Opinion | We Prosecute Murder Without the Victim’s Help. Why Not Domestic Violence?

‘The whole domestic violence community was just reeling.’

Crawford v. Washington, a 2004 Supreme Court case, ruled that the Sixth Amendment’s confrontation clause barred admission of any testimonial statements made out of court, unless the witness who made the statement testified and was subject to cross-examination.

Jon Tunheim, a prosecutor in Thurston County, Wash., where the Crawford case originated, said that while the case was being argued, no one was even really paying attention. The question of what evidence was or wasn’t allowed seemed like settled law.

But once it was decided, Crawford hit the growing movement for evidence-based prosecution hard. Prosecutors could no longer use the statements of victims who would not appear in court. Michelle Monson Mosure’s affidavit, for example, would have been admissible in 2001 — the year she was killed — but would have been inadmissible under Crawford three years later.

“For about a year afterward the whole domestic violence community was just reeling,” Mr. Tunheim told me.

It has taken a while to gain its footing again. Prosecutors can still pursue domestic violence cases without victim testimony or cooperation. I recently sat in on a conference where a prosecutor from San Diego, Marnie Layon, gave examples of viable post-Crawford evidence: a victim’s demeanor, a platter of food spilled across the floor, independent witness observation, frantic calls or text messages to family and friends for help, social media posts.

And there is still some room for state courts to determine admissible evidence. A new set of cases, Hammon v. Washington and Davis v. Washington, have helped clarify what testimonial statements — ruled inadmissible under Crawford — actually mean. Emergency calls, for example, may or may not be allowed, and body camera footage, which is more and more common, bolsters many domestic violence cases.

But prosecuting in the post-Crawford era requires “creativity, ingenuity, hard work and dedication,” said Teresa Garvey, a former New Jersey prosecutor and attorney adviser at Aequitas, a nonprofit organization that helps prosecutors with gender-based violence. Gretta Gardner, a former Baltimore City prosecutor and now deputy director of the DC Coalition Against Domestic Violence, said a lot of prosecutors get scared off at the prospect of an aggressive defense lawyer. Crawford “gave them an excuse if a case was too difficult,” she said.