this evidence

is in the interest ofjustice." Cal. Evid. Code § 1 109(f) provides that, "[e]vidence of the findings

and determinations of administrative agencies regulating the conduct of health facilities licensed



702 INDIANA LAW REVIEW [Vol. 36:687

Simpson Law," because its sponsors were outraged by the exclusion ofprior acts
evidence in the murder trial of O.J. Simpson."*^ The explicit purpose of this bill
was to strengthen the government's hand in prosecuting defendants accused of
domestic violence.'*^ The Committee Report on Senate Bill 1876 argued that if
this bill did not become law, "we will continue to see cases where perpetrators
of this violence 'will beat their intimate partners, even kill them, and go on to
beat or kill the next intimate partner.""*^

Should Congress import California's rule into the Federal Rules of

Evidence? To some extent. Congress already has. FRE 413 provides that, in
prosecutions for sexual assault, the government may introduce evidence of prior
acts involving sexual assault, and may offer this evidence to show the
defendant's propensity for committing such offenses. FRE 414 sets forth a
similar rule for prosecutions of child molestation. Congress passed the

legislation establishing both ofthese rules in 1995, over the strong objection of

the Advisory Committee that typically plays a role in drafting revisions of the
Federal Rules of Evidence."*^ Some commentators have justified these rules on
a number of grounds: 1 ) the difficulty of prosecuting charges of sexual assault
and child molestation because victims are often unwilling or unable to testify; 2)
the unique tendency of sex offenders and child molesters to commit these
offenses over and over again; and 3) the need to hold past offenders

"accountable" for their crimes.^° On the other hand, many commentators have

under Section 1520 of the Health and Safety Code is inadmissible under this section."

46. For a discussion of the Simpson trial and how it affected the debate over the admission

of propensity evidence in prosecutions of violence against women, see Myrna S. Raeder, The

Admissibility ofPrior Acts ofDomestic Violence: Simpson and Beyond, 69 S. Cal. L. Rev. 1463

(1 996); see also B.J. Palermo, A Rush to Reform: Critics Fear Some Simpson-Inspired Changes

Are Misguided, 83 A.B.A.J. 20, 20 (1997).

47. Lisa Marie De Sanctis, a Deputy District Attorney in Ventura County, California, and a

co-author of Senate Bill 1876, stated her belief that "the propensity argument is a common-sense,

reasonable argument." Lisa Marie De Sanctis, Bridging the Gap Between the Rules ofEvidence

and Justice for Victims ofDomestic Violence, 8 YALE J.L. & FEMINISM 359, 388 (1996). She
offered the following practical justifications for the new law:

[T]here are several problems that arise in prosecuting domestic violence cases. The

hurdles that occur prior to trial include the uncooperative or recanting victim, few or no

witnesses, and a lack ofany documented physical evidence. The problems during a trial

include juror mind-block, gender bias, victim credibility, and the generally prejudicial

views about domestic violence held by the general population and therefore by most

jurors. Evidence of uncharged domestic violence can overcome many, if not most of

these prosecution problems.

Id at 397.

48. Andrew J. Glendon, Battling Domestic Violence Through the Admission of Character

Evidence, 28 Pac. L.J. 789, 791 n.l4 (1997) (quoting Assembly Committee on Public Safety,

Committee Analysis of S.B. 1876, at 4 (June 25, 1996)).

49. See supra note 7.

50. The following authors have, to varying degrees, supported the approach taken by



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 703

criticized PRE 4 1 3 and PRE 4 1 4 on the following grounds, among others: 1 ) the
prejudicial effect of propensity evidence in a criminal trial; 2) the theoretical

inconsistency ofthese rules with PRE 404(b); 3) the lack of empirical evidence
demonstrating a higher rate of recidivism among sex offenders and child
molesters than among other offenders; and 4) the disproportionate effect ofthese
rules on Native Americans.^' Whatever the merit of the approach embodied in

Congress in FRE 413 and FRE 414, although some of these authors have expressed reservations

about certain aspects of the rules. David P. Bryden & Roger C. Park, Other Crimes Evidence in
Sex Offender Cases, 78 MiNN. L. Rev. 529 (1994); Paul G. Cassell & Evan S. Strassberg, Evidence
ofRepeated Acts ofRape and Child Molestation: Reforming Utah Law to Permit the Propensity

Inference, 1998 UTAH L. REV. 145 (1998); David M. De La Paz, Sacrificing the Whole Truth:

Florida 's DeterioratingAdmissibility ofSimilar Fact Evidence in Cases ofChildSexual Abuse, 1

5

N.Y.L. SCH. J. Hum. Rts. 449 ( 1 999); Lisa Marie De Sanctis, Bridging the Gap Between the Rules

of Evidence and Justice for Victims ofDomestic Violence, 8 YALE J.L. & FEMINISM 359, 388
( 1 996); Karen M. Fingar, AndJusticefor All: The Admissibility ofUnchargedSexual Misconduct,

5 S. Cal. Rev. L. & Women's Stud. 501 (1996); Jill C. Legg, South Dakota Supreme Court: State
V. Ondricek.- Admission of Prior Bad Acts—The Exception or the Rule?, 42 S.D. L. Rev. 165
(1997); Margaret C. Livnah, Branding the Sexual Predator: Constitutional Ramifications of

Federal Rules ofEvidence 413 through 415, 44 Clev. St. L. Rev. 169 (1996); Aviva Orenstein,

No Bad Men!: A Feminist Analysis ofCharacter Evidence in Rape Trials, 49 HASTINGS L.J. 663

(1998^; William C. Robinson, Jr., Comment, Go West Florida! Adopt Recent Federal Exceptions

to Inadmissible Character Evidence andFollow the Modifications in Both California andArizona,

29 Stetson L. Rev. 1363 (2000); Debra Sherman Tedeschi, Comment, Federal Rule ofEvidence

413: Redistributing "the Credibility Quotient, " 57 U. PiTT. L. REV. 107 (1995); Jeffrey Waller,

Comment, Federal Rules ofEvidence 413-415: "Laws are Like Medicine; They Generally Cure

an Evil by a Lesser . . . Evil, " 30 TEX. TECH. L. REV. 1503 (1999); Mary Katherine Danna, Note,

The New Federal Rules ofEvidence 413-415: The Prejudice ofPolitics or Just Plain Common
Sense?, 41 ST. LoUTS L.J. 277(1996); Ellen H. Meilaender, Note, Revising Indiana's Rule of

Evidence 404(b) and the Lannan Decision in Light ofFederal Rules ofEvidence 413-415, 75 IND.

