Amicus Curiae Brief — Ohio, Petitioner v. Garry Smith

No. 24-985

IN THE

Supreme Court of the United States

STATE OF OHIO,

Petitioner,

v.

GARRY SMITH,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Ohio

BRIEF OF JOYFUL HEART FOUNDATION

AND AEQUITAS AS AMICI CURIAE

SUPPORTING PETITIONER

ALEXANDRA D. VALENTI

GOODWIN PROCTER LLP

620 Eighth Avenue

New York, NY 10018

SIERRA J. PEREZ-SPARKS

Counsel of Record

JORDAN BOCK

MOLLY R. GRAMMEL

ALEXANDRA LU

EMILY L. RAPALINO

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

sperezsparks@goodwinlaw.com

(617) 570-1095

May 14, 2025

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE ...................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 3

I.

The Ohio Supreme Court’s “Ongoing

Emergency” Analysis Is Divorced from

the Realities of Domestic Violence. ................. 3

II.

The Ohio Supreme Court’s Limited

Understanding of an Ongoing

Emergency Will Harm Efforts To

Protect Victims and the Broader Public. ...... 10

A.

Abusers Often Coerce Their Victims

into Not Testifying at Trial. ...............10

B.

The Decision Undermines EvidenceBased Prosecutions, Which Are

Necessary To Thwart Abusers’

Efforts To Procure Their Victims’

Nonparticipation at Trial. ..................15

CONCLUSION ......................................................... 17

ii

TABLE OF AUTHORITIES

Page(s)

CASES:

Crawford v. Washington,

541 U.S. 36 (2004) ............................................. 16

Giles v. California,

554 U.S. 353 (2008) ................... 10, 12, 14, 15, 16

Michigan v. Bryant,

562 U.S. 344 (2011) ......................................... 8, 9

People v. Reneaux,

264 Cal. Rptr. 3d 459 (2020) ....................... 13, 14

State v. McKelton,

70 N.E.3d 508 (Ohio 2016).......................... 14, 15

State v. Smith,

2024-Ohio-5745, 2024 Ohio LEXIS 2784

(Dec. 10, 2024) ..................................................... 3

State v. Smith,

209 N.E.3d 883 (Ohio Ct. App. 2023),

aff’d in part, rev’d in part, 2024-Ohio5745 ..................................................................... 5

OTHER AUTHORITIES:

About Domestic Violence, Joyful Heart

Found., https://www.joyfulheart

foundation.org/learn/domestic-violence/

about-domestic-violence ................................ 4, 10

iii

About Intimate Partner Violence, U.S. Ctrs.

for Disease Control & Prevention (May

16, 2024), https://www.cdc.gov/intimatepartner-violence/about/index.html ..................... 2

AEquitas, “Next-Level” Compulsion of

Victim Testimony in Crimes of Sexual

and Intimate Partner Violence,

Strategies Newsletter (Jan. 2023) .................... 15

Amy E. Bonomi & David Martin,

Recantation and Domestic Violence: The

Untold Story (2023)........................................... 11

Amy E. Bonomi et al., Medical and

Psychosocial Diagnoses in Women With a

History of Intimate Partner Violence, 169

Archives of Internal Med. 1692 (2009) ............. 12

Amy E. Bonomi et al., “Meet Me at the Hill

Where We Used To Park”: Interpersonal

Processes Associated with Victim

Recantation, 73 Soc. Sci. & Med. 1054

(2011) ........................................................... 11, 12

Kerry Breen, “Mass Killers Practice at

Home”: How Domestic Violence and

Mass Shootings are Linked, CBS News

(June 17, 2023) .................................................... 6

Ashley S. D’Inverno et al., The Impact of

Intimate Partner Violence: a 2015

NISVS Research-in-Brief, Nat’l Ctr. for

Injury Prevention & Control (2019) ................... 2

iv

Deborah Epstein & Lisa A. Goodman,

Discounting Women: Doubting Domestic

Violence Survivors’ Credibility and

Dismissing Their Experiences, 167 U. Pa.

