St. Mary's Law Journal


Donna D. Bloom


In response to domestic violence involving victims who do not wish to cooperate in the prosecution of their abuser, prosecutors endeavor to frame cases around other evidence establishing a defendant’s guilt regardless of the victim’s testimony. Domestic violence cases set for trial are being thrown out of Texas courts because of the recent U.S. Supreme Court ruling that reasserts a defendant’s right to confront his accuser in court. Prosecutors believe that strong legal arguments exist to continue successfully prosecuting abusers without the cooperation of the victim at trial. This is through the continued admission of certain hearsay statements, despite Crawford v. Washington. Under Crawford, the Sixth Amendment Confrontation Clause analysis centers on whether a certain statement is “testimonial” in nature. If testimonial, the Confrontation Clause prohibits the prosecution from using the statement against a criminal defendant unless the declarant is not available to testify, and the defendant has had a previous opportunity to cross-examine the declarant. In Texas, if a court determines the prosecutor has met the burden of satisfying each of the requirements for the admissibility of the excited utterance, then a determination that those statements are nontestimonial should follow. Despite the current uncertainty in the current landscape, prosecutors must not give up on the value of an evidence-based prosecution. If excited utterance exceptions to the hearsay rule are deemed inadmissible under Crawford, it instructs abusers they can threaten their victims, and it will result in the victim’s non-cooperation with the prosecution. Texas courts should carefully analyze excited utterance statements made by victims of domestic violence to responding police officers. If they do, such statements will survive, and evidence-based prosecution will continue to save lives.


St. Mary's University School of Law