Prosecutorial Use of Expert Testimony in Domestic Violence Cases: From Recantation to Refusal to Testify
PROSECUTORIAL USE OF EXPERT
TESTIMONY IN DOMESTIC VIOLENCE
CASES: FROM RECANTATION TO REFUSAL
TO TESTIFY
A UDREYROGERS
The Warren Moon case in 1996 generated considerable media and
legal commentary on the issue of compelling a witness to testify against her
spouse. Moon, a professional football player, was prosecuted for battering
his wife even though she had refused to press charges. Pursuant to a 1995
Texas law that abolished spousal immunity, the prosecution called Moon's
wife, over her objection, to testify. In her testimony, she recanted her earlier
statements that her husband had beaten her. Moon 's subsequent acquittal led
to enormous publicity on the issue of whether his wife should have been
compelled to testify.1
The Moon prosecutor made no attempt to call an expert witness to
explain Mrs. Moon's recantation of her earlier statement that Moon "beat the
s**t out of me. ,2
* Associate Professor of Law, Pace University School of Law. I wish to thank
Professor Bennett L. Gershman for his insightful advice, and my research assistant Liane
Wilson, for her help in preparing this article. I am also indebted to Professors Michelle
Simon and Leslie Garfield for their support and encouragement.
'See, e.g., Domestic Violence, Should Victims Be Forced to Testify Against Their
Will?, 82 ABA Journal 26 (May 1996); Colleen O'Connor, The Moons: A Case of Spousal
Immunity on Trial, Buffalo News, Mar. 18, 1996, at A7. The issue of the spousal immunity
doctrine, which prevents spouses from being forced to testify against each other, is beyond this
article's scope; for discussion of the doctrine, see Cheryl Hanna, No Right to Choose: Mandated
Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849 (1996);
Malinda L. Seymore, Isn't It a Crime: Feminist Perspectives on Spousal Immunity and Spousal
Violence, 90 Nw. U. L. Rev. 1032 (1996); Debbie S. Holmes, Marital Privileges in the Criminal
Context: The Need for a Victim Spouse Exception in Texas Rule of Criminal Evidence 504, 28
Hous. L. Rev. 1095 (1991).
2 The prosecution had presented considerable independent evidence to support the
charges against Moon. Given this evidence, at least one commentator has questioned whether
it was even necessary for the prosecutor to call Mrs. Moon. See Hanna, supra note 1, at 1906-
07.
Columbia Journal of Gender and Law
Mandatory arrest laws and no-drop policies have greatly increased the number
of batterers being prosecuted.3 Unlike conventional cases, however, where
prosecutors rely on the cooperation and participation of complaining witnesses
to obtain convictions, in domestic violence cases prosecutors are often faced
with exceptional challenges. Such challenges include victims who refuse to
testify, who recant previous statements, or whose credibility is attacked by
defense questions on why they remained in a battering relationship. To
explain the behavior of such victims, prosecutors rely increasingly on expert
testimony on battering and its effects. While the use of expert testimony on
battering and its effects has been widely used by women claiming that they
have killed their abusers in self-defense, it is only in the last few years that
prosecutors have made significant efforts to use experts when prosecuting
batterers.6
Until 1990, appellate courts in only a handful of jurisdictions had
considered whether prosecutors may use expert testimony on battering and its
3 See notes 23-24 and accompanying text infra. See generally Hanna, supra note 1,
at 1863.
4 1 prefer the phrase "battering and its effects" rather than "battered woman's
syndrome." See Janet Parrish, Trend Analysis: Expert Testimony on Battering and its Effects
in Criminal Cases, 11 Wis. Women's L.J. 75, 82 (1996). The latter term has been the subject
of criticism by a number of scholars as evocative of stereotypes of women who have been
abused as maladjusted or disturbed. See note 11 infra; see generally Alana Bowman, A Matter
of Justice: Overcoming Juror Bias in Prosecutions of Batterers Through Expert Witness
Testimony of the Common Experiences of Battered Women, 2 S. Cal. Rev. L. & Women's Stud.
219, 226 n.31 (1992). Other commentators criticize the phrase "battered woman's syndrome"
as inadequate to encompass the broad range of reactions to battering. See Malcolm Gordon,
Validity of "Battered Woman Syndrome" in Criminal Cases Involving Battered Women (visited
March 7, 1997) . The great majority
of the cases and commentators, however, use the terminology "battered woman's syndrome";
therefore, this article uses both phrases.
s See generally Holly Maguigan, Battered Women and Self-Defense: Myths and
Misconceptions in Current Reform Legislation, 140 U. Pa. L. Rev. 379 (1991); David L.
Faigman & Amy J. Wright, The Battered Woman Syndrome in the Age of Science, 39 Ariz. L.
Rev. 67 (1997).
6 See generally Parrish, supra note 4; Myrna S. Raeder, Proving the Case: Battered
Woman and Batterer Syndrome: The Double-Edged Sword: Admissibility of Battered Woman
Syndrome By and Against Batterers in Cases Implicating Domestic Violence, 67 U. Colo. L.
Rev. 789 (1996); Joan M. Schroeder, Using Battered Woman Syndrome Evidence in the
Prosecution of a Batterer, 76 Iowa L. Rev. 553 (1991).
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Prosecutorial Use of Expert Testimony
effects in a domestic violence prosecution. Between 1991 and 1997,
however, appellate courts in at least thirteen more jurisdictions ruled on the
admissibility of expert testimony to explain a battering victim's puzzling
behavior at or before trial.8 All of those jurisdictions, except Ohio, approved
of prosecutorial use of expert testimony. 9
Prosecutors have called experts to educate the jury on a victim's
unusual behavior such as delay in reporting the violence, or why she would
remain in the abusive relationship. Judicial acceptance of a prosecutor's use
of expert testimony in the above settings raises the question of whether a
prosecutor may use an expert to explain the victim's outright refusal to
testify.' ° To date, only one reported case has addressed this issue;" however,
7 See Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992) (dicta only); Pruitt v.
State, 296 S.E.2d 795 (Ga. Ct. App. 1982); State v. Baker, 424 A.2d 171 (N.H. 1980); State v.
Frost, 577 A.2d 1282 (N.J. Super. Ct. App. Div. 1990); State v. Ciskie, 751 P.2d 1165 (Wash.
1988). The precedential value of some of the earliest cases is doubtful. For a discussion of
Pruitt, see note 82 and accompanying text infra. Baker's relevancy is also doubtful because
there the prosecution offered the testimony to explain the defendant's behavior, not the victim's
conduct.
8See Arcoren v. United States, 929 F.2d 1235 (8th Cir. 1991); People v. Humphrey,
921 P.2d 1 (Cal. 1996); People v. Morgan, 68 Cal. Rptr. 2d 772 (Cal. Ct. App. 1997); State v.
Borelli, 629 A.2d 1105 (Conn. 1993); State v. Clark, 926 P.2d 194 (Haw. 1996), approving
State v. Cababag, 850 P.2d 716 (Haw. Ct. App. 1993); Isaacs v. State, 659 N.E.2d 1036 (Ind.
1995); Carnahan v. State, 681 N.E.2d 1164 (Ind. Ct. App. 1997); State v. Griffin, 564 N.W.2d
370 (Iowa 1997); Commonwealth v. Goetzendanner, 679 N.E.2d 240 (Mass. App. Ct. 1997);
People v. Christel, 537 N.W.2d 194 (Mich. 1995); State v. Searles, 680 A.2d 612 (N.H. 1996);
People v. Hryckewicz, 634 N.Y.S.2d 297 (N.Y. App. Div. 1995); State v. Pargeon, 582 N.E.2d
665 (Ohio Ct. App. 1991) (ruling that expert testimony is only admissible for self-defense
purposes); State v. Bednarz, 507 N.W.2d 168 (Wis. Ct. App. 1993); Barnes v. State, 858 P.2d
522 (Wyo. 1993).