L.J. 1 1 03 (2000); Erik D. Ojala, Note, Propensity Evidence Under Rule 413: The Needfor Balance,

11 Wash. U. L. Q. 947 (1999); Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct

Evidence in Sex Offense Cases: New Federal Rules ofEvidence Codify the Lustful Disposition

Exception, 29 SUFFOLK U. L. Rev. 515 (1995).

51. The following authors have criticized FRE 413 and 414. Holland, .swpra note 44, at 435;
Edward J. Imwinkelried, Perspectives on Proposed Federal Rules of Evidence 413-415:

Undertaking the Task of Reforming the American Character Evidence Prohibition: The

Importance ofGetting the Experiment offon the Right Foot, 22 FORDHAM Urb. L.J. 285 (1 995);
R. Wade King, Federal Rules of Evidence 413 and 414: By Answering the Public's Call for
Increased Protection From Sexual Predators, Did Congress Move Too Far Toward Encouraging

Conviction Based on Character Rather Than Guilt?, 33 TEX. TECH. L. REV. 1 167 (2002); David

P. Leonard, Character and Motive in Evidence Law, 34 LOY. L.A. L. REV. 439 (2001); David P.

Leonard, In Defense ofthe Character Evidence Prohibition: Foundations ofthe Rule Against Trial

by Character, 73 iND. L.J. 1 1 6 1 ( 1 998); David P. Leonard, Perspectives on ProposedFederal Rules

ofEvidence 413-415: The Federal Rules ofEvidence and the Political Process, 22 FORDHAM URB.
L.J. 305 (1995); James S. Liebman, Proposed Evidence Rules 413 to 415—Some Problems and



704 INDIANA LAW REVIEW [Vol. 36:687

FRE 4 1 3 and 414, some in Congress have already proposed that the approach be
extended to all categories of violence against women, along the lines of
California's model.^^

Congress should reject this proposal for several reasons. First, there is no

practical necessity for Congress to adopt a federal version ofCalifornia's section

1 109. The existing Federal Rules of Evidence do not significantly impede the
admission of propensity evidence in federal prosecutions of violence against

women. Approximately one-halfof such cases involve charges ofsexual assault
on Indian reservations,^^ and propensity evidence is already freely admissible in

these cases pursuant to FRE 4 1 3 and 414. Among the other halfof federal cases
involving violence against women, a significant number are prosecutions brought
under the VAWA. Many ofthe VAWA offenses require proofof specific intent
(e.g., crossing state lines with the intent to commit domestic violence,^'* violate
a restraining order,^^ or stalk the victim^^); in prosecutions ofthese charges, the

existing version ofFRE 404(b) would allow evidence ofprior domestic violence
to prove intent, or common plan or scheme.^^

Recommendations, 20 U. DaYTON L. Rev. 753 ( 1 995); Kenneth J. Melilli, The Character Evidence
Rule Revisited, 1 998 BYU L. REV. 1547(1998); Joelle Anne Moreno, "Whoever Fights Monsters
Should See to it That in the Process He Does Not Become a Monster": Hunting the Sexual

Predator with Silver Bullets—Federal Rules of Evidence 413-415 and a Stake Through the
Heart—Kansas v. Hendricks. 49 Fla. L. Rev. 505 (1997); Joseph A. Aluise, Note, Evidence of

Prior Sexual Misconduct in Sexual Assault and ChildMolestation Proceedings: DidCongress Err

in Passing Federal Rules ofEvidence 413, 414, and 415?, 14 J. L. & POL. 153 (1998); Adam
Kargman, Note, Three Maelstroms and One Tweak: Federal Rules ofEvidence 413 to 415 and

TheirArizona Counterpart, 4 1 ARIZ. L. REV. 963 ( 1 999); Heather E. Marsden, Note and Comment,

State V. Hopkins; The Stripping ofRhode IslandRule ofEvidence 404(b) Protectionsfrom Accused

Sexual Offenders, 3 ROGER WILLIAMS L. REV. 333 (1998); Jason L. McCandless, Note, Prior Bad

Acts and Two BadRules: The Fundamental Unfairness ofFederal Rules ofEvidence 413 and 41 4,
5 Wm. &Mary Bill of Rts. J. 689 ( 1 997); Daniel L. Overbey, Note, Federal Rule ofEvidence 415
and Paula Corbin Jones v. William Jefferson Clinton; The Use ofPropensity Evidence in Sexual

Harassment Suits, 12 NotreDame J. L. ETHICS& PUB. POL'Y 343 (1998); Jeffrey G. Pickett, Note

and Comment, The Presumption ofInnocence Imperiled: The New Federal Rules ofEvidence 413-

15 and the Use ofOther Sexual-Offense Evidence in Washington, 70 WASH. L. REV. 883 (1995).

52. See supra note 8.

53. See supra noiQsA'5.

54. 18U.S.C. §2261 (1994).

55. Id § 2262.

56. /^.§ 2261 A.

57. FRE 404(b) allows the introduction of evidence concerning prior crimes, wrongs or acts

when the evidence is introduced for some purpose other than supporting a propensity inference.

This evidence may be used to show "motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident." Fed. R. Evid. 404(b). FRE 404(b) probably would

not allow evidence of prior domestic violence in a prosecution under the gun ban for convicted

domestic abusers (18 U.S.C. §§ 922(g)(8) and 922(g)(9) (1994)), which is generally considered to

be part of the Violence Against Women Act. However, evidence ofprior domestic violence might



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 705

A recent search in the Westlaw database discovered no VAWA case in which
404(b) evidence offered by the prosecution has been excluded. In fact, federal

courts have admitted this evidence with virtually no reservations. In prosecutions

for interstate travel to violate a restraining order, courts have admitted evidence

of prior violations to show intent under PRE 404(b). ^^ In prosecutions for
interstate travel to commit domestic violence, courts have admitted evidence of

prior abuse to show the defendant's state of mind pursuant to PRE 404(b).^^
Prior acts of domestic violence have also been admitted under PRE 404(b) in
prosecutions for interstate travel to commit stalking.^^ A total of five circuit
courts have upheld convictions in VAWA cases where the prosecution
introduced 404(b) evidence concerning prior domestic abuse.^^ As one court of
appeals noted, all three of the VAWA offenses involving interstate travel "put
[the defendant's] intent directly at issue," so the admission of 404(b) evidence

proving prior acts of domestic violence is "clearly correct.""