L. Rev. 399 (2019) ............................................. 11

Christa Hillstrom, The Hidden Epidemic of

Brain Injuries From Domestic Violence,

N.Y. Times (Mar. 1, 2022) ................................ 12

Andrew R. Klein, Practical Implications of

Current Domestic Violence Research: For

Law Enforcement, Prosecutors and

Judges, Nat’l Inst. of Just. (2009)..... 4-5, 8, 11-14

William J. Krouse & Daniel J. Richardson,

R44126, Mass Murder with Firearms:

Incidents and Victims, 1999-2013, Cong.

Rsch. Serv. (2015) ............................................... 6

Lethality Assessments and Extremely

Dangerous Behavior, The Advocs. for

Hum. Rts. (2019), https://www.stop

vaw.org/lethal_and_extremely_dangerous_

behavior ............................................................... 5

TK Logan & Rob Valente, Who Will Help

Me? Domestic Violence Survivors Speak

Out About Law Enforcement Responses,

Nat’l Domestic Violence Hotline (2015) ..... 13, 16

Lauren Pelley, Leaving Relationship Is

‘Most Dangerous Time’ for Domestic

Violence Victims, Experts Say, CBC

News (Dec. 8, 2016) ............................................. 5

v

Alex R. Piquero & Andrew Wheeler, Toward

a Better Estimate of Domestic Violence in

America, Council on Crim. Just. (Oct.

2024), https://counciloncj.org/toward-abetter-estimate-of-domestic-violence-inamerica/ ............................................................. 16

James Silver et al., A Study of the PreAttack Behaviors of Active Shooters in

the United States Between 2000 and

2013, FBI (2018).................................................. 6

Nancy Simpson, Benefits and Drawbacks of

No-Drop Policies and Evidence-Based

Prosecution, 26 Rich. Pub. Int. L. Rev.

141 (2023) .................................................... 14, 16

Sharon G. Smith et al., Intimate Partner

Homicide and Corollary Victims in 16

States: National Violent Death Reporting

System, 2003-2009, 104 Am. J. Public

Health 461 (2014)................................................ 6

Patricia Tjaden & Nancy Thoennes, Extent,

Nature, and Consequences of Intimate

Partner Violence (“Consequences”), Nat’l

Inst. of Just. (2000) ....................................... 5, 16

Jennifer L. Truman & Rachel E. Morgan,

Nonfatal Domestic Violence, 2003-2012,

Bureau of Just. Stat. (2014) ............................... 2

Emma Tucker, Domestic Incidents Are

Highly Dangerous for Police Officers,

Experts Say, CNN (Jan. 22, 2022) ...................... 6

vi

Daniel W. Webster et al., Evidence

Concerning the Regulation of Firearms

Design, Sale, and Carrying on Fatal

Mass Shootings in the United States, 19

Criminology & Public Policy 171 (2020) ............ 6

1

INTEREST OF THE AMICI CURIAE1

AEquitas provides training and other resources to

prosecutors, law enforcement, advocates, and allied

professionals who respond to crimes of domestic and

sexual violence, human trafficking, stalking, and related offenses. Its staff is composed primarily of former

prosecutors with expertise in these areas, and its work

incorporates best practices and up-to-date research in

law, social science, medicine, forensic science, police

science, and related fields.

Joyful Heart Foundation is a national organization

working to transform society’s response to, and end,

domestic violence and sexual assault. Founded in 2004

by Mariska Hargitay, Joyful Heart Foundation carries

out its mission through an integrated program of education and advocacy, from developing innovative approaches to treat trauma to advancing policies and legislation to improve access to justice for survivors. Ensuring that courts can consider all relevant evidence of

domestic and sexual violence—whether in the form of

physical evidence like rape kits or victim statements

about the crime—is a top priority of the organization’s

advocacy work.

Amici submit this brief to ensure that the Court’s

Confrontation Clause analysis is informed by wellfounded research on domestic violence and the individual and societal impact of these crimes. This brief further illustrates the many ways abusers can coerce their

1 No counsel for a party authored any part of this brief, and no

person other than amici curiae, its members, or its counsel made a

monetary contribution intended to fund its preparation or

submission. Amici curiae timely provided notice of intent to file

this brief to all parties.

2

victims to recant or not participate in prosecutions and

describes how evidence-based prosecution prevents

abusers from acting with impunity and protects victims from sometimes lethal risks.

