Objection!: Utilizing Hearsay Exceptions in Domestic Violence Cases

It is estimated that 35 per cent of women worldwide have experienced either physical and/or sexual [violence] at some point in their lives. However, some national studies show that up to 70 per cent of women have experienced physical and/or sexual violence . . . . In the majority of countries with available data, less than 40 per cent of the women who experience violence seek help of any sort. Among women who do, most look to family and friends and very few look to formal institutions and mechanisms, such as police and health services.[1]

* * * * * 

Three years ago, the brutal gang rape of a 23-year old student in New Delhi outraged the world.[2] Today, her parents have started a non-profit working with other survivors of sexual violence across India.[3] One of the most critical things the organization does is provide emotional support for survivors to encourage them to follow through with a prosecution.[4] This reluctance to seek justice is not unique to India: "rape and sexual assault are the most underreported crimes in the world, and it’s very hard to say that the problem is declining".[5] Thus, even while many countries are strengthening their laws punishing sexual violence, this reluctance makes prosecution difficult. Prosecutors often need to craft special methods for handling sexual violence cases as the general criminal procedure was not designed with the complexities of sexual violence in mind. Countries just beginning to implementation these laws should look at how places like the United States have been working to apply general procedural laws to the very specific and unique set of circumstances surrounding sexual violence. However, though the United States does provide a good starting example, it too has room to improve.  

Introduction

In the United States, approximately twenty individuals per minute are physically victimized by an intimate partner.[6] Despite this high rate of physical abuse, a 1990s study reported that “victims of domestic violence are uncooperative in approximately eighty to ninety percent of cases.”[7] While this statistic is disheartening, it is, in part, due to the unique aspects of domestic violence[8] and the cycle of violence.[9] Although much needs to be accomplished to increase the rate of cooperation, prosecutors have found ways to work within the current evidentiary framework to prosecute batterers, particularly through the use of hearsay exceptions. However, due to challenges unique to domestic violence, the utility of these common exceptions are limited.

Admissible Hearsay: Strategies and Limitations

Rules 803 and 804 provide exceptions to the general prohibition of hearsay. These exceptions are justified because they inherently possess “circumstantial guarantees of trustworthiness sufficient to justify non production of the declarant in person at the trial even though he may be available.”[10] Common hearsay exceptions utilized by prosecutors in domestic violence cases include the exceptions for statements made for medical treatment and diagnosis, excited utterances, present sense impressions, and forfeiture by wrongdoing.

Statements Made for Medical Treatment and Diagnosis

Federal Rule of Evidence 803(4) provides “[a] statement that: (A) is made for - and is reasonably pertinent to - medical diagnosis and treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause” are not excluded as hearsay.[11] Statements made for medical treatment and diagnosis are not excluded by the rule against hearsay due to their implicit guarantee of reliability.[12]

This exception is relevant to domestic violence as victims may seek medical treatment as result of physical abuse by their batterer.[13] For example, the Indiana Court of Appeals recognized that “[s]tatements about ‘the nature of the assault or abuse,’ even if they identify the perpetrator, can satisfy the second prong of the reliability test if the statements ‘assist medical providers in recommending potential treatment for sexually transmitted disease, pregnancy testing, psychological counseling, and discharge instructions.”’[14]           

Despite this recognition, courts are split on whether statements of identity fall within the scope of Rule 803(4).[15] Courts denying statements of identity under the medical diagnosis exception often cite “self-interest” and “expert-reliance” rationales.[16] Because a doctor “will administer the same medical treatment for injuries regardless of whether the assailant was a stranger or . . . [not] . . . the patient has no motivation to truthfully identify the assailant.”[17] However, other courts stress that the emotional trauma many domestic violence encounter brings the identity of the batterer within the scope.[18] “In addition to physical injuries, a victim of domestic violence may have a whole host of other issues to confront, including psychological and trauma issues that are appropriately part of medical treatment.”[19] This inconsistent approach to Rule 803(4) limits its breadth and usefulness.

