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ABSTRACT
The excited utterance hearsay exception has enabled the effective prosecution of domestic violence in cases where the victim refuses to participate in the prosecution of his or her abuser. However, the United States Supreme Court's decision in Crawford v. Washington has thrown this practice into question by limiting what is properly considered an excited utterance and by subjecting the admissibility of testimonial out-of-court statements to the requirements of witness unavailability and cross-examination. While the Crawford decision does not signal the end of excited utterances, it does represent a challenge that prosecutors must be willing to meet in the courtroom. Ultimately, Crawford should not hinder the prosecution of domestic violence because its requirements do not apply to excited utterances due to their spontaneous, nontestimonial nature. Furthermore, if a victim's statement is found to be testimonial but the victim's unavailability is a result of the defendant's misconduct (e.g., threats or further violence towards the victim), Crawford's rule should not apply because the defendant has forfeited his or her right to confrontation.
I. INTRODUCTION
The prosecution of domestic violence cases involves a unique set of concerns, including the quandary of what to do when a victim will not testify in the prosecution of his or her abuser. Lack of victim participation is so common that one author observed, "Victims' false recantations or failure to appear at trial ... are the norm in domestic violence cases."1 In fact, victims of domestic violence are nine times more likely than victims of non-domestic assault to request that their cases be dropped,2 and estimates of the attrition rate of victim-initiated cases reach as high as eighty percent.3
There are numerous reasons why a victim might refuse to work with prosecutors in the prosecution of his or her abuser, including dissatisfaction with the criminal justice system, fear of physical retaliation by the abuser, a temporary diminishment of abuse in the relationship, and concerns regarding the loss of financial support.4 Furthermore, pressure from a batterer may cause a victim to refuse to testify, to change his or her account of the incident of violence when testifying in court, or to recant altogether.5 Whatever a victim's motivation for refusing to participate, the prevalent failure to do so has created a significant problem...