SUMMARY OF ARGUMENT

Intimate partner violence—one form of domestic violence—is a national epidemic of astounding proportions, affecting an estimated 41% of women and 26% of

men.2 Unlike other forms of violent crime, the hallmark of this type of violence is the ongoing cycle of

physical, sexual, and psychological abuse used to coerce intimate partners to act against their will or best

interests and prevent them from escaping the abuser’s

control. The persistent threat of harm is an everpresent danger to victims; it does not abate simply because one physical attack has ended. Many victims cohabitate with their abusers, and many suffer retaliation if and when they seek help. Thus, a temporary

pause in abuse when police arrive does not mean that

the victim is safe or that the threat of immediate, further violence has passed.

The Ohio Supreme Court did not engage with these

2 About Intimate Partner Violence, U.S. Ctrs. for Disease Control

& Prevention (May 16, 2024), https://www.cdc.gov/intimatepartner-violence/about/index.html; see also Ashley S. D’Inverno et

al., The Impact of Intimate Partner Violence: a 2015 NISVS Research-in-Brief, Nat’l Ctr. for Injury Prevention & Control, 3

(2019), https://stacks.cdc.gov/view/cdc/137398/cdc_137398_DS1.

pdf; Jennifer L. Truman & Rachel E. Morgan, Nonfatal Domestic

Violence, 2003-2012, Bureau of Just. Stat., 1 (2014),

https://bjs.ojp.gov/content/pub/pdf/ndv0312.pdf. “Domestic violence includes victimizations committed by intimate partners . . . ,

immediate family members . . . , and other relatives.” Truman,

supra, at 1.

3

realities when holding that the “primary purpose” of

B.B.’s3 recorded statements to law enforcement was not

to address an “ongoing emergency” but to “establish or

prove past events potentially relevant to later criminal

prosecution.”4 And in failing to consider the persistent

danger that overshadows victims of domestic violence,

the court’s ongoing emergency analysis lacked the context necessary to understand the primary purpose of

B.B.’s statements to police, which was not to create a

record for trial but to establish whether her abuser

posed an ongoing, immediate danger to B.B. or to the

public more generally. Left undisturbed, the Ohio Supreme Court’s decision will hamper efforts to bring

perpetrators to justice: It will deter prosecutors from

pursuing domestic violence cases, compound victims’

trauma, and ultimately undermine public safety.

For these reasons, the Court should grant the petition.

ARGUMENT

I. The Ohio Supreme Court’s “Ongoing Emergency” Analysis Is Divorced from the Realities

of Domestic Violence.

Domestic violence is not an isolated incident of

physical aggression; it is a persistent pattern of physical, sexual, and psychological abuse to instill fear and

coerce intimate partners to act against their own will

3 Consistent with Petitioner’s convention, this brief refers to the

victim by her initials, B.B.

4 State v. Smith, 2024-Ohio-5745, 2024 Ohio LEXIS 2784, at ¶ 53

(Dec. 10, 2024), reproduced at Pet. App. 1a-35a.

4

or best interests.5 The Ohio Supreme Court, however,

did not acknowledge these hallmarks of domestic violence when conducting its “ongoing emergency” analysis under the Sixth Amendment. Instead, the court effectively cabined the “emergency” to the moments of

violent physical aggression that precipitated B.B.’s

contact with police and medical personnel, determining

that B.B. was no longer in danger “because she was

safe with Officer Soucek and the EMTs in the ambulance.”6 This restricted view overlooks that an emergency stemming from domestic violence does not necessarily end when one physical attack ceases—and it certainly may extend beyond the temporary departure of

the abuser and the arrival of first responders.

Because incidents of domestic violence are part of a

pattern of recurring abuse,7 perpetrators pose a persistent threat to their victims, unlike, for example, those

who commit single-incident assaults. Many perpetrators of domestic violence cohabitate with their victims,8

thereby depriving many victims of refuge after an attack.9 Victims thus may find themselves in danger

5 See About Domestic Violence, Joyful Heart Found., https://www.

joyfulheartfoundation.org/learn/domestic-violence/about-domesticviolence (last visited May 8, 2025).