By contrast, state prosecutions of violence against women often involve
general intent crimes such as battery, for which the traditional version of Rule

be admissible under a separate evidentiary theory in these gun prosecutions: the evidence could

be used to prove the predicate offense or restraining order that is the basis for the firearms

disability, subject to the limitations set forth in United States v. Old Chief, 519 U.S. 172 (1997)

(plurality opinion) (requiring the prosecution to accept defendant's offer to stipulate on predicate

offense). In any event, even if section 1 109 of the California Evidence Code were imported into

the FRE, the prosecutions under the gun ban would not count as prosecutions ofdomestic violence,

so federal prosecutors could not avail themselves of the more lenient rules for admission of

propensity evidence. Thus, when one considers the universe of federal prosecutions of violence

against women (sexual assaults on Indian reservations, the VAWA offenses involving interstate
travel, and the VAWA offenses involving unlawful possession of firearms), there would be very
little difference in the admissibility of propensity evidence if the California rule were adopted in

federal court.

58. United States v. Hermundson, No. 97-10497, slip op. (9th Cir. Jan. 14, 2000) (affirming

admission of prior violations of restraining order admissible to show that defendant crossed state

lines with intent to violate restraining order again); United States v. Ruggles, No. 98-5477 (6th Cir.

Mar. 24, 2000) (affirming admission of "other acts" evidence); United States v. Von Foelkel, 136

F.3d 339, 341 (2d Cir. 1998) (upholding admission of defendant's prior bad acts).

59. United States v. Jacobs, 244 F.3d 503, 507 (6th Cir. 2001 ) (admitting evidence of other

domestic violence to show common scheme or plan); Ruggles, No. 98-5477 (prior acts ofdomestic

violence admissible to show intent, which is element of offense of interstate travel to commit

domestic violence); see also United States v. Lankford, 196 F.3d 563, 568 (5th Cir. 1999) (noting,

but not reviewing, trial court's admission of extensive evidence concerning prior domestic

violence).

60. United States v. Young, 248 F.3d 260, 271-72 (4th Cir. 2001) (evidence that defendant

had assaulted victim's mother was admissible under FRE 404(b) to show defendant's state of
mind); Ruggles, No. 98-5477.

6 1

.

See supra notes 58-59.

62. Ruggles, No. 98-5477.



706 INDIANA LAW REVIEW [Vol. 36:687

404(b) would be less useful.^^ Moreover, state law enforcement agents do not
have the tremendous investigative resources that are available to federal law

enforcement agents. The limited resources and time available in state
investigations creates a greater need for evidence of prior domestic violence. In

sum, the practicaljustifications for admitting propensity evidence in prosecutions

of violence against women are not as strong in federal court as they are in state
court.

Even if a federal version of California's section 1 109 might help to secure
more convictions, these convictions would come at too great a price. The
abrogation ofPRE 404(b) in VAWA cases would cause significant prejudice to
criminal defendants. In fact, the social opprobrium that has led publicity-seeking

politicians to pass special laws for domestic violence cases is the very reason

why the government's introduction of prior abuse to show propensity could so
inflame the jury that the defendant might never receive a fair trial.^"^ In another

context, Chief Justice Earl Warren of the U.S. Supreme Court explained the
potentially devastating effect of propensity evidence:

Evidence ofprior convictions has been forbidden because itjeopardizes

the presumption of innocence of the crime currently charged. A jury
might punish an accused for being guilty of a previous offense, or feel

that incarceration is justified because the accused is a "bad man,"

without regard to his guilt of the crime currently charged. . . .

Recognition to the prejudicial effect of prior-convictions evidence has

traditionally been related to the requirement ofour criminal law that the

State prove beyond a reasonable doubt the commission of a specific

criminal act. . . . Because of the possibility that the generality of the

jury's verdict might mask a finding of guilt based on an accused's past
crimes or unsavory reputation, state and federal courts have consistently

refused to admit evidence of past crimes except in circumstances where

63. Some state courts have reasoned that because battery is a general intent crime, evidence

of prior bad acts should not be admissible under the state's version ofFRE 404(b) in a prosecution
for battery. State v. Kennedy, 803 So.2d 916, 923 (La. 2001) (in a prosecution of a general intent

crime, "evidence of extraneous crimes is inadmissible for the ostensible purpose of showing such

intent"); People v. Sabin, 614 N.W.2d 888, 902 (Mich. 2000) ("the evidence [of prior sexual

misconduct] was not relevant to prove defendant's general intent"); Curtis v. State, 89 S.W.3d 163,

1 75 (Tex. App. 2002) (where intent was obvious from nature of assault, "the offer of other crimes

is unjustified due to lack of relevancy"). The issue of intent is not as important in these

prosecutions as it is in federal VAWA prosecutions, so FRE 404(b)'s exception for evidence
offered to show intent is less helpful to state prosecutors. This difference may explain why state

prosecutors have advocated more strenuously than federal prosecutors for changes in the rules

barring propensity evidence in prosecutions of domestic violence.

64. Many authors have noted the prejudicial effect of prior crimes evidence admitted under

FRE 4 1 3 and FRE 414. E.g., Pickett, supra note 5 1 , at 899-902. See supra note 5 1 for a long list

of other articles making the same argument.



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 707

it tends to prove something other than general criminal disposition.^^

Although this danger arguably does not rise to the level of a Due Process
violation,^^ it is at least a serious policy concern that should dissuade Congress

from adopting California's rule.

The admission ofevidence concerning prior acts ofdomestic violence could
cause additional problems in federal trials. Proving these acts (especially

uncharged acts) could require a great deal oftime and might necessitate a "mini-

trial" in the midst ofthe prosecution in which the evidence is offered. Although

the prior act need not be proven beyond a reasonable doubt, the prosecution must

offer sufficient prooffrom which a rational jury could conclude that the prior act

occurred.^^ The reluctance of victims to cooperate^^ might necessitate the

introduction of testimony by police officers, crime scene investigators,

criminalists who processed scientific evidence, neighbors who heard the victim 's
statements, etc. Although courts might be solicitous of such wide-ranging

evidence when offered as direct proof of the presently charged offense, a long

65. Spencer v. Texas, 385 U.S. 554, 575 (1967) (Warren, C.J., concurring in part and

dissenting in part) (citations omitted); accord United States v. Old Chief, 519 U.S. 172, 180, 182,

185 (1997) (holding that introduction of prior assault conviction caused impermissible prejudice

when defendant was presently charged with assault, among other offenses).

66. The following cases upheld Section 1109 of the California Evidence Code against

constitutional challenges: People v. Johnson, 478 P.2d 26, 32 (Cal. Ct. App. 2000); People v.

Hoover, 92 Cal. Rptr. 2d 208, 210-11 (Ct. App. 2000). Federal courts have also upheld the

constitutionality ofFRE 413 and PRE 414. E.g., United States v. LeMay, 260 F.3d 1018, 1026-27

(9th Cir. 2001) (Fed. R. Evid. 414); United States v. McHorse, 179 F.3d 889, 896-98 (10th Cir.