Lower courts in some jurisdictions have also allowed expert testimony in the
prosecution of batterers. See, e.g., People v. Ellis, 650 N.Y.S.2d 503 (N.Y.Sup. Ct. 1996).
9 See id. But see State v. Pargeon, 582 N.E.2d at 667.
toIdeally, a complainant will cooperate with prosecutors and participate in a batterer's
trial. Accordingly, a number of jurisdictions have devised special domestic violence units
within the prosecutor's office to encourage voluntary participation. See Kathleen Waits, The
Criminal Justice System's Response to Battering: Understanding The Problem, Forging The
Solutions, 60 Wash. L. Rev. 267 (1985); Elena Saltzman, The Quincy District Court Domestic
Violence Prevention Program: A Model Legal Framework for Domestic Violence Intervention,
74 B.U. L. Rev. 329 (1994). Additionally, some jurisdictions have policies to compel a
reluctant complainant to appear through subpoena and risk of contempt charges and possible
incarceration. See, e.g., Hanna, supra note 1, at 1865-66; Waits, supra at 323. Much
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Columbia Journal of Gender and Law
the explosive growth in the number of batterers being prosecuted mandates
that courts and commentators explore whether expert testimony is appropriate
to explain the complainant's absence. The issue of prosecutorial use of expert
testimony has received limited scholarly attention. Commentators who have
addressed the question "tend to be fairly cautious" in their approach.1 2 Most
would allow generalized information about abuse, but only following a
defense attack on credibility. 3 However, the authors of one article have
suggested that any prosecutorial use of expert testimony on battering and its
effects is too prejudicial. 4
This article discusses the use of expert testimony in prosecuting those
charged with domestic abuse. Part I provides a background on the need and
nature of expert testimony in domestic violence cases and the requirements for
the admission of such expert testimony. It traces the development of the role
of expert testimony in domestic violence cases from its initial exclusive use
as a defense tool to support self-defense claims to its present use by
prosecutors to explain a complainant's recantation or other puzzling behavior.
Part II discusses the appellate cases that have addressed the admissibility and
scope of expert testimony offered by the prosecution in domestic abuse cases.
It then analyzes the proper uses of the expert testimony, including when the
State may introduce the testimony and what guidelines courts should follow
to ensure that its probative value outweighs any prejudicial effect on the
defendant.
Part El applies the existing case law to the uncharted issue of whether
the courts should allow expert testimony to explain a complainant's outright
controversy surrounds the issue of compelled appearance, which is beyond the scope of this
article. Instead, this article operates from the assumption that regardless of the means
prosecutors have employed to gain the complainant's presence, she is absent from trial.
11 See Pruitt v. State, 296 S.E.2d 795 (Ga. Ct. App. 1982); see note 82 and
accompanying text infra.
12 See Raeder, supra note 6, at 801; see generally Schroeder, supra note 6; Faigman
& Wright, supra note 5; Bowman, supra note 4; Hanna, supra note 1.
13 See Raeder, supra note 6, at 801; Schroeder, supra note 6; Bowman, supra note
4.
1
4 See Faigman & Wright, supra note 5, at 96-98. Faigman and Wright argue that no
research exists to support the conclusion that a manifestation of battering is an increased chance
of recantation. Anecdotal evidence does, however, support this claim. See Raeder, supra note
6, at 807; Mary Ann Dutton, Understanding Women's Responses to Domestic Violence: A
Redefinition of Battered Woman's Syndrome, 21 Hofstra L. Rev. 1191, 1202 (1993).
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Prosecutorial Use of Expert Testimony
refusal to testify. It explains that law enforcement needs to change the
prototype of a domestic abuse prosecution from being victim-propelled to one
where sufficient independent evidence of the crime is gathered to enable
prosecutors to proceed without the victim's cooperation or participation.
Concomitant with this shift in focus, prosecutors, such as those in the Moon
case, should view expert testimony as an integral component of a victimless
prosecution. Part III explains that courts should allow expert testimony to
explain the characteristics of battered women to help the jury properly assess
the state's evidence in light of the complainant's absence. By limiting the
expert to explaining general aspects of battering and its effects, rather than
addressing the particular victim or specific acts of violence, the courts will
safeguard the defendant against undue prejudice.
Over time, the propriety of defense use of expert testimony has been
unanimously accepted by the courts. The same judicial acceptance is
developing for prosecutorial use of expert testimony on battering. The
relevance of the expert testimony is identical in both situations: It aids the
jury in assessing the evidence by explaining the effect of battering on the
witness. This article concludes that the developing trend of prosecutorial use
of expert testimony is an appropriate and necessary tool in successfully
prosecuting domestic violence cases.
PART I-BACKGROUND ON THE ADMISSIBILITY OF EXPERT
TESTIMONY ON THE EFFECTS OF BATTERING
A. Psychological Effects of Battering and Its Impact on Prosecutions
A brief description of the psychological manifestations of battering
and its effects is necessary to highlight the importance of expert testimony as
a prosecution tool. Dr. Lenore Walker, widely recognized as the first person
to identify the battered woman's syndrome, describes it as "the cluster of
psychological sequela from living in a violent relationship" that women
develop.'5 As promulgated by Dr. Walker, the syndrome is caused by a three-
phase cycle of violence-tension building, confrontation, and contrition.' 6
The cycle of violence may leave its victims with feelings of learned
'5 Lenore E. Walker, The Battered Woman Syndrome, xi, 1 (1984).
16 See id. at 95; Lenore E. Walker, Battered Woman 55-70 (1979).
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Columbia Journal of Gender and Law
helplessness, 7 low self-esteem, depression, minimization techniques," self-
isolation, and passivity.
These psychological reactions may manifest themselves in behavior
that might appear baffling and even frustrating to the average person. The
refusal to leave the relationship, the unwillingness to pursue legal action
against the batterer, or the inability to protect one's children from abuse may
each stem from the psychological effects of being battered. Many women also
stay with their batterers because of legitimate fears of retaliation and lack of
viable alternatives. 9
A state's attempt to prosecute a batterer may be undermined by the
victim's delay in seeking police intervention, her refusal to cooperate with
prosecutors, her recantation of statements implicating the battered for her
injuries, or her remaining in the abusive relationship. 0 Many prosecutors
17 "Learned helplessness" is the cornerstone of the syndrome. It is derived from
animal studies in which dogs were subjected to electric shocks and later were unable to take
advantage of readily available escape opportunities. Walker, Battered Woman, supra note 16,
at 47-49. According to Dr. Walker, the victim, after repeated beatings, begins to believe that
she has no control over the violence, and she loses the ability to escape, even when viable means
to escape exist. Id. Learned helplessness may help to explain why a battered woman remains
with the batterer. See Waits, supra note 10, at 282-83; Dutton, supra note 14, at 1197 & n.33.
Walker's theory has not been free from criticism. See Raeder, supra note 6, at 796.
Some commentators prefer to remove the stigma of the label, preferring to refer to the woman's
reaction as one of survival. See Raeder, supra note 6, at 796 n.3 1. Others have questioned the
validity of Walker's findings on a number of grounds. Commentators have criticized the nature
of the sample, the lack of a control group, the methodology of the interviews, and the lack of
support in the data for the conclusions Walker drew. See Robert F. Schoop et al., Battered
Woman Syndrome, Expert Testimony, and the Distinction between Justification and Excuse,
1994 U. 11. L. Rev. 45, 54-56 (1994). Notwithstanding such criticism, Walker's theory has
been vitally instrumental in changing judicial and public perceptions about domestic violence.
At least one commentator has noted that "there is massive anecdotal evidence generally
confirming the syndrome." Raeder, supra note 6, at 797.
18 Typically, a battering victim minimizes the severity of the attack and her injuries.
Walker, Battered Woman, supra note 16, at 63; see also Waits, supra note 10, at 293.
19 See James Martin Truss, The Subiection of Women... Still: Unfulfilled Promises
of Protection for Women Victims of Domestic Violence, 26 St. Mary's L.J. 1149, 1172-73
(1995); Diane Patton, "He Never Hit Me"--The Need for Expert Testimony in Domestic
Violence Cases, 30 Ariz. Att'y 10 (Jan. 1994).