6 Pet. App. 20a.

7 Andrew R. Klein, Practical Implications of Current Domestic Vio-

lence Research: For Law Enforcement, Prosecutors and Judges

(“Practical Implications”), Nat’l Inst. of Just., 18 (2009),

https://www.ojp.gov/pdffiles1/nij/225722.pdf.

8 See Klein, Practical Implications, supra note 7, at 56. Cohabita-

tion occurred here. Pet. App. 6a.

9 One-third of victims in a study opposed the abuser’s prosecution

because they relied on the abuser for housing. See Klein, Practical Implications, supra note 7, at 39.

5

again in the immediate aftermath of an attack.10

Compounding that risk is that an attempt to find distance and safety after an attack may place victims at

further risk. One study found that 12% of petitions for

protective orders described incidents of retaliation

against the victim for having called the police for

help.11 Other research shows that victims are generally in the most danger when they attempt to leave their

abusers12—and, too often, that is when abuse turns fatal.13 For these reasons, a victim of domestic violence

may still be in need of ongoing help or protection from

the abuser even if the abuser has left the scene of the

attack and first responders have arrived. Unlike a single incident of random assault, the risk that a domestic

abuser will return and resume violence is high, which

10 Most abusers who reoffend do so quickly.

Klein, Practical Implications, supra note 7, at 21. Over time, the violence in violent

relationships tends to escalate. Lethality Assessments and Extremely Dangerous Behavior, The Advocs. for Hum. Rts. (2019),

https://www.stopvaw.org/lethal_and_extremely_dangerous_beha

vior. The record below supports these conclusions: The violence

against B.B. was becoming increasingly severe, and an officer responding to another incident involving B.B. and her abuser feared

B.B. would be “in danger” if her abuser returned. State v. Smith,

209 N.E.3d 883, 896 (Ohio Ct. App. 2023), aff’d in part, rev’d in

part, 2024-Ohio-5745, reproduced at Pet. App. 55a-128a.

11 Klein, Practical Implications, supra note 7, at 57.

12 Lauren Pelley, Leaving Relationship Is ‘Most Dangerous Time’

for Domestic Violence Victims, Experts Say, CBC News (Dec. 8,

2016), https://www.cbc.ca/news/canada/toronto/domestic-violencevictims-1.3885381. One study found that 48% of petitions for protective orders described separation violence. Klein, Practical Implications, supra note 7, at 57.

13 See Patricia Tjaden & Nancy Thoennes, Extent, Nature, and

Consequences of Intimate Partner Violence (“Consequences”), Nat’l

Inst. of Just., 37 (2000), https://stacks.cdc.gov/view/cdc/21858.

6

extends the period of the emergency in domestic violence cases.

The victim is not the only person threatened in the

period of prolonged danger during and following a specific incident of physical violence. Police officers are at

particular risk when responding to reports of domestic

violence,14 as are family members, friends, and even

strangers, who together make up 20% of homicide victims stemming from domestic violence incidents. 15

Similarly, the connection between domestic violence

and mass gun violence is well documented,16 and research suggests that domestic disputes are a contributing factor in about 20% of mass shootings.17 Thus,

14 Emma Tucker, Domestic Incidents Are Highly Dangerous for

Police Officers, Experts Say, CNN (Jan. 22, 2022),

https://www.cnn.com/2022/01/22/us/domestic-incidents-policeofficers-danger/index.html.

15 See Sharon G. Smith et al., Intimate Partner Homicide and Cor-

ollary Victims in 16 States: National Violent Death Reporting System, 2003-2009, 104 Am. J. Public Health 461, 463-64 (2014).

16 See, e.g., James Silver et al., A Study of the Pre-Attack Behav-

iors of Active Shooters in the United States Between 2000 and

2013, FBI, 12 (2018), https://www.fbi.gov/file-repository/preattack-behaviors-of-active-shooters-in-us-2000-2013.pdf/view;

Kerry Breen, “Mass Killers Practice at Home”: How Domestic Violence and Mass Shootings are Linked, CBS News (June 17, 2023),

https://www.cbsnews.com/news/mass-shootings-domestic-violenceabuse-connection-research/ (“Taken together, around 68% of mass

shooters either killed their family and intimate partners, or they

have a history of domestic violence.”).