1999) (Fed. R. Evid. 414); United States v. Mound, 149 F.3d 799, 800-01 (8th Cir. 1998) (FED.

R. EviD. 413); United States v. Castillo, 140 F.3d 874, 880 (10th Cir. 1998) (Fed. R. Evid. 414)

(does not on its face violate the Due Process Clause of the Federal Constitution); United States v.

Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (FED. R. EviD. 413).

67. Huddleston v. United States, 485 U.S. 681, 685 (1988). A prosecutor will strive for a
higher quantum of proof if the evidence is to have any persuasive value.

68. It is well documented that victims of domestic violence sometimes recant or refuse to

cooperate after filing complaints against their assailants. People v. Gomez, 85 Cal. Rptr. 2d. 101,

1 05 (Ct. App. 1 999) (psychologist testified that "about 80 percent of the time a woman who has

been sexually assaulted by a boyfriend, husband or lover will recant, change or minimize the

story"); Angela Corsilles, No-Drop Policies in the Prosecution of Domestic Violence Cases:

Guarantee to Action or Dangerous Solution? , 63 FORDHAM L. REV. 853, 854-55 (1994) ("In many

jurisdictions, prosecutors routinely drop domestic violence cases because the victim requests it,

refuses to testify, recants, or fails to appear in court"); see also Cheryl Hanna, No Right to Choose:

Mandated Victim Participation in Domestic Violence Prosecutions, 109HARV.L.REV. 1849, 1883-

84 ( 1 996) (describing the complexity ofvictim's role in abusive relationship). Victims ofdomestic

violence may refuse to cooperate for a number of reasons, including financial concerns, fear of

retaliation, low self-esteem, and sympathy for the assailant. Thomas I. Kirsch II, Problems in

Domestic Violence: Should Victims be Forcedto Participate in the Prosecution ofTheirAbusers?

,

1 Wm. & Mary J. Women & L. 383, 392-99 (2001 ).



708 INDIANA LAW REVIEW [Vol. 36:687

diversion to prove a prior act may be a game that is not worth the candle.
A final reason to eschew California's section 11 09 in federal court is the

need to preserve theoretical cohesion within the Federal Rules of Evidence.

Inconsistency in the rules makes them less predictable, creates the appearance of
unequal treatment, and erodes the legitimacy of the entire justice system. It

would be difficult to present a principled argument that prior crimes ofdomestic
violence should be admissible to show propensity in VAWA prosecutions, but
that prior hate crimes should not be admissible to show propensity in
prosecutions of hate crimes or that prior acts of terrorism should not be
admissible to show propensity in prosecutions for terrorism, etc.

In the end, California's section 1 109 seems an ill fit for the federal courts.
Its justification is greater, and its harms less difficult to reconcile, in state
prosecutions of general intent crimes, as opposed to federal prosecutions of
specific intent crimes in VAWA.

III. Hearsay Statements by Victims of Domestic Violence

Some states have created special hearsay exceptions for statements by
victims of domestic violence. Most of these exceptions are solely available for
child victims,^^ but a few states have created exceptions for adult victims. ^^ The

69. E.g., Alaska Stat. § 12.40. 110 (Michie 2002); Ark. R. Evid. 803(25) (West 2002);

Ariz. Stat. § 13-1416 (West2002);CAL.EviD. Code §1228; Colo. Rev. Stat. Ann. §13.25-129

(West 2002); DEL CODE. tit. 1 1, § 3513 (2002); FLA. Stat. Ann. § 90.803(23) (West 2002); Ga.

Code Ann. § 24-3-16 (2002); Idaho Code § 19-3024 (Michie 2002); III. Comp. Stat. Ann. 725

§ 5/115-10 (West 2002); MiCH. R. EviD. 803(A); MiNN. Stat. Ann. § 595.02(3) (2002); Miss. R.

Evid. 803(25); Or. Evid. Code 803(18) & 803(24); Pa. Stat. Ann. tit. 42 § 5986; Tex. Code
Crim. Proc. Ann. § 38.072 (Vernon 2002); Utah Code Ann. § 76-5-41 1 (2002); Wash. Rev.

Code Ann. § 9A.44.120 (West 2002). As Judge Gersten has explained, "[t]ypical statutes

permitting statements regarding child abuse require the court to conduct an in-camera hearing,

determine the statement reliable, establish corroboration, and require the child (usually around 10

years old) to testify, if the child is not unavailable." Gersten, supra note 10, at 66 n.24.

70. Cal. Evid. Code § 1370(a)(c) (allowing the admission ofhearsay statements by victims

of domestic violence who are now unavailable to testify); OR. Evid. Code 803(26) (admitting

hearsay statements made by victim of domestic violence within twenty-four hours of incident,

whether or not victim is presently available as a witness). The Supreme Court of Kansas has ruled

that in marital homicide cases, prior threats against the victim are admissible as non-hearsay, if

offered to prove identity, motive, or intent. Christine Arguello, The Marital Discord Exception to

Hearsay: Fact or Judicially Legislated Fiction?, 46 U. Kan. L. Rev. 63, 64, 76-77 (1997) (arguing

that the Supreme Court of Kansas has in effect legislated a new hearsay exception for domestic

violence cases). The General Assembly of Illinois is now considering a bill, S.B. 2120, which was

proposed in the Spring 2002 session, that would allow for the admission ofout-of-court statements

by a victim of domestic violence whose failure to testify is due to intimidation by the defendant.

More information about this bill is available on the website ofthe bill's chiefsponsor, Senator Lisa

Madigan, http://www.lisamadigan.org/issues/domestic_violence.htm (June 2002) and

http://www.lisamadigan.org/press_pages/domestic_violence.htm (Feb. 12, 2002). The Michigan



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 709

purpose ofthese exceptions is to provide an avenue for the admission ofvictims'

statements that would not be admissible under the traditional hearsay exceptions

for victims of violent crime/' such as the exception for excited utterances,^^ the

exception for statements in aid ofmedical treatment or diagnosis,^^ the "catch-all

exception,"^"* and the exception for prior inconsistent statements by the witness.
^^

Proponents of a special hearsay exception for domestic violence cases cite the

tendency of the victim to recant or change her testimony in favor of her

assailant,^^ leaving the prosecution with little evidence ofthe abuse other than the

Legislature considered a similar bill in its 2001-2002 session, HB 4765, that would admit a
statement by a victim of domestic violence at or near the time of the incident, if the statement was

made in writing, was electronically recorded, or was made to a law enforcement official. More

information about this bill is available at the website of the Michigan State Bar,

http://www.michbar.org/legislative.positions.html (Nov. 6, 2001).

