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Silent Witness

Prosecutors increasingly rely on evidence, not testimony, in domestic violence cases.

When police officers arrive on the scene that involves domestic violence, timing is critical. This is when the strongest evidence is collected and the most important testimony is taken. Emotions are still raw, and the creeping sense of self-doubt has not yet settled.

Later, women who have been battered will often contradict statements made in the first few minutes when the police arrive. They will deny having bruises that are plainly evident in the photographs taken by patrol officers. The fear of retribution will prevent her from cooperating with prosecutors.

"It's not that they are giving false testimony in court, it's that they are protecting themselves," said Jill Morris, public police director for the National Coalition Against Domestic Violence. "The woman's life is in danger, so she won't really want to testify in court."

For Karin Riley, who prosecutes domestic violence cases for the commonwealth in Alexandria, working closely with the police department is crucial to gathering the kind of evidence that is needed under the law. Patrol officers who respond to domestic violence calls will produce the majority of evidence in most domestic violence cases, so it's important that police and prosecutors communicate. In a case she prosecuted last week, a police officer had gathered all the evidence that was needed to secure a conviction.

"He knew what kind of evidence that we needed to put together a solid case," she said, adding that the victim did not have to testify.

Under the Violence Against Women Act, federal grants have provided specialized training for patrol officers who are the first-responders to domestic violence cases. The training has included teaching best practices about gathering evidence, taking statements and decision-making. In September, the federal legislation will be before Congress for renewal.

THE CONSTITUTIONALITY of evidence-based prosecution has been challenged in federal courts. Last year, in Crawford v. Washington, the Supreme Court reformulated the standard for determining when the admission of hearsay statements in criminal cases was permitted under the Confrontation Clause of the Sixth Amendment to the United States Constitution.

The court unanimously reversed a conviction for attempted murder. Justice Antonin Scalia held that the Sixth Amendment's guarantee of the right of an accused to "be confronted with the witnesses against him" means that testimonial statements, which can't be cross examined, are not sufficient.

"Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation," wrote Scalia.