17 William J. Krouse & Daniel J. Richardson, R44126, Mass Mur-

der with Firearms: Incidents and Victims, 1999-2013, Cong. Rsch.

Serv., 17 (2015); see also Daniel W. Webster et al., Evidence Concerning the Regulation of Firearms Design, Sale, and Carrying on

Fatal Mass Shootings in the United States, 19 Criminology & Pub-

7

even after the abuser has left the scene of the attack,

law enforcement may try to elicit a wide variety of

statements from the victim to better understand the

abuser’s risk profile while the period of emergency is

still ongoing.

Not only did the Ohio Supreme Court err by failing

to consider these realities when evaluating whether

there was an “ongoing emergency” when the police arrived and questioned B.B., but the court drew conclusions exactly opposite to what the research teaches

about domestic violence. To start, the court determined that the questioning officer “did not believe that

he was responding to an ongoing emergency” because

the officer’s second question—after “what had happened”—was to ask if B.B. lived with her assailant.18

From the Ohio Supreme Court’s perspective, that question “had no bearing, at least in this case, on whether

there was an ongoing emergency.” 19 But, as discussed,

pp. 4-5, supra, many victims live with their abusers

and, therefore, cannot escape the danger of immediate

future harm even after one attack has ended. Thus, a

case like this one presents precisely the circumstances

in which the officer’s question related to determining

whether the emergency was ongoing.

The Ohio Supreme Court’s misunderstanding of the

persistent danger victims of domestic violence face

pervades its decision. It concluded that B.B. was “safe”

simply because she was “separated” from her abuser

and in the care of first responders, and that B.B. “did

lic Policy 171, 187 (2020) (“Twenty-eight percent of the shootings

in this study had some connection to domestic violence.”).

18 Pet. App. 19a.

19 Pet. App. 20a (emphasis added).

8

not treat the situation as an ongoing emergency” in

part because her abuser had “dr[iven] away.”20 But it

is well established in the domestic violence context

that “suspects who flee the scene before police arrive

are significantly more likely . . . to reabuse than those

arrested at the scene.”21 And a temporary pause in

physical violence does not mean that a victim is “safe.”

The court further discounted B.B.’s perception of danger because she first sought help from family and medical personnel instead of “actively calling for help.”22 In

doing so, the court ignored the complex dynamics underlying a domestic victim’s decision to seek help from

police, including that reaching out for help may increase the likelihood of follow-on violence a victim may

suffer. See p. 5, supra.

In addition to underestimating the ongoing threat

B.B. faced, the Ohio Supreme Court also discounted

the threat posed to responding police and the public

more generally. As discussed, p. 6, supra, there is a

documented correlation between domestic violence and

future—sometimes imminent—threats to the general

public. But the Ohio Supreme Court dismissed police

questioning about B.B.’s abuser’s whereabouts, perhaps because the court had begun from the proposition

that “domestic-violence cases ‘often have a narrower

zone of potential victims than cases involving threats

to public safety.’”23 That assumption does not reflect

what the research shows and what amici, in their pro20 Pet. App. 20a-23a.

21 Klein, Practical Implications, supra note 7, at 12.

22 Pet. App. 21a.

23 Pet. App. 15a (quoting Michigan v. Bryant, 562 U.S. 344, 363

(2011)).

9

fessional experience, know to be true—that domestic

violence is not a “private” matter but may be a precursor to attacks targeting first responders and the general public. By failing to appreciate the magnitude and

duration of the danger posed by abusers, the Ohio Supreme Court undermines the safety of victims, police,

and the public.

For these reasons, the Court should grant the petition to clarify the proper scope of an ongoing emergency in a Confrontation Clause analysis, both for the victim and the public at large. With respect to victims,

the analysis in a domestic violence case necessarily

must account for the well-documented dynamics of domestic violence and how those “circumstances” bear on

the “primary purpose” of the police questioning and

victim’s statements.24 And with respect to the public

at large, the Court should take the opportunity to correct the misconception at the heart of this and other

Confrontation Clause cases that domestic violence is a

quintessentially “private” dispute that involves a “narrower zone of potential victims.”25 Courts should not

presume that domestic violence cases do not present a

broader threat to public safety,26 but should instead

undertake the same case-by-case analysis used in all

Confrontation Clause cases.