71. The following commentators have argued that the traditional hearsay exceptions are

inadequate for prosecutions of domestic violence: Beloof & Shapiro, supra note 9, at 6-10
(arguing that traditional exceptions are not broad enough); Hudders, supra note 9, at 1052-59

(arguing that expansion oftraditional hearsay exceptions in domestic violence cases is objectionable

because of implications for other cases and concluding that a new hearsay exception would be

appropriate). On the other hand, the following authors have noted that the traditional hearsay

exceptions have been stretched in certainjurisdictions to allow the liberal admission ofout-of-court

statements in prosecutions ofdomestic violence. Gersten, supra note 10, at 65-66 (noting "creative

application of hearsay exceptions" in domestic violence cases across the nation); Brooks Holland,

Using Excited Utterances to Prosecute Domestic Violence in New York: The Door Opens Wide,

or Just a Crack?, 8 Cardozo WOMEN'S L.J. 171, 172-73 (2002) (arguing that excited utterance

exception can be used expansively in cases involving domestic violence); Siegel, supra note 10, at

1243, 1275-76 (same).

72. FED. R. EviD. 803(2).

73. Fed. R. EviD. 803(4).

74. Fed. R. Evid. 807.

75. Fed. R. Evid. 801(d)(1)(A). Strictly speaking, this rule does not set forth a hearsay

exception, but an exclusion from the definition of hearsay.

76. See supra note 68. Beloof & Shapiro, supra note 9, at 3, cited this problem as the
principal justification for a new hearsay exception in domestic violence cases.

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, counselors, police detectives, directors of battered women's

shelters, and victim advocates, consistently testify that, in their experience, it is

commonplace for domestic violence victims to recant or minimize initial reports of

abuse. The head ofthe Family Violence Division ofthe Los Angeles District Attorney's

Office estimates that ninety percent ofdomestic violence victims recant. A psychologist
specializing in the treatment of battered women has estimated the non-cooperation rate

to be eighty percent. Similarly, one judge reports that in as many as eighty percent of

domestic violence prosecutions the victim refuses to cooperate at trial. Increasingly,

courts have taken judicial notice of the unreliability of the domestic violence victim's

recantations. Thus, recantation is the norm rather than the exception in domestic



710 INDIANA LAW REVIEW [Vol. 36:687

victim's hearsay statement shortly after the incident/^

Among the new state hearsay exceptions for adult victims of domestic
violence, Oregon's Rule 803(26) is the most expansive^^ This rule allows the

admission of out-of-court statements made by the victim within 24 hours of the
incident. It is not necessary for the prosecution to show that the victim was
"excited" at the time ofthe statements. Instead, Oregon's Rule 803(26) imposes

two requirements. First, the statement must have been made under specified
circumstances: the victim must have given an oral statement to a police officer

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.

Id. (citations omitted).

77. See id. at 1 ("[T]he [traditional] hearsay rule promotes the failure ofthe criminal case by

excluding the initial report of abuse. As the hearsay rule excludes out ofcourt statements of abuse,

recantation or no-show by the victim results in no charge, dismissal, or acquittal."). See also

Hudders, supra note 9, at 1060-61.

Although the victim, immediately after the incident, may make statements to police

investigators or others about what has happened, she is often unavailable, or unwilling,

to testify at trial. Thus, her story is often left untold. In many situations, the

prosecution of domestic violence cases can only be effective if the hearsay statements

ofthe victim are admissible at trial. A new hearsay exception, covering these situations
would allow the full story to be told.

Id. (citations omitted).

78. Or. Evid. Code 803(26) (West 2002) provides in pertinent part

The following statements are not excluded by [OR. EviD. Code 803], even though the

declarant is available as a witness:

26(a) A statement that purports to narrate, describe, report or explain an incident of
domestic violence, as defined in ORS 135.230, made by a victim of the domestic
violence within 24 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 in ORS 161.015, corrections officer, youth correction 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

statements that are subject to admission only pursuant to this subsection.

(C) The timing of the statement.

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

(E) Subsequent statements 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.



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 7 1

1

or similar authority, or the victim must have recorded the statement in writing or

electronically/^ Second, the statement must have sufficient indicia ofreliability,

based on considerations such as the declarant's personal knowledge, the

availability ofcorroborating evidence, the timing ofthe statement, the manner of

questioning that elicited the statement, and the inconsistency of other statements

by the same victim (although recantation is not dispositive).

During the hearings on Oregon House Bill 3395 (which was ultimately

codified as Oregon's Rule 803(26)), Joel Shapiro, the principal author ofthe bill,

offered this explanation of its purpose:

[T]he bill recognizes that recantation by victims ofdomestic violence is

commonplace. This phenomenon is typically motivated by reasons
unrelated to the veracity ofthe initial report [of abuse]. By admitting at
trial the statements of domestic violence victims covered by HB 3395,
Oregon will be better able to protect the women and children ofthis state
by successfully prosecuting domestic assailants.^^

House Bill 3395 also drew criticism from some legislators and criminal justice
experts on the following grounds, among others: 1 ) there was no showing that
the existing residuary hearsay exception was inadequate in Oregon;^' 2) the new
hearsay exception might lead to the admission of false statements that the

declarant could not recant;^^ 3) the new law would limit the confrontation rights

79. If the victim recorded the statement in writing or electronically, it is not necessary that

she actually presented the statement to a police officer or similar authority. Or. Evid. Code §
803(26)(a)(A) (West 2002); Laird C. Kirkpatrick, Oregon Evidence § 803.28[3] (2002)

(questioning the wisdom of imputing the same reliability to a victim's written statements as to the

victim's statements to law enforcement officers) ("An official report to police (which could subject

the complainant to liability if fabricated) would be far more reliable than a personally recorded note

(made within 24 hours but perhaps not brought to the attention of the police until much later.").

The language in OR. EviD. Code 803(26)(a)(A) appears to derive from Cal. EviD. Code § 1370

(2002) (California's hearsay exception for physical abuse cases), which provides in subsection

(a)(5) that the statement is inadmissible unless it "was made in writing, was electronically recorded,

or made to a physician, nurse, paramedic, or to a law enforcement official." The Michigan

Legislature has considered, but not yet adopted, a proposal with a requirement similar to Or. Evid.

Code 803(26)(a)(A). That bill, HB 4765, would admit a hearsay statement by a domestic violence
victim if the statement "was made in writing, was electronically recorded, or was made to a law

enforcement official." More information about this bill is available at the website from the

Michigan State Bar, http://www.michbar.org/legislative.positions.htm (last visited Jan. 30, 2003)

(the Michigan State Bar supports in principle HB 4765).
80. Hearing on H.B. 3395 Before the House Judiciary Comm. on Criminal Law, 1999 Leg.,

70th Sess. (Or. 1 999) (written testimony of Joel Shapiro (exhibit U, law student, Northwestern

School of Law and Clark College)), quoted in Dworkin, supra note 10, at 304.

