Reconsidering Spousal Privileges after Crawford

Abstract

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider their spousal privilege rules in light of Crawford —many of which are poorly conceived, confused, and outdated—and should reform these statutes to add a spousal crimes exception to both the adverse testimonial privilege and the confidential communication privilege.