24 Bryant, 562 U.S. at 370.

25 Id. at 363, 365.

26 See p. 6, supra (describing how domestic violence often harms

people other than the primary target).

10

II. The Ohio Supreme Court’s Limited Understanding of an Ongoing Emergency Will Harm

Efforts To Protect Victims and the Broader

Public.

The Ohio Supreme Court’s cramped understanding

of what constitutes an ongoing emergency will ultimately increase the pressure on victims to testify at

trial, thereby perpetuating the trauma they suffer and

harming efforts to protect victims and the broader public. By excluding statements made by a domestic violence victim during an ongoing emergency, the court

throws out a proper source of evidence in cases where

by the abuser’s design victim testimony at trial is exceptionally difficult—or impossible—to secure.

A. Abusers Often Coerce Their Victims into Not Testifying at Trial.

Victims of domestic violence are often unavailable

to testify at trial for reasons integrally related to the

abusive relationship. As the Supreme Court recognized in Giles v. California, “[a]cts of domestic violence

often are intended to dissuade a victim from resorting

to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.”27 Perpetrators abuse their victims

to maintain power and control over the relationship,

and they use physical, sexual, and psychological abuse,

among other tactics, to instill fear and coerce their victims to act against their self-interest.28 These dynamics of control and intimidation do not end simply because police have been called or the state prosecutes;

27 554 U.S. 353, 377 (2008).

28 About Domestic Violence, supra note 5.

11

rather, abusers frequently continue to coerce and control their victims after the precipitating criminal act

and even while the state is prosecuting the crime, including by coercing or influencing their victims not to

testify against them.

The effect in court of an abuser’s ongoing coercive

influence over his victim is well documented. One

study found that 25% of victims who opposed prosecution did so because their abusers threatened them. 29

Another study found that nearly half of abusers attempted to “talk” their victims out of testifying, and a

third of those perpetrators stalked their victims before

trial.30 Other research found that almost a quarter of

perpetrators re-abused their victims before trial.31 And

not all witness intimidation is overt: Abusers often resort to “softer” manipulation tactics to procure the victim’s unavailability at trial or otherwise frustrate justice (such as by convincing the victim to recant). A

2011 analysis of jail calls between abusers and their

victims found that a victim’s recantation was most often spurred by the abuser appealing for sympathy,

minimizing the abuse, or blaming the prosecutor for

the couple’s separation.32 These are just some of the

29 Klein, Practical Implications, supra note 7, at 39.

30 Id. at 40.

Research correlates victim nonparticipation in the

prosecution of his or her abuser with the victim’s cohabitation

with and financial dependence on the abuser. Amy E. Bonomi &

David Martin, Recantation and Domestic Violence: The Untold

Story (“Recantation”), PDF at 22 (2023).

31 Id.; see also Deborah Epstein & Lisa A. Goodman, Discounting

Women: Doubting Domestic Violence Survivors’ Credibility and

Dismissing Their Experiences, 167 U. Pa. L. Rev. 399, 439 (2019).

32 Amy E. Bonomi et al., “Meet Me at the Hill Where We Used To

Park”: Interpersonal Processes Associated with Victim Recanta-

12

many ways abusers maintain control over their victims

and “dissuade . . . [them] from resorting to outside

help.”33

The record in this case is marked by the classic

signs of the power dynamics in a domestic violence relationship, which provides a likely explanation for why

B.B. did not testify at her abuser’s trial. First, B.B. declined to participate in the criminal investigation long

before she declined to appear at trial.34 Victims of severe trauma “may be among the least able to cooperate

with law enforcement” due to the lasting impact of

their traumatic experiences.35 This can include posttraumatic stress disorder (affecting roughly 65% of

domestic violence victims),36 traumatic brain injury

(occurring among victims about 1.6 million times annually),37 severe anxiety (affecting 75% of victims), 38

and substance abuse disorders (occurring among victims at a rate six times greater than for non-victims).39

tion, 73 Soc. Sci. & Med. 1054 (2011); see also Bonomi, Recantation, supra note 30, PDF at 22-23.