8 1 . Dworkin, supra note 1 0, at 304-05 (citing testimony of Ingrid Swenson, Oregon Criminal

Defense Lawyer's Association, at Apr. 23, 1999 hearing).

82. Id. (citing testimony ofKathie Osborne, Oregon Juvenile Rights Project, at Apr. 23, 1 999

hearing).



712 INDIANA LAW REVIEW [Vol. 36:687

of defendants;^^ and 4) the law would facilitate the "mandatory prosecution
policy" in domestic violence cases, which some commentators believe is
objectionable.^'*

Recent scholarship has suggested that Oregon's Rule 803(26)—or a similar
hearsay exception for domestic violence cases—^would be a salutary addition to
the Federal Rules ofEvidence.^^ Yet there are many reasons why this rule would
be inappropriate for the federal system. First, it is doubtful that federal law

enforcement agents could take advantage of Oregon's unique exception due to

the temporal restrictions in that rule. Virtually all federal prosecutions of

violence against women arise from investigations that are begun by local officers,
not federal officers. A federal law enforcement agency typically does not receive
a referral until the case is several days old. The local officers who investigate
domestic violence cases know that the vast majority of such cases will be
prosecuted in state court under traditional state hearsay rules, so these officers

generally follow state protocols in their investigations. Because 47 states have

not adopted a hearsay exception along the lines of Oregon's Rule 803(26), the

normal investigative protocol in these states often will not suit the particular

requirements ofthis rule, and it is unlikely that federal agents will have a chance

to take a qualifying statement within the first 24 hours after the incident.

A second reason why Oregon's Rule 803(26) would be less useful in federal
court than in state court is the distinctive nature of the statutes under which

violence against women is prosecuted in federal court. Prosecutors enforcing
these federal laws need not rely as heavily on the victim's hearsay statements as

do state prosecutors enforcing the traditional domestic violence laws.

Approximately half of the federal VAWA cases are brought under 18 U.S.C. §
922(g)(8) (which prohibits possession of a firearm by a person against whom a
restraining order is pending) and 18 U.S.C. § 922(g)(9) (which prohibits

possession of a firearm by a person who has been convicted of a misdemeanor

83 . Id. at 306 (citing comments of Senator Neal Bryant, Chair, Senate Judiciary Committee,

at June 16, 1999 hearing).

84. See Beloof & Shapiro, supra note 9, at 31-36 (summarizing debate over mandatory
prosecution policies). But cf. Hanna, supra note 68, at 1909 (defending mandatory prosecution

policies on the ground that they vindicate society's overall interest in curbing violence, even if

individual victims are reluctant to cooperate). Also cf. Linda G. Mills, Killing Her Softly: Intimate

Abuse and the Violence of State Intervention, 1 13 Harv. L. Rev. 550 (2000) (suggesting that

mandatory prosecution is harmful to victims and is an affront to their autonomy).

85 . Beloof& Shapiro, supra note 9, at 1 4 (suggesting that FRE 803 be amended to admit out-
of-court statements by a victim to police or other similar officials within twenty-four hours of

alleged domestic violence, following Or. Evid. Code § 803(26)); see also Hudders, supra note 9,

at 1 060 (arguing that after Congress has created special evidentiary rules for prosecution of sexual

assault and child molestation, a new hearsay exception for domestic violence cases would be

appropriate); see also Donna M. Matthews, Making the Crucial Connection: A Proposed Threat

Hearsay Exception, 27 GOLDEN GATE U. L. Rev. 117, 160-64 (1997) (urging that FRE 804 be

amended to admit out-of-court statement by deceased victim of domestic violence).



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 7 1

3

crime involving domestic violence).^^ The act at issue in these cases is the

defendant's possession of a firearm, which usually can be established without

relying on the hearsay statement of an abused partner.*^ In addition, a

substantial number of federal cases involving violence against women are rape
cases arising in Indian Country.^^ Given modern technology, rape cases are not

so dependent on a victim's hearsay statements: the presence of the defendant's

bodily fluid or other biological evidence on the victim's person, coupled with

bruises or other evidence that the victim withheld consent, would be a strong

basis on which to prosecute a rape case even without the admission of the

victim's hearsay statements. By contrast, a typical prosecution of domestic
violence in state court depends more heavily on hearsay statements, either

because the offender's identity is not readily apparent from the physical

evidence, or because the offender may try to ascribe the defendant's injuries to
a fall or some other "innocent" case.^^ Even in federal cases where hearsay
statements would bejust as important as in state cases, federal investigators have

far greater investigative resources and are better able to find alternative evidence

if hearsay cannot be admitted.

Third, it appears that hearsay is already admitted liberally in federal

prosecutions of violence against women. The exception for excited utterances
is used extensively in federal cases,^^ as is the exception for statements in aid of

86. See supra note 4 (showing that in the last few years, approximately half of the VAWA
cases filed by federal prosecutors have involved firearms charges under 1 8 U.S.C. §§ 922(g)(8) and

922(g)(9)).

87. See., e.g.. United States v. Smith, 964 F. Supp. 286 (N.D. la. 1 997) (prosecuting the first

case in the country under 18 U.S.C. § 922(g)(9) without heavy reliance on assistance from the

defendsmt's reluctant girlfriend). I will describe this case in more detail in the introduction of an

article entitled A Better Way to Disarm Batters, forthcoming in March 2003 issue of the Hastings

Law Journal.

88. See supra note 5 and accompanying text.

89. Even the small number ofprosecutions brought under VAWA statutes that are somewhat
analogous to state domestic violence statutes (e.g., 18 U.S.C. § 2262 (1994), which prohibits

crossing state lines to violate a restraining order) will not rise and fall based on the admissibility

of the victims' hearsay statements. The defendant's act of crossing state lines, and his motive for

doing so, is likely to be a more significant piece of the puzzle than is the victim's out-of-court

statements.

90. Fed. R. Evid. 803(2). In cases involving domestic violence, federal courts have permitted

a fairly long interim period between the violent act and the declarant's statement. United States v.