20 See generally Chief Judge A.M. "Sandy" Keith, Domestic Violence and the Court
System, Remarks at the Jurist-in Residence Program at Hamline University School of Law (Apr.
11, 1991), in 15 Hamline L. Rev. 105 (1991).
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have commented about a victim's lack of cooperation."' Indeed, historically,
law enforcement officials have used the lack of victim cooperation as an
excuse for their lax response to domestic violence.22 The official response to
domestic violence cases has been dramatically altered by mandatory arrest
laws that limit law enforcement's discretion in making arrests 3 and no-drop
policies that mandate prosecution of domestic violence cases regardless of the
victim's cooperation. 4 However, the same misapprehension that previously
had colored law enforcement's ability to respond to a victim's plight most
likely exists in the minds of the jurors assessing charges brought against an
alleged batterer. Expert testimony on battering and its effects is necessary to
educate the jurors. The admissibility and scope of the expert testimony is
discussed in the following sub-section.
21 See Waits, supra note 10, at 311-12.
22 See Waits, supra note 10, at 311-12.
23 Mandatory arrest policies evolved as a response to decades, perhaps centuries, of
non-intervention by law enforcement toward domestic disputes. See generally, Waits, supra
note 10, at 310-16 (detailing the historically inadequate police response to domestic violence).
In the 1960s, mediation of domestic violence disputes became the police norm. See generally
Developments in the Law-Legal Responses to Domestic Violence, 106 Harv. L. Rev. 1498
(1993). Mediation proved to be ineffective in addressing domestic violence because the police
viewed both the abuser and the victim as similarly situated, and treated the incident as a family
dispute rather than a criminal offense. See generally Marion Wanless, Mandatory Arrest: A
Step Toward Eradicating Domestic Violence, But Is It Enough?, 1996 U. Ill. L. Rev. 533. By
the mid-1980s, following the urging of domestic violence advocacy groups and the imposition
of large civil damage awards against police departments for failing to intervene, see Thurman
v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984), the United States Attorney General
recommended arrest as the appropriate response to domestic incidents. See Hanna, supra note
1, at 1859. Since then, every state has adopted some form of mandatory arrest rules. Typically,
such rules require an arrest when the officer has probable cause to believe a misdemeanor has
been committed. See generally, Hanna, supra note 1, at 1859-60; Wanless, supra.
24 The development of no-drop policies were a natural outgrowth of mandatory arrest
laws. Parallel to the historical police reluctance to intervene in a domestic disputes, prosecutors
also were mired in a hands-off approach. See Hanna, supra note 1, at 1859-60; Waits, supra
note 10, at 299-302. As more arrests were made, attention was shifted to the prosecutor's role
in stemming domestic violence. Many offices have adopted no-drop policies which range from
checking a prosecutor's discretion to dismiss a domestic violence case, to providing guidelines
on prosecuting such cases with or without the victim's cooperation. See generally Angela
Corsilles, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to
Action or Dangerous Solution?, 63 Fordham L. Rev. 853 (1994); Hanna, supra note 1
(describing the various types of no-drop policies).
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B. General Admissibility Requirements of Expert Testimony
Domestic violence crimes are predominantly governed by state law.25
However, since all jurisdictions have requirements for the admissibility of
expert testimony identical with or similar to the Federal Rules of Evidence,
this Article uses the Federal Rules as a prototype. The first consideration for
the admission of any evidence is whether it is relevant.26 Additionally,
Federal Rule of Evidence 702 sets forth the basic rule of admissibility of
expert testimony:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise. 27
The generally accepted understanding of Rule 702's requirements is
that expert's testimony should aid the jury's understanding of the evidence but
that the topic need not be completely outside the general understanding of the
25 But see Violence Against Women Act of 1994, 42 U.S.C. § 10410 (1997)
(federalizes acts of domestic violence under certain circumstances, such as traveling across state
lines with the intent to inflict bodily harm).
26 Fed. R. Evid. 401. The rule defines relevant evidence as "evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence." Id. Thus,
evidence is relevant if it is material and probative to the issues in dispute. According to
McCormick, materiality examines the relationship between the propositions for which the
evidence is offered an the issues in the case. Probative value is the tendency for of the evidence
to establish the proposition for which it is offered. See 1 McCormick on Evidence § 185 (John
W. Strong ed., 4th ed. 1992).
27 Fed. R. Evid. 702. Rule 702's language has been adopted in whole or in substantial
part by at least forty states. See Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal
Evidence § 702[06] (Joseph M. McLaughlin ed., 2d ed. 1998).
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jury,2" that the testimony be based on scientifically valid methodology,2 9 and
that the expert be qualified.30 Additionally, the trial court must decide
whether the evidence's probative value outweighs any prejudicial impact.31
C. Defense Use of Expert Testimony on Battering and Its Effects
Defendants initiated the use of expert testimony on battering and its
effects. The typical case involved a woman who was charged with killing her
abusive mate and who raised a claim of self-defense. Courts have ruled that
because a battered woman's behavior and perceptions are beyond the ken of
a typical juror's understanding, expert testimony is needed to assist the jury
in determining whether the defendant acted in self-defense.3 2
. Notwithstanding the courts' present acceptance of testimony on
battered woman's syndrome, initial court reaction to a defense attempt to
28 Rule 702 does not require that the subject of the expert testimony be completely
outside the comprehension of the average juror. The federal rule is based on a "helpful"
standard. See Weinstein & Berger, supra note 27, § 702[02].
29 See Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993). Daubert
rejected the seventy-year-old Frye test of admissibility of expert testimony. See Frye v. United
States 293 F. 1013 (D.C. Cir. 1923). Under Frye, expert testimony was admissible only if
based on scientific technique that was "generally accepted" as reliable in the scientific
community. Id. at 1014. The Daubert Court removed the requirement of"general acceptance."
According to the Daubert Court, the test for admissibility is whether there is a "valid scientific
connection to the pertinent inquiry." 509 U.S. 579, 580. Courts and commentators have
generally regarded Daubert as liberalizing the admissibility of expert testimony. See, e.g.,
United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994); Michael H. Gottesman, Should
Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, 15
Cardozo L. Rev. 1837 (1994).
30 See Weinstein & Berger, supra note 27, § 702[04].
31 Fed. R. Evid. 403 provides that "[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." See generally Weinstein & Berger, supra note
27, § 403.
32 Typically, the expert will testify as to the battered woman's heightened perception
of danger that may make her reasonably fearful of an imminent threat of great bodily harm in
situations where an average juror may not perceive the threat. See, e.g., State v. Leidholm, 334
N.W.2d 811 (N.D. 1983); State v. Kelly, 478 A.2d 364 (N.J. 1984).
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introduce expert testimony on the battered woman's syndrome was mixed.3 3
Since defense attacks on a prosecutor's use of experts parallel the earlier
efforts to introduce battered woman's syndrome testimony by the defense, a
review of the history of the syndrome's role in criminal cases is helpful.
One of the earliest attempts to use battered woman's syndrome as a
defense arose in State v. Kelly. 34 There, a woman was indicted for murder
after she killed her husband during an altercation. The defendant claimed that
she acted in self-defense, although the State strongly disputed this
contention. 35 The trial court denied her attempt to introduce expert testimony
on the battered woman's syndrome to explain her state of mind and to bolster
her self-defense claim. The defendant was convicted of reckless
manslaughter.
