Exigency

Exigency has, with little notice, become central to judicial interpretations of both the Fourth Amendment Warrant Clause and the Sixth Amendment Confrontation Clause—particularly with regard to the policing and prosecution of domestic violence. In the Fourth Amendment setting, the Court has exhibited a factually nuanced understanding of the dynamics of abuse—an understanding that informs its analysis of exigency in domestic violence cases. By contrast, the Court’s categorical approach to the Confrontation Clause has yielded a view of exigency that does not accommodate similarly contextualized determinations. The divergence is striking, and raises the question: why should empirical realities be understood differently depending on the particular legal framework applied to them? The answer exposes fundamental flaws in the Court’s interpretation of the right of confrontation.