Hefferon, 3 14 F.3d 21 l(5th Cir. 2002) (two-hour delay permissible in sexual assauh case involving

minor victim); United States v. King, No. 99-2363, slip op., at 4-5 (10th Cir. July 26, 2000)

(seven-hour delay permissible in rape case involving minor victim); United States v. Cruz, 1 56 F.3d

22, 30 ( 1 St Cir. 1 998) (statement by battered woman four hours after beating was excited utterance);
Morgan v. Foretich, 846 F.2d 94 1 , 947 (4th Cir. 1 998) (statement by minor victim admissible even

though it was made three hours after departure from abusive father's home); United States v. Farley,

992 F.2d 1 122, 11 23 (10th Cir. 1993) (excited utterance exception applied to statement by minor

one day after alleged molestation); see also United States v. Tocco, 135 F.3d 1 16, 127-28 (2d Cir.



714 INDIANA LAW REVIEW [Vol. 36:687

medical treatment,^^ the exception for prior inconsistent statements,^^ and the
residual hearsay exception.^^ The fact that the U.S. Department ofJustice has not
sought a new hearsay exception is telling: existing hearsay exceptions are
sufficient to keep the acquittal rate at approximately 1-2% in VAWA cases.^'*

There is a fourth reason why Oregon's Rule 803(26) should not be adopted
in the federal courts. This rule would be theoretically inconsistent with the other
rules in the Federal Rules of Evidence. Indeed, it appears that Oregon's Rule

803(26) is grounded in expediency rather than sound evidentiary theory.

Proponents ofthe rule emphasized the practical necessity for the new exception,
rather than the reliability of the evidence it would admit.^^ There was little
attempt to show the inherent trustworthiness of this subcategory of evidence.

1998) (three-hour delay did not thwart application of excited utterance exception to statement by

adult declarant); Webb v. Lane, 922 F.2d 390, 395 (7th Cir. 1991) (victim of shooting gave

statement two hours after incident).

91. Fed. R. Evid. 803(4). In sexual abuse cases, many federal courts have held that

statements to physicians by child victims identifying their abusers are "reasonably pertinent to

diagnosis or treatment" because the physicians cannot adequately treat these patients without

knowing the extent of their emotional and psychological injuries, and without knowing whether

these victims can safely be returned to their homes. United States v. Yellow, 18 F.3d 1438, 1442

(8th Cir. 1994); see also United States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993); United States

V. Belfany, 965 F.2d 575, 579 (8th Cir. 1992); United States v. George, 960 F.3d 97, 99-100 (9th

Cir. 1992); Morgan, 846 F.3d at 949. Some courts have extended this reasoning to statements by

adult victims of domestic violence. As the Tenth Circuit reasoned in Joe, "the domestic sexual

abuser's identity is admissible under Rule 803(4) where the abuser has such an intimate relationship

with the victim that the abuser's identity becomes 'reasonably pertinent' to the victim's proper

treatment." Joe, 8 F.3d at 1495 (admitting statement of adult victim).

92. Fed. R. Evid. 801(d)(1)(A). As noted previously, this rule is not an "exception" to the

hearsay rule, but rather an exclusion of certain evidence from the definition of hearsay. This rule

is invoked occasionally in federal prosecutions ofviolence against women. For example, in United

States V. Young, 3 1 6 F.3d 649, 659 (7th Cir. 2002), the defendant was charged with interstate travel

to commit domestic violence, and the victim testified about the crime before the grand jury. By the

time of trial, she had recanted her testimony and was a "turncoat witness." Id. The district court

allowed the prosecution to impeach the witness with her testimony before the grand jury pursuant

to FRE 801(d)(1)(A), and the Seventh Circuit upheld this ruling. Id. at 660.
93. FED. R. EviD. 807. E.g., United States v. Harrison, 296 F.3d 994, 1004 (10th Cir. 2002)

(admitting statements of child victim regarding abuse that occurred many years before under FRE

807); United States v. McKinney, No. 98-30250 slip op., at ^2-3 (9th Cir. July 1 4, 1 999) (admitting

under FRE 807 statements by adult victim of domestic violence that occurred four or five hours

before statements); see 2 JOHN E.B. MYERS, Evidence in Child Abuse and Neglect Cases §
7.49, at 319 (3d ed. 1997) ("courts regularly employ the residual exception in child abuse

litigation").

94. See Executive Office of U.S. Attorneys fax, supra note 40 (well over 100 VAWA cases
are filed per year, but only an average of two defendants per year are acquitted in these

prosecutions).

95. See supra note 80 and accompanying text.



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 7 1

5

The new exception seems most akin to the excited utterance rule, and is, in
effect, aper se rule ofexcitement, treating virtually all statements by a victim of

domestic violence as excited utterances if the statements are made within 24
hours of the incident.^^ Like the excited utterance rule, Oregon's Rule 803(26)

seems to rest on the theory that declarants are more likely to tell the truth when
they are excited, because they have less opportunity for the detached reflection

that is necessary for fabrication. Yet Oregon's Rule 803(26) permits not only the

admission of oral statements, but also statements that the declarant has recorded

electronically or in writing. This latter provision is perplexing in that the act of

recording a statement suggests the declarant's excitement has dissipated, and the

declarant is now calm enough to write down her thoughts, a circumstance that
erodes the primary theoretical basis for the new hearsay exception. The credence
that Oregon Rule 803(26) accords to a declarant's writings in a private setting

finds no precedent in the current Federal Rules of Evidence.^^ At bottom, the

justification for Oregon's Rule 803(26) lies not in its fealty to time-honored

principles in the rules ofevidence, but rather in the beliefthat domestic violence

cases are urgently important and the prosecution's burden should be eased in this

subset of cases. Some commentators seem willing to look past the theoretical
inconsistencies for the sake of expediency, ^^ but this approach has led to unduly

politicized rulemaking in the past,^^ and the long-term effect of such a strategy

could be to compromise the integrity of the rules.

Perhaps the most significant hurdle for the proponents of the new hearsay
exception is the Confrontation Clause of the Sixth Amendment. '^^ While the
Sixth Amendment poses virtually no impediment for "firmly rooted" hearsay

96. During the hearings on HB 3395, this bill was promoted as an "expansion" ofthe excited
utterance exception. Dworkin, supra note 10, at 307.

97. See, e.g.. Fed. R. Evid. 612 (prior writings by testifying witness can be used to refresh

memory but must then be withdrawn before testimony resumes); FED. R. Evid. 803(4) (prior

writings by witness can be used as evidence only when witness has exhausted memory on the stand,

and threshold requirements are met to establish reliability of writing; even then, writing can only

be read to jury, not submitted as an exhibit). Professor Kirkpatrick has suggested that the great

credence accorded to writings under Oregon's Rule 803(26) may be misplaced. See Mueller &
Kirkpatrick, supra note 12.

98. E.g., Hudders, supra note 9, at 1060 ("[E]ven though a proposed hearsay exception for

domestic violence is driven by policy and does not fit fully within the evidence rules' theoretical

framework, it would be a suitable candidate for legislative action.").