The Supreme Court of New Jersey reversed and remanded for a new
trial based on the refusal to allow the expert testimony. Noting first that the
initial question in deciding the admissibility of expert testimony is its
relevance, the court reasoned that the defendant's credibility was the "critical
issue" in the case. Therefore, the expert testimony was relevant in assessing
the honesty of her belief that she was in imminent danger of death at the time
she killed her spouse.36 The court stated that the expert could have explained
to the jury why the defendant had remained with her spouse even though he
had repeatedly abused her in the past. As the court noted, "Whether raised by
the prosecutor as a factual issue or not, our own common knowledge tells us
that most of us, including the ordinary juror, would ask himself or herself just
such a question. 37
The Kelly court also explained that the expert testimony, in educating
the jury about the battered woman's syndrome, would help the jury assess the
33 Compare State v. Thomas, 423 N.E.2d 137 (Ohio 1981) (inadmissible) with State
v. Kelly, 478 A.2d 364 (N.J. 1984); Ibn-Tamas v. United States, 407 A.2d 626 (D.C. Cir. 1979)
(admissible). Some courts found that the syndrome was not based on scientifically recognized
data. See generally Laurie Kratky Dore, Downward Adiustment and the Slippery Slope: The
Use of Duress in Defense of Battered Offenders, 56 Ohio St. L.J. 665, 684 n.77 (1995). Other
courts ruled against its admissibility, reasoning that the expert invaded the jury's province on
judging credibility issues. See Raeder, supra note 6, at 805.
34 478 A.2d 364 (N.J. 1984).
35S ee id. at 368.
36 See id. at 375.
37Id. at 377.
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reasonableness of the defendant's fear of imminent danger, a crucial element
of her self-defense claim. 38
Following Kelly, courts in every jurisdiction have approved of the
admissibility of expert testimony on battered woman's syndrome when raised
to support a self-defense claim. 39 The crucial factor in the admissibility of the
expert testimony was the courts' findings that the battering relationship and
its effects on the victim of abuse were outside the understanding of the
average juror.40 Following the original use of expert testimony to support a
classic self-defense claim where the defendant has killed an abusive mate in
the course of a confrontation, defendants have sought to admit expert
testimony on battered woman's syndrome in a variety of less traditional cases.
To date, courts have allowed the expert testimony in cases where a defendant
claims self-defense for a non-confrontational killing-the "sleeping spouse"
scenario," where a defendant claims duress based on battered woman's
syndrome as a defense to robbery, z and where a woman is a respondent in a
civil proceeding seeking to terminate her parental rights based on her failure
to protect her children from an abusive mate.4 3
As this section has demonstrated, the behavior manifested by many
victims of domestic violence has generated the need for expert testimony to
educate jurors on battering and its effects. The expert can explain that a
victim of abuse may remain in an abusive relationship, recant charges against
an abuser, or refuse to assist in the prosecution of a batterer because of a
variety of reasons including psychological manifestations of abuse, fear of
retaliation, or lack of viable housing and financial alternatives. Although the
need for expert testimony was first recognized in cases where a battered
3 8 On remand, both sides presented experts; the prosecution experts testified that Mrs.
Kelly did not meet the criteria of a battered woman. She was convicted of murder. See
Elizabeth Schneider, Describing and Changing: Women's Self-Defense Work and the Problem
of Expert Testimony on Battering, 9 Women's Rts. L. Rep. 195, 211-12 (1986).
39 See generally Parrish, supra note 4.
40 See, e.g., lbn-Tamas v. United States, 407 A.2d 626 (D.C. Cir. 1979); Smith v.
State, 277 S.E.2d 678 (Ga. 1981); State v. Hennum, 441 N.W.2d 793 (Minn. 1989).
41 See, e.g., State v. Stewart, 763 P.2d 572 (Kan. 1988); State v. Leidholm, 334 N.W.
2d 811 (N.D. 1983); cf. State v. Allery, 682 P.2d 312 (Wash. 1984) (spouse lying on couch with
back turned to defendant when she killed him).
4 2 See, e.g., People v. Romero, 13 Cal. Rptr. 2d 332 (Cal. Ct. App. 1992), vacated on
other grounds, 883 P.2d 388 (Cal. 1994).
43 See, e.g., In re Matter of Glenn G., 587 N.Y.S.2d 464 (N.Y. Fam. Ct. 1992).
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woman killed her attacker in self-defense, its use by prosecutors is predicated
on identical goals-that the jury accurately assess the evidence before it.
PART I1-PROSECUTORIAL USE OF EXPERT TESTIMONY
A. Development of the Case Law
Pivotal in the early cases to evoke the battered woman's syndrome
was the defense use of the expert testimony. In recent years, however, with
the tremendous increase in the number of domestic violence arrests and
prosecutions, the prosecution has sought to use expert testimony on battering
and its effects. With its holding in State v. Ciskie," the Supreme Court of
Washington became the first state appellate court to affirm the prosecutorial
use of battered woman's syndrome to explain a battering victim's behavior.
In Ciskie, the defendant was charged with four counts of rape over a
23-month period of a woman with whom he had an abusive relationship. The
defense claimed that the sexual encounters were consensual, as evidenced by
the victim's failure to report them, or to break off the relationship. To rebut
this attack on the victim's credibility, the prosecution offered expert testimony
on battered woman's syndrome as part of its case-in-chief. In upholding the
admission of the testimony, the Washington Supreme Court relied heavily on
its earlier decisions upholding the admission of expert testimony on battered
woman's syndrome when offered by the defendant as part of a self-defense
claim. The court reasoned that the key to the admissibility of expert testimony
under Washington's evidence rule 45 was whether it would be helpful to the
trier of facts. The court noted that without the help of expert testimony, an
average juror would not understand why the victim would stay in an abusive
relationship. It further reasoned that the testimony was not unduly prejudicial
to the defendant because the expert gave her opinion only to a hypothetical
situation, and because the trial court correctly refused to allow the expert to
opine as to whether the victim was in fact raped.
Following Ciskie, courts have further ruled on appropriate
prosecutorial use of expert testimony.46 The courts are most receptive to
allowing expert testimony when the victim recants at trial earlier statements
44751 P.2d 1165 (Wash. 1988).
45 Wash. R. Evid. 702.
"See note 8 supra.
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Prosecutorial Use of Expert Testimony
implicating the defendant.47 For example, in State v. Stringer,48 the Supreme
Court of Montana generally endorsed prosecutorial use of expert testimony.
There, the defendant was convicted of assault and aggravating kidnapping
after he broke into a home in which his ex-wife was visiting, forced her to
leave at gunpoint, and assaulted her.49 At trial, the defendant's ex-wife
recanted her earlier statements to the police implicating the defendant. Over
the defendant's objection that it was improper bolstering, 50 the trial court
allowed the State to call an expert on battered woman's syndrome to explain
the syndrome and why a complaining witness may recant earlier statements
against her abuser.
On appeal, the Supreme Court of Montana ruled that prosecution may
use expert testimony on battered woman's syndrome to explain
47 See, e.g., Arcoren v. United States, 929 F.2d. 1235 (8th Cir. 1990); State v. Borelli,
629 A.2d 1105 (Conn. 1993); State v. Cababag, 850 P.2d 716 (Haw. Ct. App. 1993); State v.
Bednarz, 507 N.W. 2d 168 (Wis. Ct. App. 1993). The courts in at least one jurisdiction have
refused to allow expert testimony on battered woman's syndrome to be used for any purpose
other than as part of a self-defense claim. See State v. Pargeon, 582 N.E.2d 665 (Ohio Ct. App.
1991) (interpreting its evidence rule as limiting battered woman's syndrome to self-defense
claims).
48 897 P.2d 1063 (Mont. 1995).
49 See id. at 1065.
50 The term "bolstering" generally means an impermissible attempt to enhance the
credibility of a witness. See Bennett Gershman, Trial Error and Misconduct § 5-1(a), at 301
(1997). Accordingly, courts customarily stress that since the jury has the exclusive role of
assessing credibility, it is improper for a witness to comment on the credibility of other
witnesses. See, e.g., United States v. Shay, 57 F.3d 126 (1st Cir. 1995); United States v.
Richter, 826 F.2d 206 (2d Cir. 1987); State v. Lindsay, 720 P.2d 620 (Ariz. 1986); State v.
Friedrich, 398 N.W.2d 763 (Wis. 1987).
