A US Supreme Court decision (Crawford v. Washington) is analyzed in an article by R. Michael Cassidy of Boston College Law School (michael.cassidy@bc.edu). (cc) 11-1-2006
Reconsidering Spousal Privileges after Crawford
Be sure to read this very interesting and instructive article.
However, for Washington State residents, read the following law as well:
“Police officers put their lives at risk by responding to a victim’s call for help; having invoked the resources of society, domestic violence victims have forfeited the right to exercise a the resources of society, domestic violence victims have forfeited the right to exercise a veto over how society decides to respond to the threat once it has been exposed.”
(I’m a loser, baby…so why don’t you kill me?)
young Ayn Rand, author and collectivism refugee
This reminds one of Ayn Rand’s disdain for presumptions in favor of the ‘collective’. She believed the concept was an artifice undermining individual freedoms, choice, and association. A close reading of the article reveals echoes of why she viewed ‘collectivism’ with suspicion.
See United States. v. Owens, 484 U.S. 554, 562 (1988) (successful assertion of a privilege renders a witness unavailable for cross examination under the Confrontation Clause). See also FED. R. EVID. 804(a) (defining unavailability to include excusal on the ground of privilege). ‘Unavailaility’ triggers an exception to the “hearsay” rule. Thus, ‘testimonial’ statements by such a witness would be admitted. The “hearsay” from the ‘unavailable’ witness would be permitted.
The article’s author goes on to say:
“In light of Crawford, states should be reconsidering their state marital privilege statutes to determine whether they truly are in accord with the public interest. After all, one glimmer of hope for prosecutors in the Crawford opinion is that hearsay statements may be admitted at trial so long as the declarant testifies and is subject to cross examination; it does not matter whether the victim affirms or disavows the prior statement, or even if she recants the allegation of abuse entirely. Physical presence and testimony at trial- -coupled with the option of the defendant to cross examine- – are all that are necessary to satisfy the demands of the Confrontation Clause. Domestic violence prosecutions can thus still be successful with uncooperative witnesses (even those who profess a complete lack of memory of the incident) so long as no valid privilege stands as a lawful impediment to their being called as a witness.”
Inter alia, the author prefers rules rooted in long held notions of fundamental fairness and Due Process, along with the sanctity of the marital bond, be altered in favor of making it easier to gain a conviction despite the wishes of the victim…all this as a result of his estimation that collective paternalism should trump the interests of the parties most directly involved.
The author repeatedly advances the argument that lay marital couples are too ignorant/unsophisticated about privileged communication between them to benefit from the same.