99. Examples ofhighly politicized rules of evidence include FRE 4 1 3 (admitting propensity

evidence in prosecutions of sexual assault), FRE 414 (admitting propensity evidence in

prosecutions of child molestation), and FRE 704(b) (the so-called "Hinkley Rule," prohibiting
experts from opinion as to whether a criminal defendant could form the mens rea necessary to

commit the charge offense). For a further discussion of the "politicization" of the FRE, see Capra,

supra note 7.

100. The Sixth Amendment to the U.S. Constitution provides, in pertinent part, as follows:

"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses

against him " U.S. Const, amend. VI.



716 INDIANA LAW REVIEW [Vol. 36:687

exceptions, '°' a new federal version of Oregon's Rule 803(26) would probably
not qualify as "firmly rooted."^^^ As a consequence, the admission of hearsay
under this exception would need to withstand scrutiny under the Supreme Court's

rulings interpreting the Confrontation Clause in criminal prosecutions. The
government would need to show that the hearsay declarant has been subject to
cross-examination by the defendant, '^^ or that the declarant is unavailable for

cross-examination. ^°'* In addition, the government would need to show that the
evidence admitted under the new hearsay exception is sufficiently reliable. '^^

The difficulty of satisfying these confrontation requirements would vary with
each case, but for the reasons discussed above,'^^ the reliability of evidence that

meets the requirements of Oregon's Rule 803(26) should not be taken for

granted, and a federal version of this rule might run afoul of the Confrontation

Clause on a number of occasions.
'°^

101

.

In a series of cases—most notably White v. Illinois, 502 U.S. 346 (1992), Bourjaily v.
United States, 483 U.S. 171 (1987), and UnitedStates v. Inadi, 475 U.S. 387 (I985)~the Supreme

Court has ruled that a firmly rooted hearsay exception ensures the reUability of evidence admitted

under the exception, and diminishes the need for cross-examination of the hearsay declarant.

102. In Idaho V. Wright, 497 U.S. 805 (1990), the Supreme Court considered whether Idaho's

residual hearsay exception was "firmly rooted." The Court held that a hearsay exception is not

firmly rooted if it lacks "the imprimatur of longstanding judicial and legislative experience."

Idaho's residual hearsay exception could not be considered firmly rooted because "hearsay

statements admitted under the residual exception, almost by definition, ... do not share the same

tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay

exception." Id. at 817.

103. In United States v. Owens, 484 U.S. 554 (1988), and California v. Green, 339 U.S. 149

( 1 970), the U.S. Supreme Court made clear that the federal confrontation requirements are satisfied

when the hearsay decl2U"ant is actually subject to cross-examination by the defendant.

1 04. The Confrontation Clause does not require that the hearsay declarant be subject to cross-

examination where the government shows the declarant is actually unavailable despite the

government's good faith efforts to secure the declarant's testimony. Ohio v. Roberts, 448 U.S. 56

1

(1980); Mancusi v. Stubbs, 408 U.S. 204 (1972); Barber v. Page, 390 U.S. 719 (1968).

105. The government must show that the evidence has "parti icularized guarantees of

trustworthiness," i.e., circumstances "that surround the making ofthe statement and that render the

declarant particularly worthy of belief" Idaho v. Wright, 497 U.S. 805 (1990).

1 06. See supra notes 96-97 and accompanying text.

107. For example, in State v. Moore, 334 Or. 328 (2002), the Oregon Supreme Court found

that Oregon's own confrontation clause required the exclusion ofa hearsay statement by a domestic

violence victim. Oregon has chosen not to follow the U.S. Supreme Court's confrontation cases

subsequent to Ohio v. Roberts, so Oregon still requires the government to prove that a hearsay

declarant is actually available for cross-examination or is unavailable for permissible reasons. 334

Or. at 335-40. Oregon imposes this requirement for all hearsay exceptions, whether or not they are

"firmly rooted." Id. In Moore, the Oregon Supreme Court considered whether the trial court had

properly admitted an excited utterance by a domestic violence victim who was not present during

the defendant's trial, and whose unavailability had not been demonstrated by the prosecution. The

Oregon Supreme Court held that admission of such a statement violated the defendant's



2003] PROSECUTIONS OF VIOLENCE AGAINST WOMEN 7 1

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Conclusion

This short essay has studied three innovative approaches taken by states to

facilitate the admission of certain evidence that is useful in the prosecution of

domestic violence. These approaches may make sense under the circumstances
presented in state court, but they should not be imported into the Federal Rules

of Evidence. In the federal system, such rules would cause theoretical

inconsistencies, would cause undue prejudice to defendants, would impose

burdens on victims ofdomestic violence, and would create double standards for

Native Americans. The practical need for these reforms is dubious, because
federal prosecutors are already achieving high conviction rates in cases involving

violence against women. Reform of the federal evidentiary rules to assist
prosecutions of domestic violence may be politically popular, but in reality, it's
a solution in search of a problem.

The conclusion of this article should not be construed as a criticism of the

attorneys who authored the three primary pieces oflegislation reviewed herein. '^*

One cannot help but admire these attorneys' commitment to eradicating domestic
violence, and their careful approach to crafting legislation that addresses the

unique needs of their states. The purpose ofthe present article is not to criticize

these pathbreaking approaches in state court, but rather to urge caution in

adopting such approaches in federal court.

confrontation rights, even though the statement was otherwise admissible under Oregon's hearsay

exception for excited utterances. Id. at 341 . Similar analysis would be likely in federal court ifthe

new hearsay exception were not deemed to be "firmly rooted,"

108. One common denominator of the three principal statutes examined in this article, Or.

EviD. Code § 609(2); Cal. Evid. Code § 11 09, and Or. Evid. Code § 803(26), is that they were

drafted in large part by recently admitted (or not-yet-admitted) lawyers. Gina Skinner authored

Oregon House Bill 3680 (later codified as Or. Evid. Code § 609(2)) within four years of her

admission to the Oregon State Bar, according to biographical data available at

www.martindale.com. Lisa Marie De Sanctis co-wrote Senate Bill 1876 (codified as Cal. Evid.

Code § 1 1 09) one year after graduating from law school. Lisa Marie De Sanctis, Bridging the Gap

Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 YALE J.L. &
Feminism 359, 359 n.dd (1996). Joel Shapiro wrote Oregon House Bill 3395 (later codified as Or.

Evid. Code 803(26)) while he was a third-year law student. See Peter R. Dworkin, Confronting
Your Abuser in Oregon: A New Domestic Violence Hearsay Exception, 37 WILLAMETTE L. REV.

299,304(2001).