Davis/Hammon, Domestic Violence, and the Supreme Court: The Case for Cautious Optimism

The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. This acknowledgment is embodied in both the text of the opinion and in the Court’s jurisprudential compromise, which ensures that some victims at risk from testifying can still be protected by the criminal process. This Essay explains this perspective and suggests important avenues for advancing the jurisprudence to continue to better integrate the realities of domestic violence into constitutional standards.