Egerman on Avoiding Confrontation

Avoiding Confrontation is a new paper by Mark Egerman, a Fellow at Georgetown University Law Center. Here's the abstract:

This article takes seriously Justice Scalia’s facetious 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 was used as a judicial fact-finder 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 non-adjudicatory 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. Hierarchical crimes which focus on the domination of a subordinated victim present different concerns than the types of crime anticipated by our doctrine of confrontation. This helps explain why the recent set of Confrontation rulings have caused such problems within the domestic violence scholarly community and presented such a serious challenge to effective prosecution of these crimes.

While most scholars addressing these concerns have argued that the Court has misinterpreted the Confrontation Clause, this article believes that the Court may very well be right and confrontation doctrine may pose a problem that cannot be reconciled through traditional means. Justice Scalia was correct; perhaps we do need a separate doctrine to address these concerns. The article concludes by proposing the partial unincorporation of the Confrontation Clause as it applies to victims of domestic violence in state courts.