Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court Statements as Substantive Evidence

The hearsay rule that excludes the reliable initial report of abuse by the domestic violence victim mocks the truth-finding process because victims’ false recantations or failure to appear at trial (hereinafter “no- show”) are the norm in domestic violence cases. Batterers pressure domestic violence victims to recant, which typically results in the failure of victims to appear or, alternatively, in testimony at trial that is less reliable than the victim’s initial report of the abuse. When a domestic violence victim fails to appear for trial because of a batterer’s coercion, fear of the batterer, or the potentially drastic consequences of leaving the batterer, the hearsay rule promotes the failure of the criminal case by excluding the initial report of abuse. As the hearsay rule excludes out of court statements of abuse, recantation or no-show by the victim results in no charge, dismissal, or acquittal. In most jurisdictions, the hearsay rule prohibits the use of domestic violence victims’ initial report of abuse as substantive evidence. Reform efforts within the criminal justice system designed to address the epidemic of domestic violence have failed to address hearsay problems and instead have focused on adoption of other informal and formal policy initiatives. This article argues that given that victims recant or fail to appear at trial in the majority of domestic violence cases, existing exceptions to the hearsay rule are inadequate to achieve truth-finding in these cases. The article proposes and analyses the constitutionality of two hearsay exceptions that provide solutions to the problem of the inadmissibility of the victim’s initial report. The proposed exceptions would greatly enhance truth-finding.