The scope of expert testimony is circumscribed by these limitations. The expert may
not invade the jury's province by opining on a witness's truthfulness or whether he or she
believes the witness. See, e.g., State v. Oliver, 372 S.E.2d 256 (Ga. Ct. App. 1988); State v.
LQ., 617 A.2d 1196 (N.J. 1993); State v. Raymond, 540 N.W. 2d 407 (S.D. 1995).
Additionally, the expert may not give an opinion that the witness has been victimized by the
defendant. See, e.g., State v. Griffin, 564 N.W.2d 370 (Iowa 1997); Commonwealth v.
Goetzendanner, 679 N.E.2d 240 (Mass. App. Ct. 1997); State v. Ellis, 656 A.2d 25 (N.J. Super.
Ct. App. Div. 1995).
Courts have held that it is not improper bolstering for an expert to explain behavior
patterns of persons in the complainant's class so as to aid the jury in assessing the evidence
before it. See Commonwealth v. Goetzendanner, 679 N.E.2d at 244; State v. Griffin, 564
N.W.2d at 374-75. See generally Gershman, supra § 5-4(i), at 334-36.
1998]
Columbia Journal of Gender and Law
inconsistencies in a witness's testimony. The court stressed that this was not
impermissible bolstering of the victim's testimony since the witness had
recanted. Moreover, the court explained that the expert could testify only
generally on battered woman's syndrome to explain why a battered woman
might recant, not on whether the particular witness was truthful.5
In addition to using experts to explain a recantation, the State
commonly seeks to use expert testimony to rehabilitate a witness after the
defense has attacked her credibility by pointing out behavior inconsistent with
being abused, such as remaining with the attacker or failing to report the
abuse.52 In a case of first impression for its jurisdiction, the Appeals Court of
Massachusetts in Commonwealth v. Goetzendanner 3 ruled that expert
testimony on battering was appropriate to help explain a victim's conduct.
The defendant in Goetzendanner was charged with kidnapping, raping, and
assaulting a woman with whom he had had a four-month relationship.
According to the complainant, their relationship was marked with violence
that culminated in the charged acts. On cross-examination, defense counsel
attacked the witness's credibility by pointing to her "vacillating behavior
toward the defendant."54 The prosecution then called an expert witness to
educate the jury about the dynamics of domestic violence. In upholding the
admission of such testimony, the court noted that evidence of battered
woman's syndrome was admissible to enlighten the jury about behavioral and
emotional characteristics common to battering victims.55 It cautioned,
however, that the expert could not offer an opinion as to whether the
complainant was an abused woman.56
51 The Stringe court approved of prosecutorial use of expert testimony on battering
and its effects as a general concept. See 897 P.2d at 1068-69. It ruled, however, that the State
failed to lay an appropriate foundation for its admissibility because there was no evidence that
the ex-wife was a battered woman. See id. at 1069-70.
52 See, e.g., State v. Griffin, 564 N.W.2d 370 (Iowa 1997); Commonwealth v.
Goetzendanner, 679 N.E.2d 240 (Mass. App. Ct. 1997); State v. Ciskie, 751 P.2d 1165 (Wash.
1988); Arcoren v. United States, 929 F.2d 1235 (8th Cir. 1991); In the Matter of Victoria C.,
630 N.Y.S.2d 470 (N.Y. Fain. Ct. 1995).
5' 679 N.E.2d 240 (Mass. App. Ct. 1997).
AId. at 243.
51 See id. at 244.
See id. at 245.
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Pr&secutorial Use of Expert Testimony
Consistent with the reasoning employed by the Goetzendanner court,
the Supreme Court of Michigan in People v. Christe 57 ruled that the lower
court erred in admitting expert testimony on battering and its effect because
the victim did not exhibit any puzzling or inconsistent behavior.58 According
to the court, the lack of incongruous behavior obviated the need for expert
testimony to aid the jury in assessing the evidence before it.
Some courts have allowed the prosecution to offer expert opinion
evidence on battering and its effects without a recantation or a specific
defense attack on credibility if the complainant exhibits anomalous behavior
at trial. 59 In State v. Searles, 6° the defendant appealed his conviction on
assault charges on the ground that the trial court improperly permitted expert
testimony on the dynamics of domestic violence when he never attacked the
witness's credibility. In rejecting the defendant's argument, the Supreme
Court of New Hampshire ruled that the need for expert testimony was
triggered by a victim's puzzling actions, regardless of any defense attack on
her credibility. Relying on its earlier ruling in a child sexual abuse syndrome
case, the court noted that "expert testimony may be offered to preempt
negative inferences based upon the victim's actions. ' 61
17 537 N.W.2d 194 (Mich. 1995).
58 Although the court ruled that the lower court erred in admitting the expert
testimony, it ruled that the error was harmless because of the extensive independent evidence
of sexual assault. See id. at 197.
Whether the court ruled correctly that there was no need for the expert testimony is
questionable. The crux of the defense was that the sexual acts were consensual. Accordingly,
the defense vigorously attacked the complainant's credibility by pointing to her continued
relationship with the defendant following the alleged attack. See id. at 198. Other courts have
held that such seemingly anomalous behavior is sufficient to warrant the introduction of expert
testimony. See, e.g., State v. Ciskie, 751 P.2d 1165 (Wash. 1988).
59 See State v. Frost, 577 A.2d 1282 (N.J. Super. Ct. App. Div. 1990); State v. Searles,
680 A.2d 612 (N.H. 1996); State v. Barnes, 858 P.2d 522 (Wyo. 1993).
60 680 A.2d 612 (N.H. 1996).
61 Id. at 614 (citing State v. Cressey, 628 A.2d 696 (N.H. 1993)). In addition, the
court rejected the defendant's claim that the testimony was unduly prejudicial because it implied
that he was the batterer. The court noted that the trial court limited the expert to testifying about
general characteristics of domestic violence victims and not about the particular individuals.
See id.
Other courts have ruled that the prosecution may offer testimony that supports a
witness's credibility regardless of any defense attack. In State v. Frost, 577 A.2d at 1287, the
court allowed expert testimony on battered woman's syndrome as part of the State's case-in-
1998l
Columbia Journal of Gender and Law
In some cases, the prosecution has sought to offer the expert testimony to
prove the victim was, in fact, battered.62 Most courts have refused to allow
this use of expert testimony, finding that its probative value is outweighed by
chief in the trial of a batterer charged with sexual assault. The court relied on New Jersey Rule
of Evidence 20, which specifies that "for the purpose of impairing or supvorting the credibility
of a witness, any party ... may ... introduce extrinsic evidence relevant upon the issue of
credibility .... " 577 A.2d at 1287 (emphasis added). The Frost court further allowed the
expert to opine that the complainant was in fact a battered woman. See id. at 1286-88.
One commentator has suggested that Frost had limited applicability to other cases
because of the unique evidentiary rule upon which its reasoning was based. See Schroeder,
supra note 6, at 575-76. However, at least one court has adopted Frost's reasoning even though
the evidence statute in that court's jurisdiction paralleled the less inclusive language in Federal
Rule of Evidence 607, which states that "the credibility of a witness may be attacked by any
party including the party calling him." See Barnes v. State, 858 P.2d 522 (Wyo. 1993). The
Barnes defendant was charged with the brutal murder of his girlfriend's five-year-old daughter.
The defendant tried to implicate his girlfriend in the child's death. The State called a police
officer to testify as to the mother's behavior, and the defendant objected on the grounds that it
improperly bolstered her credibility. The defendant also objected to the admission of the
mother's testimony as a victim's impact statement. The Wyoming Supreme Court analogized
to cases where it permitted expert testimony to educate the jury on why a rape victim may delay
in reporting the assault, and upheld the testimony in the case before it. The court reasoned that
"[a] corollary to the rule allowing a party to attack the credibility of a witness is to permit the
opposing party to bolster that credibility." 858 P.2d at 533. The court ruled that a party need
not wait for the opposing party to attack a witness's credibility before it can be bolstered, and
it allowed the mother to testify as to the impact of her child's death. See id. at 534-35.
