Thanks to the National Football League, our nation has seen a lot of discussion about domestic violence recently which actually, in the long run, might be good. Surely there are areas the criminal justice system can improve on.

So, when an article is published that suggests we need to be thoughtful about how to improve the criminal justice system, it is worth reading. The Criminal Law Professor’s blog has a posting on an article by Erin R. Collins (New York University School of Law) posted on SSRN:  The Evidentiary Rules of Engagement in the War Against Domestic Violence (New York University Law Review, May 2015, Forthcoming).

Here is the abstract:

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.

This article reveals that presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support the prosecution.