Excited Utterances

Out-of-court “statement[s] relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” are also admissible under Federal Rule of Evidence 803(2).[20] These statements are deemed reliable, and thus, admissible because “the witness has not had time to fabricate testimony.”[21] While most courts allow these statements in evidence, some courts narrow the circumstances for when it can be used. In Compan v. People, the Colorado Supreme Court held that the victim’s statements qualified as excited utterances because of the “near temporal proximity to the startling event,” the fact that the victim initiated the calls, and the victim’s “outward signs of emotional distress.”[22] Additionally, in holding that the statements were non testimonial the court stressed that they were made to her friend and not to a police officer.[23]

Although the excited utterance exception is a useful tool for prosecutors, it suffers from significant limitations in domestic violence cases. Although domestic violence is undoubtably a stressful event, or series of events, victims respond is various ways. This is partially due to the fact that domestic violence “rarely occurs in the vacuum of a single push, punch, or threat.”[24] Thus, victims may not present typical “excited” reactions to the assault; instead, they may exhibit symptoms closers to shock. Additionally, “some non-assaultive conduct may not prove so traumatic as to transform hearsay statements into reliable evidence.”[25] Thus, the “stress of excitement” requirement proves limiting in domestic violence cases.

Present Sense Impressions

Prosecutors can also utilize Rule 803(1), which allows hearsay “statement[s] describing or explaining an event or condition, made while or immediately after the declarant perceived it.”[26] This exception is justified because the “substantial contemporaneity of event and statement negative the likelihood of deliberate of conscious misrepresentation.”[27]

While the present sense impression seems like an extremely useful prosecutorial strategy, the unique aspects of domestic violence limit the exception’s applicability. Batterers often employ isolation tactics to gain further control.[28] Batterers can “accuse the victim’s friends and family of being ‘trouble makers’ . . . [and] may block the victim’s access to use of a vehicle, work, or telephone service in the home.”[29] However, this exception can be utilized more successfully after the Court’s clarification of nontestimonial statements in Davis v. Washington.[30] Because statements made “to enable police assistance to meet an ongoing emergency” are nontestimonial, statements made to 911 operators can be admitted as present sense impressions so long as the call is made “while or immediately after” the abuse.[31]

Forfeiture by Wrongdoing

Rule 804(6) allows hearsay evidence when the defendant “wrongfully caused - or acquiesced in wrongfully causing - the declarant’s unavailability as a witness, and did so intending that result.”[32] This exception is particularly relevant in domestic violence situations as “[c]oercion and intimidation are commonplace in domestic violence cases.”[33] In fact, the Court even recognized that “[a]cts of domestic violence are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.”[34]

Despite its relevance, as of 2015 only eighteen states had adopted the rule into their state evidence codes.[35] Furthermore, while the exception provides an avenue for hearsay it is procedurally balanced by the evidence needed to invoke the exception.[36] It requires that the defendant “commit[] a wrongful act for the purpose of procuring [the victim’s] absence as a witness.”[37] However, at least two justices argue that the intent needed to allow the exception can be inferred from “the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process.”[38] Thus, while the exception does not have significant tooth now, it could prove helpful if adopted by more states.

Conclusion

Domestic violence can cases present significant challenges for prosecutors. Although the hearsay exceptions found in the Federal Rules of Evidence provide some relief in cases with limited witnesses or uncooperative victims, the unique challenges and contexts in which domestic violence occur often limits the usefulness of these traditional exceptions. Thus, legal scholars should focus their attention to creating equitable remedies for domestic violence cases.

[1] Facts and Figures: Ending Violence against Women, UN Women, http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures (last visited Dec. 21, 2015). 

[2] Rhitu Chatterjee, The Pain of Their Daughter's Gang Rape and Murder Turned Them into Activists, PRI the World (Dec. 16, 2015), http://www.pri.org/stories/2015-12-16/pain-their-daughters-gang-rape-and-murder-turned-them-activists. 

[3] Id.

[4] Id.

[5] Emily Thomas, Rape Is Grossly Underreported In The U.S., Study Finds, Huffington Post (Nov. 21, 2013), http://www.huffingtonpost.com/2013/11/21/rape-study-report-america-us_n_4310765.html. 