The Barnes court appears to hold that a party may bolster the testimony of its
witnesses, in contravention of the generally prevailing rule regarding such impermissible
bolstering. See note 50 and accompanying text supra. However, the proper scope of Barnes's
ruling may be explained by examining the facts of the case.
Although the Barnes court spoke broadly about allowing a party to support its
witness's credibility even if the opposing counsel has not attacked it, in fact, the defense
"repeatedly and vigorously" attacked the mother's credibility on cross-examination. 858 P.2d
at 534. Thus, Barnes is consistent with prevailing authority that allows expert testimony to
rehabilitate a witness or to explain puzzling behavior.
62 See State v. Ciskie, 751 P.2d 1165 (Wash. 1988) (trial court specifically prohibited
such testimony).
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Prosecutorial Use of Expert Testimony
its prejudicial impact.63 Instead, the courts permit the expert to testify
generally about battering and its effects. 6'
B. Guidelines for Prosecutorial Use of Expert Testimony
As the cases described above illustrate, the courts have been most
receptive to the State's use of expert testimony when it is introduced to rebut
a defense attack on the victim's credibility or to explain a recantation.65 The
courts have pointedly rejected defense efforts to limit expert testimony on
battering and its effects to cases where a woman uses it to support a self-
defense claim, acknowledging that it "would seem anomalous to allow a
battered woman, where she is a criminal defendant, to offer this type of expert
testimony in order to help the jury understand the actions she took, yet deny
her that same opportunity when she is the complaining witness and/or victim
and her abuser is the criminal defendant." 66
A synthesis of the courts' reasoning in the cases that have allowed
expert testimony reveals that the key consideration is whether such testimony
can help explain seemingly bizarre or puzzling behavior by a witness without
undue prejudice to the defendant. With this principle as a guide, we can
articulate certain guidelines for prosecutorial use of expert testimony on
battering and its effects.
First, since it is a witness's puzzling behavior that triggers the need for
expert testimony to help the jury assess the evidence before it, its introduction
should not be dependent on a defense attack on the witness's credibility. A
number of courts have upheld trial court rulings that allowed the prosecution
to call an expert witness without requiring any defense attack on the witness's
credibility.67 These courts have ruled correctly that expert testimony that
63See, e.g., State v. Borelli, 629 A.2d 1105, 1115 (Conn. 1993); State v. Griffin, 564
N.W.2d 370 (Iowa 1997); State v. Ciskie, 751 P.2d 1165 (Wash. 1988).
64 See, e.g., State v. Borelli, 629 A.2d at 1115; State v. Griffin, 564 N.W.2d at 374-75;
State v. Ciskie, 751 P.2d at 1166-74.
65 See notes 47-53 and accompanying text supra.
66 State v. Frost, 577 A.2d at 1287.
67 See Barnes v. State, 858 P.2d 522 (Wyo. 1993); State v. Frost, 577 A.2d at 1287-
88; State v. Searles, 680 A.2d at 615; People v. Christel, 537 N..W.2d 194 (Mich. 1995). See
also notes 59-61 and accompanying text supra.
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Columbia Journal of Gender and Law
explains general characteristics to offset common misconceptions is
permissible.68
Concomitantly, the timing of the introduction of the expert testimony
is not, by itself, critical. In many instances, it will be the defense that points
to puzzling behavior, such as the failure to report an abuse incident, or the
failure to leave the relationship. 69 The State will then seek to admit the expert
as a rebuttal witness, or as part of its case-in-chief following the defendant's
cross-examination of the complainant. In other instances, however, the
defense may not attack the witness's testimony. The State still should be
allowed to present expert testimony as part of its case-in-chief if it aids the
jury in its understanding of the evidence.
Some courts and commentators have insisted, however, that courts
admit expert testimony only for rebuttal or rehabilitation after a defense attack
and not as part of the State's case-in-chief.70 They reason that to allow it in
other circumstances would be improper bolstering.7' This position is
unnecessarily narrow and its shortcomings are most apparent when applied to
a complainant who recants earlier charges against the defendant. In such an
instance, the defendant would not want to attack the complainant's testimony.
This should not bar the prosecution from offering expert testimony to explain
the incongruous behavior. The rules of evidence governing expert testimony
are grounded in the usefulness of the expert testimony,7 not on an inquiry on
the evidentiary vehicle used for its admission. A jury will necessarily be
perplexed by a victim's recantation unless it is educated on battering and its
effects.
The genesis of the rebuttal or rehabilitation requirement appears to be
court rulings on the use of expert testimony in the related areas of child sexual
abuse cases and rape trauma syndrome cases. In many of these cases, the
courts have limited the introduction of expert testimony to rebuttal or
68 See generally Gershman, supra note 50.
69 See note 52 and accompanying text supra.
70 See People v. Christel, 537 N.W.2d at 205 (Cavanagh, J., dissenting) (expert
testimony should be limited "to the narrow purpose" of rebuttal); Schroeder, supra note 6, at
573.
71 See, e.g., Schroeder, supra note 6, at 573.
72 See notes 26-28 and accompanying text supra.
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Prosecutorial Use of Expert Testimony
rehabilitation.73 Their reasoning is that unless the expert testimony is limited
to rehabilitating the witness or rebutting a defense attack on the victim's
credibility, the expert testimony would constitute improper bolstering.74
Courts and commentators have pointed to the similarities between
cases involving rape victims, child sexual abuse victims, and battered
women. 75 However, some crucial differences may exist. Typically, in a rape
trauma case the defense attacks the victim's credibility by arguing that the
intercourse was consensual. Defense counsel may point to a victim's failure
to report the rape as a means of impeaching the victim's trial testimony that
she was raped. Similarly, in a child sexual abuse case, the defense may
highlight the child's delay in reporting an attack or earlier inconsistent
statements to discredit the victim's testimony that the defendant abused him
or her. In both cases, the victim testifies against the defendant at trial.76 The
73 See, e.g., People v. Bowker, 249 Cal. Rptr. 886 (Cal. Ct. App. 1988) (expert
testimony on child sexual abuse syndrome limited to rebuttal following defense attack); People
v. Bledsoe, 681 P.2d 291 (Cal. 1984) (expert testimony permissible for limited purpose of
rebutting a defense suggestion that the victim's behavior was inconsistent with being raped);
People v. Beckley, 456 N.W.2d 391 (Mich. 1990) (expert testimony on child sexual abuse
syndrome admissible only for rebuttal or rehabilitation). See generally John E.B. Myers et al.,
Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev. 1,86-92 (1989); John E.B.
Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination and
Impeachment, 18 Pac. L.J. 801, 848 (1987).
The controversy as to the timing of the admission of expert testimony on battering and
its effects also stems from early defense attacks on its admissibility in general. Courts faced
defense claims that expert testimony on battering and its effects was appropriate only when
offered by a defendant to support a self-defense claim, and not as part of a prosecutor's case-in-
chief against a batterer. See, e.g., State v. Frost, 577 A.2d at 1286-87. While most courts have
rejected this position, see note 47 and accompanying text supra, some have retained the
limitation that the prosecution may only use the expert to rebut or rehabilitate a defense attack.
See generally Raeder, supra note 6, at 801-02.
74 See generally Myers, Expert Testimony in Child Sexual Abuse Litigation, supra
note 73, at 90-92.
75 See, e.g., State v. Freeney, 637 A.2d 1088 (Conn. 1994); State v. Cababag, 850 P.2d
716 (Haw. Ct. App. 1993); State v. Griffin, 564 N.W.2d 370 (Iowa 1997); Commonwealth v.
Goetzendanner, 679 N.E. 2d 240 (Mass. App. Ct. 1997); People v. Christel, 537 N.W.2d 194
(Mich. 1995); State v. Searles, 680 A.2d 612 (N.H. 1996); State v. Ellis, 656 A.2d 25 (N.J.