33 Giles, 554 U.S. at 377.

34 See Pet. App. 71a.

35 Klein, Practical Implications, supra note 7, at 31.

36 Id. at 30; Christa Hillstrom, The Hidden Epidemic of Brain In-

juries From Domestic Violence, N.Y. Times (Mar. 1, 2022),

https://www.nytimes.com/2022/03/01/magazine/brain-traumadomestic-violence.html.

37 Hillstrom, supra note 36.

38 Klein, Practical Implications, supra note 7, at 30.

39 Amy E. Bonomi et al., Medical and Psychosocial Diagnoses in

Women With a History of Intimate Partner Violence, 169 Archives

of Internal Med. 1692 (2009). Many victims self-medicate with

drugs, Klein, Practical Implications, supra note 7, at 30, which is

13

Thus, a victim’s non-appearance at trial is likely the

direct consequence of the abuse she or he has suffered

at the hands of the defendant.40

Abusers may use subtler forms of intimidation to

prevent their victims from testifying. As discussed supra, p. 11, nearly half of abusers try to convince their

victims not to testify, and these efforts range from

overt threats to cajoling and “expressions of love and

desire.”41 At trial, the defendant testified he continued

to speak with B.B. following the incident, and that during those conversations she had promised him “she was

not going to present herself at the court to testify”

what B.B. said, Pet. App. 67a, 69a-70a. The court referenced

B.B.’s drug use, Pet. App. 21a, as evidence that B.B. did not believe her situation constituted an ongoing emergency but failed to

consider that her drug use may have been a symptom of or reaction to the abuse. And when evaluating B.B.’s hesitation to discuss her drug use in front of police, id. at 22a, the court overlooked

the fact that many victims are arrested or threatened with arrest

in the course of reporting abuse, which compounds the trauma

they experience and may be unrelated to any testimonial intent

when making other statements to police. See TK Logan & Rob

Valente, Who Will Help Me? Domestic Violence Survivors Speak

Out About Law Enforcement Responses, Nat’l Domestic Violence

Hotline, 8 (2015), http://www.thehotline.org/wp-content/uploads/

sites/3/2015/09/NDVH-2015-Law-Enforcement-Survey-Report.pdf.

40 The fact that many domestic violence victims, by operation of

the abuse they suffer, do not participate in the criminal investigation or prosecution of their abusers is an additional circumstance

that courts should consider when evaluating the primary purpose

of a victim’s statements to responding officers. Many victims never intend for (or want) their abuser to be prosecuted, which undermines any intent to make a testimonial statement.

41 People v. Reneaux, 264 Cal. Rptr. 3d 459, 471 (2020) (holding

defendant forfeited his right to confrontation by telling his victim

to recant, pledging his love, and asking for reassurance).

14

against him.42 Regardless of the type of intimidation

employed, an abuser’s attempt to preclude victim testimony is an extension of the psychological coercion inherent in a domestic violence relationship.43 And a victim’s decision not to participate at trial or in an investigation often reflects the victim’s assessment of the

best course available to minimize retaliation and further trauma.44

42 Pet. App. 105a.

43 Reneaux, 264 Cal. Rptr. 3d at 471 (recognizing that an abuser

may procure his victim’s nonparticipation at trial via statements

to the victim that are “not explicitly threatening and directive”).

See State v. McKelton, 70 N.E.3d 508, 546 (Ohio 2016) (“Evidence

of domestic violence is ‘highly relevant’ to analyzing the purpose

prong of the forfeiture exception.” (quoting Giles, 554 U.S. at

377)).

44 There are many other reasons why domestic violence victims

may be unavailable for trial, including difficulty remembering the

details of the trauma and fear of retaliation. One study found

that “[a] quarter of victims opposing prosecution reported being

specifically threatened by their abusers against prosecution,”

while “[o]thers expressed fear that their abusers would become

more violent.” Klein, Practical Implications, supra note 7, at 39.

