Auros (auros) wrote,

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Principle versus Pragmatism

I'm trying to make up my mind on what I think about Crawford v. Washington. Basically, Crawford stabbed a guy whom he claims he believed had attempted to rape his wife; his wife's account of events was slightly different, but he invoked spousal privilege to keep his wife off the stand; so the prosecution used some sort of recorded testimony (I'm not clear on whether it was audio, video, or transcript). He successfully argued that this conflicts with the guarantee of the right to confront witnesses (to allow the defense to cross-examine, and ask questions of its own).

On the one hand, I have to concede that I think that the unanimous decision is right in regard to both the spirit and the letter of the Sixth Amendment. But it's hard to escape the conclusion that this is going to roll back the trend away from preventing the defense of rapists, abusers, etc, drag in the victims.

Maybe the prosecutors can at least find ways to build cases that don't depend on the victim's testimony... Hospital reports, stuff like that -- facts that don't involve statements about how things happened, just what actually is known to have happened.

I dunno... I'd like to think that we can adhere to the principle and still find a to avoid dragging the victims in... I'm sort of inclined to think that some things -- say, recordings or transcripts of 911 calls, or at least a statement from the 911 operator that such a call occurred -- ought to be admitted simply because they are just part of the facts. The defense is welcome to question whether the the 911 call might have been frivolous, and to point out that the witness was unwilling to appear and comment on the call. This is sort of the equivalent of an eyewitness hearing somebody yell "Help!" The witness's statement in court would not be hearsay, because the content of what was being "said" is irrelevant -- the evidence being provided is simply that the person was distressed.

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