Super. Ct. App. Div. 1995); State v. Bednarz, 507 N.W.2d 168 (Wis. Ct. App. 1993).
76 Experts on child sexual abuse accommodation syndrome widely cite recantation as
common behavior in abused children. See generally Roland C. Summit, The Child Sexual
Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177 (1983); Andrew Cohen, Note,
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Columbia Journal of Gender and Law
expert testimony is admitted to educate the jury that the victim's behavior in
failing to report the abuse is consistent with the behavior of rape trauma or
child sexual abuse victims. It is therefore helpful in assessing the victim's
credibility. Courts have limited the expert testimony to rehabilitation or
rebuttal because the victim's testimony is consistent with the prosecution's
case against the defendant.
In contrast, when battered women recant at trial, their testimony
supports the defendant. No opportunity to rehabilitate arises; however, this
should not prevent the admission of expert testimony, since the jury still needs
to be educated on why the victim may have recanted to properly assess the
evidence.
A second guideline for proper prosecutorial use of expert testimony
is that the expert should not be asked to testify that the witness was in fact
battered or to give any opinion as to the complainant's truthfulness. To avoid
undue prejudice to the defendant, the expert should testify only to general
characteristics of battering and its effects, and not whether the complainant
exhibits these traits. Prosecutors should also refrain from using hypotheticals
that mirror too closely the particular facts of the case at bar, because courts
have deemed this technique as merely a tactic to circumvent the prohibition
against offering expert testimony on whether the complainant was, in fact,
battered." Judges should specifically instruct the jury on the limitations of the
expert testimony and that it may not make any inferences from the expert
testimony about the specific charges at issue.7"
With these directives in place, we can turn to the issue of whether
expert testimony is appropriate when the complainant refuses to testify.
The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims,
74 Geo. L.J. 429,443-48(1985). A sampling of the cases reveals that in many instances where
recantation is the basis for the admission of expert testimony, the child has testified against the
defendant at trial, but has previously made inconsistent statements. See, e.g., Wheat v. State,
527 A.2d 269 (Del. 1987); State v. Batangan, 799 P.2d 48 (Haw. 1990); State v. Middleton, 657
P.2d 1215 (Or. 1982).
77 See Gershman, supra note 50, § 5-10(0, at 64.
7see, e.g., State v. Griffin, 564 N.W.2d 370 (Iowa 1997); State v. Searles, 680 A.2d
612 (N.H. 1996).
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19981 Prosecutorial Use of Expert Testimony
PART III-EXPERT TESTIMONY TO EXPLAIN THE VICTIM'S
ABSENCE
As prosecutors litigate more and more domestic violence cases, the
likelihood increases that they will face situations where complainants refuse
to testify. This section examines the propriety and parameters of using expert
testimony to explain the victim's absence.79
While there exists anecdotal evidence that some courts have allowed
expert testimony on battering and its effects to explain a complainant's
refusal,8" only one reported case has addressed the issue. In 1982 in Pruitt v.
State,8 a Georgia appellate court ruled that such testimony was inadmissible
for two reasons. First, it ruled that testimony on battered woman's syndrome
was relevant only to support a defendant's self-defense claim. Second, the
court held that the prosecution did not establish that the missing witness was
a battered woman. Pruitt's precedential value is questionable since in the
years following the decision, a vast majority of courts have made it clear that
expert testimony on battering should not be limited solely to self-defense
claims.8 2 Thus, the issue is essentially one of first impression.
79 The use of expert testimony to explain the refusal differs from situations where a
party seeks to introduce a complainant's out-of-court statements by having her declared
unavailable. See Weinstein & Berger, supra note 27, § 804. In this instance, the State may call
an expert to give testimony on the witness's unavailability. See, e.g., State v. Allen, 755 P.2d
1153 (Ariz. 1988). Thus, a physician could testify that the witness is unavailable because of a
medical condition.
This section addresses the separate issue of whether the expert may testify as to
characteristics of battered women generally so that the jury may properly assess the evidence
before it. The court should not allow the expert to testify specifically that the reason the witness
has refused to testify is because she is a battered woman, since such testimony would be highly
prejudicial to the defendant. See note 77 and accompanying text supra.
8 0 See Parrish, supra note 6, at 108 n.59.
8 296 S.E.2d 795 (Ga. Ct. App. 1982).
82 See generally Parrish, supra note 4, at 106-08. But see State v. Pargeon, 582
N.E.2d 665 (Ohio Ct. App. 1991). Since Pruitt, Georgia courts have strongly endorsed the use
of expert testimony to support self-defense claims, even in non-traditional situations, such as
sleeping spouse cases. See Chapman v. State, 386 S.E.2d 129 (Ga. 1989). Concomitantly, the
Georgia legislature has specified that defendants may introduce expert testimony to support a
justification defense. Ga. Code Ann. 16-3-21(d) (Michie 1994). Finally, Georgia courts have
allowed expert testimony to explain that sexual assault victim's behavior was consistent with
the battered woman's syndrome. See Thompson v. State, 416 S.E.2d 755 (Ga. Ct. App. 1992).
Given this trend, Pruitt's continued validity is questionable.
Columbia Journal of Gender and Law
The first consideration for the admission of expert testimony in
domestic violence cases is whether such testimony is relevant. Expert
testimony is relevant if it is material and probative to the issues in dispute and
if it "assist[s] the trier of fact to understand the evidence."83 Implicit in this
requirement is that the prosecutor establish a prima facie case against the
defendant. If the only evidence that the prosecutor has is the victim's
testimony and the victim refuses to testify, the State is left without evidence,
and the court should grant a defense motion for dismissal.
To ensure the prosecution of domestic violence cases without the
victim's cooperation, battered women's advocates have long urged that law
enforcement officers and prosecutors be trained in so-called "victimless"
prosecutions to shift the paradigm of prosecuting domestic violence cases
away from being victim-driven. 4 Practitioners and commentators have
suggested a number of steps that police officers and prosecutors can take to
prosecute a domestic violence case without the victim's cooperation. Most of
these guidelines are equally applicable to prosecuting a case without the
victim's presence at trial. These steps include pragmatic recommendations for
law enforcement in the gathering of physical evidence, including the recording
of statements the victim makes at the scene; obtaining emergency 911 tapes
and medical records of treatment the victim obtained following a violent
incident.85 Concomitantly, prosecutors have been successful in developing
trial strategies that have gradually gained judicial acceptance. 86 They include
The Pruitt court's finding that the prosecutors did not establish a sufficient factual
foundation for the admission of expert testimony should be limited to the facts of the case.
83 Fed. R. Evid. 702. See notes 26-28 and accompanying text supra.
84 See Mary E. Asmus et al., Prosecuting Domestic Abuse Cases in Duluth:
Developing Effective Prosecution Strategies From Understanding the Dynamics of Abusive
Relationships, 15 Hamline L. Rev. 115 (1991); Developments in the Law-Legal Responses
to Domestic Violence, 106 Harv. L. Rev. 1498 (1993); Casey G. Gwinn & Anne O'Dell,
Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. St. U. L. Rev.
297 (1993).
85 See Hanna, supra note 1, at 1901-03; Casey & O'Dell, supra note 84. One small
town purchased eleven Polaroid cameras for its police force to allow immediate close-up
photographs of a victim's injuries. See John Pope, Petersburg Arrests Mandatory in Cases of
Domestic Violence, Richmond Times Dispatch, May 1, 1997, at B8.
86 See generally Keith, supra note 20. See also Hanna, supra note 1, at 1905-06;
Waits, supra note 10, at 327-28 (noting the prosecutor's role in educating judges to alter
antiquated notions of domestic violence).