Many victims report that they are more afraid of testifying than

they are of their abuser. Id. (“Specifically, victims expressed fear

that the prosecutors would not prepare them adequately to testify.”). Understandably, they may feel repelled by the prospect of

enduring multiple court appearances and repetitive interviews

during which they must continually relive their traumatic experience. See Nancy Simpson, Benefits and Drawbacks of No-Drop

Policies and Evidence-Based Prosecution, 26 Rich. Pub. Int. L.

Rev. 141, 150-51 (2023).

15

B. The Decision Undermines EvidenceBased Prosecutions, Which Are Necessary To Thwart Abusers’ Efforts To Procure Their Victims’ Nonparticipation at

Trial.

While misconstruing the scope of an ongoing emergency and improperly excluding nontestimonial statements could impede the prosecution of any crime, doing

so is particularly consequential in domestic violence

cases, where victims often are unable to appear and

testify against their abusers. After all, a domestic violence victim’s nonparticipation at trial is the natural

culmination of the abuser’s pattern of acts “intended to

dissuade a victim from resorting to outside help.” 45

And by excluding the victim’s nontestimonial statements, the court helps accomplish the abuser’s goal of

coercing the victim into continued silenced.

Understanding that many victims will never participate in the prosecution of their abuser, the state may

pursue an “evidence-based prosecution” similar to the

strategies employed in homicide cases, which rely on

other evidence to prove guilt, such as law enforcement

testimony, physical evidence, statements from the defendant, other witness testimony, and out-of-court testimonial victim statements under the well-established

doctrine of forfeiture by wrongdoing.46 Nontestimonial

45 Giles, 554 U.S. at 377.

AEquitas, “Next-Level” Compulsion of Victim Testimony in

Crimes of Sexual and Intimate Partner Violence, Strategies Newsletter, 5 (Jan. 2023), https://aequitasresource.org/wp-content/

uploads/2023/01/Next-Level-Compulsion-of-Victim-Testimony.pdf.

This Court (and the Ohio Supreme Court, see McKelton, 70 N.E.3d

508) has repeatedly recognized the equitable doctrine of forfeiture

by wrongdoing, which provides that a wrongdoer who has ren46

16

victim statements are a crucial source of evidence in

evidence-based domestic violence prosecutions because,

as a direct result of the abuse, they often are the only

way the victim’s voice and the victim’s perspective will

be heard in court.

By improperly excluding nontestimonial victim

statements, the Ohio Supreme Court’s decision seriously threatens the effectiveness of evidence-based domestic violence prosecutions. And if left undisturbed, the

decision also may push prosecutors to (i) refuse to

prosecute domestic violence cases, thus rewarding

abusers, or (ii) use the coercive power of the state to

compel victims to testify, effectively treating them as

offenders and causing further trauma. These hard

choices will erode trust in law enforcement and undermine efforts to encourage victims of domestic violence to come forward and report domestic violence

crimes,47 which already are significantly underreported.48 The Court should hear this case not only to clarify the scope of an ongoing emergency under the Confrontation Clause but also to affirm the important role

evidence-based prosecution plays in domestic violence

cases, where the abuser has insulated himself from the

dered a witness unavailable to testify at trial may not invoke his

Sixth Amendment confrontation right. See, e.g., Giles, 554 U.S. at

353; Crawford v. Washington, 541 U.S. 36, 62 (2004).

47 Simpson, supra note 44, at 151.

48 See Alex R. Piquero & Andrew Wheeler, Toward a Better Esti-

mate of Domestic Violence in America, Council on Crim. Just. (Oct.

2024),

https://counciloncj.org/toward-a-better-estimate-ofdomestic-violence-in-america/; Tjaden, Consequences, supra note

13, at 49. And many victims who call the police are dissuaded

from calling again, often due to negative interactions with police

or because they fear retaliation. Logan, supra note 39, at 6.

17

consequences of his crimes by the design and operation

of his abuse.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ALEXANDRA D. VALENTI

GOODWIN PROCTER LLP

620 Eighth Avenue

New York, NY 10018

SIERRA J. PEREZ-SPARKS

Counsel of Record

JORDAN BOCK

MOLLY R. GRAMMEL

ALEXANDRA LU

EMILY L. RAPALINO

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

sperezsparks@goodwinlaw.com

(617) 570-1095

May 14, 2025

Counsel for Amici Curiae