[6] National Coalition Against Domestic Violence, http://www.ncadv.org/learn/statistics (last visited Dec. 12, 2015).

[7] 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, 367 (1996); People v. Brown, 94 P.3d 574, 576 (2004) (noting that approximately eighty to eighty-five percent of victims “actually recant at some point in the process”).

[8] See Sarah M. Buel, Fifty Obstacles to Leaving, a.k.a. Why Abuse Victims Stay, Colo. Lawyer, Oct. 1999, available at http://www.sdcedsv.org/media/sdcedsvfactor360com/uploads/Articles/50Obstacles.pdf; see also Farrah Champagne, Prosecuting Domestic Violence Cases, 16 Crim. Litig. 2, 3-4 (2015).

[9]  See Domestic Violence Roundtable, The Cycle of Domestic Violence,  http://www.domesticviolenceroundtable.org/domestic-violence-cycle.html (last visited Dec. 12, 2015).

[10] Fed. R. Evid. 803 advisory committee’s note.

[11] Fed. R. Evid. 803(4).

[12] White v. Illinois, 502 U.S. 346, 356 (1992) (noting that this type of statement “carries special guarantees of credibility” because “the declarant knows that a false statement may cause misdiagnosis or mistreatment.”

[13] See e.g., Steele v. State, No. 49A02–1408–CR–585, 2015 WL 4910125, at *1 (Ind. Ct. App. Aug. 18, 2015) (the victim went to an emergency room to seek treatment for the “pain, swelling, and bruising around her eye” after her boyfriend punched her. The victim also identified her batterer to the nurse).

[14] Id. at *2.

[15] See Moore v. City of Leeds, 1 So. 3d 145, 150 (Ala. Crim. App. 2008) (explaining that the medical diagnosis and treatment exception allows admissions of identity); People v. Backlund, No. 240641, 2003 WL 21246619, at *2 (Mich. Ct. App. May 29, 2003) (holding that “a defendant’s identity is relevant to medical treatment”); but see  United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980) (reasoning that statements of identity would “seldom, if ever” fall within Fed. R. Evid. 803(4)); United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985) (explaining that   statements of identity generally fall outside the scope of Fed. R. Evid. 804(3)).

[16] Erin R. Collins, The Evidentiary Rules of Engagement in the War Against Domestic Violence, 90 N.Y.U. L. Rev. 397,  428-29 (2015).

[17] Id. at 429.

[18] Id. at 429-30.

[19] People v. Ortega, 15 N.Y.3d 610, 619 (N.Y. 2010).

[20] Fed. R. Evid. 803(2) (emphasis added).

[21] Collins, supra note 11.

[22] Compan v. People, 121 P.3d 876, 883 (Colo. 2005).

[23] Id.; but see United States v. James, 164 F. Supp. 2d 718, 719 (D. Md. 2001), in which the court allowed a broader approach to the exception by admitting the victim’s statements to a police officer after her husband had pushed and slapped her, and the victim indicated that she wanted to press charges.

[24] 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, 180 (2002).

[25] Id. at 181.

[26] Fed. R. Evid. 803(1).

[27] Fed. R. Evid. 803(1) advisory committee’s note; see State v. Jackson, No. 18881, 2002 WL 398655, at *1 (Ohio Ct. App. Mar. 15, 2002) (admitting victim’s statements to her mother “describing events that were then transpiring”).

[28] Abuser Tricks, New Hope for Women, http://www.newhopeforwomen.org/abuser-tricks (last visited Dec. 14, 2015).

[29] Id.

[30] Davis v. Washington, 547 U.S. 813 (2006).

[31] Id. at 822; Fed. R. Evid. 803.

[32] Fed. R. Evid. 804(6).

[33] Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 808 (2005).

[34] Giles v. California, 554 U.S. 353, 377 (2008).

[35] Collins, supra note 11, at 436 n.207.

[36] Id. at 435-36.

[37] Id. at 438.

[38] Giles, 554 U.S. at 380 (Souter, J., concurring).