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Prosecutorial Use of Expert Testimony
introducing out-of-court statements under excited utterance, unavailability, or
admission hearsay exceptions.8 7 Commentators have suggested other methods
of obtaining evidence against the defendant, including using propensity
evidence8
' and hearsay exceptions that to date have only applied to children.8 9
It is against this backdrop that we can examine the propriety of
allowing a prosecutor to offer expert testimony as part of a victimless
prosecution. Since courts consistently have allowed expert testimony to rebut
a defense attack on a witness's behavior, the easiest scenario for the
introduction of expert testimony is where the defense uses the complainant's
absence to attack the prosecution's case. If the defense requests a missing
witness charge9° or if it attacks the prosecution's case based on the victim's
absence, the court should allow the expert testimony to rebut the defense
attack. Additionally, if the defendant suggests that he was not in a battering
relationship, expert testimony on its dynamics would be relevant to explain the
complainant's absence.
87 See Asmus, supra note 84, at 19-144; Hanna, supra note 1, at 1903-04. Other
hearsay exceptions may require the presence of the declarant at trial, thus precluding their
applicability when the complainant refuses to testify. See, e.g., Asmus, supra note 84, at 139
(discussing the present sense impression exception).
88 See Hanna, supra note 1, at 1905.
89 Several states have created so-called "prompt complaint" hearsay exceptions for
statements made by sexual assault and child abuse victims. See, e.g., Tex. Crim. P. Code Ann.
§ 38.072 (1998). See generally Domestic Violence, 15 Wm. Mitchell L. Rev. 871, 887-88
(1989). The impetus for creating special hearsay exception in sex and child abuse cases was the
unique nature of these types of cases, in that the victims are often reluctant or unwilling to
testify, third party witnesses to the assault are rare, and the physical evidence may be
inconclusive. Courts and commentators have noted the similarities between rape trauma
syndrome and child abuse syndrome cases and domestic violence cases. See note 76 and
accompanying text supra. Accordingly, the "prompt complaint" exception may very well apply
to domestic violence cases. See Domestic Violence, supra, at 887-88.
90 A "missing witness" charge allows a jury to draw an adverse inference from a
party's failure to call a witness when the testimony would be material and the witness is within
the control of that party. See United States v. Torres, 845 F.2d 1165, 1169 (2d Cir. 1988). See
generally 1 Moore's Federal Practice § 630.30[51 (3d ed. 1997). Whether a complainant in a
domestic violence case is under the State's control is questionable. See generally Pace
University School of Law Battered Women's Justice Center, Memorandum of Law, In Domestic
Violence Cases Where the Victim Refuses to Testify for the Prosecution, Can the Defendant
Obtain a Missing Witness Charge? (last modified June 10, 1998)
.
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Columbia Journal of Gender and Law
At least one court has permitted the State to offer expert testimony on
battered woman's syndrome in a homicide case where the defendant pointed
to the victim's continued relationship with him to attack the prosecutor's
charge that he intentionally murdered her. In Isaacs v. State, 9' the trial court
permitted the expert testimony to "refute, rebut, or at least to explain why a
woman who has been allegedly battered would continue to go back to, and
have an affair with the individual who was doing the battering. '92 In affirming
the defendant's conviction, the Supreme Court of Indiana reasoned that the
expert testimony was properly admitted to refute the notion that the defendant
and the victim had a good relationship prior to her death.
While Isaacs is a homicide case where the victim is obviously
unavailable, its import is applicable to domestic violence prosecutions when
the complainant refuses to testify. Where a domestic violence defendant
denies the charges against him, and instead attempts to portray a good
relationship between himself and the missing complainant, the court should
permit the prosecutor to offer expert testimony on battering and its effects to
explain a missing witness's seemingly inconsistent behavior toward the
defendant, such as remaining with him despite claims of abuse.
Even without a direct defense attack on the complainant's absence, the
prosecution should still be able to introduce expert testimony if there is
sufficient independent evidence to support the charges against the defendant.
As the previous sections demonstrated, courts have ruled that it is a witness's
puzzling or incongruous behavior which the average juror may not understand,
creating the need for expert testimony. To ajuror unschooled in the dynamics
of domestic violence, the refusal of a complainant to testify against the
defendant is the quintessence of puzzling behavior. The jury might easily
interpret the refusal to appear as evidence that the complainant was not
injured, thus undermining the independent evidence offered by the
prosecution. Expert testimony would therefore be helpful to neutralize any
negative implications the jury may draw from the complainant's refusal to
testify.
The refusal to testify in such a situation is analogous to a
complainant's recantation at trial of earlier statements implicating the
defendant. Thus, the same rules that govern the admissibility of expert
testimony to explain a recantation should govern in this situation.93 The
9' 659 N.E.2d 1036 (Ind. 1995).
92 Id. at 1041.
93 See note 47 and accompanying text supra.
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Prosecutorial Use of Expert Testimony
prosecution would not be using the expert to impermissibly bolster its case,
but rather to explain general characteristics of the dynamics of domestic
violence to the jurors who may naturally be confused by the complainant's
absence, and who may thus improperly draw negative conclusions from her
absence.
Defendants will object to the prosecutorial use of expert testimony
when a witness refuses to testify by claiming that the expert testimony is too
speculative or without proper foundation. To forestall such an objection, in
addition to the independent evidence of the charges and a foundation that the
victim was a battered woman, 94 the prosecution should be prepared to offer
testimony that explains its office's efforts to get the complainant to testify and
to explain that she is aware that the trial is taking place.95 In addition,
prosecutors should be prepared to stress that the expert testimony is not
offered as positive evidence of the charges against the defendant, but only as
a means of negating the negative inferences the jury might derive from the
complainant's absence.
As in the case of a recantation, the courts must carefully delineate the
proper scope of the expert testimony to avoid undue prejudice to the
defendant. The expert should not be permitted to opine as to the reason for
the particular complainant's absence. The expert should also be prohibited
from testifying as to whether the complainant was in fact a battered woman.
The expert should only be allowed to describe common characteristics of
battering and its effects on women, including why a person may refuse to
testify.
CONCLUSION
Much progress has been made in the past two decades to educate the
general public about the breadth and depth of domestic violence in this
country. Law enforcement has begun to take an aggressive stance against
94 See, e.g., Camahan v. State, 681 N.E.2d 1164 (Ind. Ct. App. 1997).
9 5 Additionally, the defense may claim that Sixth Amendment Confrontation Clause
rights are violated by the complainant's absence. U.S. Const. amend VI. The court should
reject this contention because the prosecution is proceeding with independent evidence of the
charges, including hearsay statements that do not required the complainant's presence at trial.
See Idaho v. Wright, 497 U.S. 805 (1990). See generally Jacqueline Miller Beckett, The True
Value of the Confrontation Clause: A Study of Child Sex Abuse Trials, 82 Geo. L.J. 1605
(1994); Diana Younts, Note, Evaluating and Admitting Expert Opinion Testimony in Child
Sexual Abuse Prosecutions, 1991 Duke L.J. 691 (1991).
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Columbia Journal of Gender and Law
domestic violence through mandatory arrest and no-drop policies. However,
unless jurors fully comprehend the enormous emotional, physical, financial,
and sociological effects of battering, they will be unable to adequately assess
the cases before them.
The propriety of expert testimony on battering and its effects in
support of self-defense claims has become a settled principle of law because
the courts have recognized that jurors may be clouded by misconceptions
about domestic violence. The admissibility of expert testimony is grounded
on its ability to assist the finders of fact. The same rationale that has led to
judicial acceptance of defensive use of expert testimony applies to
prosecutorial use of expert testimony. The expert can provide the jurors with
an understanding of why a victim of domestic violence would remain in an
abusive relationship, why she may recant charges against her abuser, or why
she may refuse to appear at trial. The courts have reacted favorably to
prosecutorial use of expert testimony, particularly when it is used to
rehabilitate a witness. Accordingly, prosecutors should include expert
testimony as an integral part of their trial strategy. In so doing, prosecutors
will be able to lessen the undue reliance they have placed historically on a
victim's testimony. Developing independent evidence to support the charges
against a defendant, together with expert testimony to explain the effects of
battering and demystify a victim's puzzling behavior, will help prosecutors in
vigorously prosecuting domestic violence incidents.
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