Avoiding Confrontation
Volume 84, No. 4, Summer 2012
By Mark Egerman [PDF]

This Article takes seriously Justice Scalia’s aside in Giles v. California and examines whether there should be a separate confrontation doctrine for domestic violence cases. The history of confrontation is explored, starting with one of its predecessors, the judicial duel. Dueling served as a judicial factfinder for centuries and developed a complex series of regulations that focused not only on accuracy but also on the status of the participants. As the doctrine of confrontation developed, it retained some of the substantive status-oriented elements of dueling. An analysis of major cases from the common law and the Supreme Court tracks these developments and uncovers these elements. Modern confrontation doctrine is shown to embody nonadjudicatory elements concerned with status and social power.

These elements imagine a series of relationships between accuser and accused that do not adequately address the concerns reflected in domestic violence situations. This helps explain why recent confrontation clause decisions have presented such a serious challenge to effective prosecution of these crimes.

Although most scholars addressing these concerns contend that the Court misinterpreted the Confrontation Clause, this Article argues that the Court may very well be right. Indeed, confrontation doctrine may pose a problem that cannot be reconciled through traditional means. This Article concludes by proposing a legislative solution, whereby Congress could return to States the ability to successfully adjudicate domestic violence cases in state courts.

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