Chapter V
Admissibility of Expert Testimony on the Battered Woman Syndrome
A. Admissibility of Expert Testimony on the BWS in Michigan
B. Admissibility of Expert Testimony on the BWS in Other States
C. Admissibility: Pro and Contra
1. Battered Women's Experiences Are Beyond the Knowledge of the Average Juror.
2. "Junk Science" and the Anti-Syndrome Movement
A. Admissibility of Expert Testimony on the BWS in Michigan
In 1992, the Michigan Court of Appeals held that expert testimony on the BWS is admissible in cases where domestic violence was a factor in the commission of an offense. 104 (See Appendix 11). Wilson was subsequently limited in 1995 by People v. Christel, 449 Mich. App. 578, 537 N.W. 2d 194 (1995).
In People v. Wilson, the defendant shot her husband while he slept. She claimed, however, that she shot him in self-defense in response to forty-eight hours of abuse and death threats, and years of battery. The Wilson court held that expert testimony on the BWS is necessary to give the trier of fact a better understanding of the evidence--especially in light of the fact that the average juror is unaware or misinformed about certain characteristic behaviors of battered women. In its opinion, the court included a description of the cycle of domestic violence and its effects on the psyche of the battered woman. 105 The Wilson court stated that expert testimony on the BWS should be limited to an explanation of symptoms and a general description of the syndrome. Wilson forbids experts from expressing an opinion about whether the defendant in a particular case suffered from the BWS or acted pursuant to it. In addition, the court held that an expert could not testify that the defendant's allegations of battery were, in fact, truthful.
In 1995, the court in People v. Christel limited the admissibility of expert testimony on the BWS in a case where the battered woman was a witness (not a defendant) against her assailant. 106 The court in Christel acknowledged that expert testimony on the BWS is relevant when needed to explain a complainant's actions--such as prolonged endurance of physical abuse, delays in reporting abuse, or recanting allegations of abuse. However, the court held that expert testimony on the BWS is admissible "only when it is relevant and helpful to the jury in evaluating a complainant's credibility." (emphasis added).
In Christel, the defendant was charged with criminal sexual conduct and sentenced to fifteen to twenty-five years for breaking into his ex-girlfriend's house and raping her. During cross-examination, the defense attempted to portray the complainant as a liar. To rebut some of these claims, the prosecution called an expert to testify on the BWS. The court held that admission of expert testimony was error where the complainant did not remain in the abusive relationship, did not try to hide the abuse, and did not delay in reporting the incident. The court stated: "Expert testimony usually is not needed to explain alternative prosecution theories, but to explain things not readily comprehensible to the average juror."
The Christel decision will probably not have a limiting effect on the trials of battered women who kill their partners because in these cases the woman's credibility (specifically her reasonable belief that she was acting in self-defense) is very much at issue.
B. Admissibility in Other States
1. Caselaw
The vast majority of states allow expert testimony on the BWS in support of battered women's defense claims. 107 Such testimony is most readily accepted in cases involving traditional self-defense situations. Still, expert testimony has also been admitted in a number of state courts in non-traditional self-defense situation, such as when a battered woman kills her sleeping abuser (accepted by 29% of the states ) or when she hires someone to kill her abuser (accepted by 20% of the states). 108 In about 25% of states, experts can give an opinion on whether the defendant acted in self-defense. Most states do not allow an expert to testify on whether the defendant's belief that she was in imminent danger was reasonable. 109
Since 1990, nine states have enacted legislation to provide for admissibility of expert testimony on the battered woman syndrome. 110 In 1991, the Texas legislature amended the evidence section of the Texas Penal Code to require courts to admit expert testimony if the woman is trying to establish that use of deadly force was imminently necessary. 111 According to the amendment, the woman "shall be permitted to offer" (1) relevant evidence that the defendant had been the victim of acts of family violence committed by the deceased (2) relevant expert testimony regarding the condition of the defendant's mind at the time of the offense.
Some states, like California and Ohio, have enacted legislation to preclude attacks on admissibility by declaring the the BWS is scientifically valid. 112 Maryland has gone so far as to admit evidence of the BWS "notwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense." 113
C. Admissibility: Pro and Contra
When a battered woman is accused of killing her assailant, the degree to which expert testimony should be admissible to show her state of mind is a subject of some controversy yet today. The Supreme Court has not yet decided the issue. Most frequently, such testimony has been referred to as "battered women's syndrome testimony." Opponents of admitting expert testimony on the BWS argue that the expert testimony should be excluded because (1) battered women's experiences are not beyond the ken of the average juror; (2) the BWS is "junk science;" and (3) when offered in conjunction with a self-defense plea, expert testimony seeks to give women a license to kill. Proponents of expert testimony argue that it is essential to a woman's self-defense claim.
1. Battered Women's Experiences Are Beyond the Knowledge and Experience of the Average Juror.
In an article arguing for the exclusion of expert testimony of the BWS, Mira Mihajlovich states that jurors do not need the help of expert testimony to understand that previous violent encounters alter a woman's perception about when she is in imminent danger. 114 Mihajlovich further argues that questioning during voir dire is sufficient to root out jurors who hold biased views about women who stay in abusive relationships.
Most courts have found Mihajlovich's argument unpersuasive. As discussed below, the Court of Appeals of Michigan found that the average juror is uninformed or misinformed about certain characteristic behaviors of battered women. 115 Specifically, the admission of expert testimony regarding battering and its effects is imperative to explain to laypeople why the woman stayed in the relationship.
2. Junk Science and the Anti-Syndrome Movement
Increasingly, parties seeking to refute evidence that an adversary acted in accordance with one of the syndromes are calling experts of their own to say that syndromes are nothing but half-baked unscientific attempts to categorize diverse behavioral characteristics into tidy categories. Rape trauma syndrome and battered child syndrome have borne the brunt of the backlash against syndrome evidence in the court room. Nonetheless, some of the same criticisms lodged against rape trauma syndrome and battered child syndrome have been lodged against the BWS in other jurisdictions. 116
First, syndromes like the BWS are not listed in the Diagnostic and Statistical Manual published by the American Psychiatric Association. Second, expert critics of "junk science" maintain that syndromes are the creation not of scientists and researchers, but of therapists who from pseudo-scientific theories on the basis of personal experience and anecdotal evidence. 117 Critics argue that therapists are not in a position to confirm whether symptoms reported by clients actually exist or exist to the degree that they are reported. Junk science witnesses explain that therapists like to impose order on diversity of experience because it makes them "feel better" to attach a name to a series of complex behaviors. 118
According to these skeptics of so-called "junk science," the symptoms and definitions of syndromes become so all-encompassing that every conceivable human behavior is seen as confirming the existence of the syndrome. Thus, syndromes become evidence of everything and nothing; anything a woman does is taken to be consistent with the fact that she was raped/battered. "Junk science" experts seek to place doubt in the minds of judges and juries about whether syndrome evidence is empirically reliable.
3. Claims that expert testimony coupled with a self-defense plea amounts to "license to kill."
In the wake of the recent Bobbit and Menendez trials, one often hears members of the media use the term "the abuse excuse" to describe what was perceived as a disingenuous attempt by defense attorneys to direct attention away from their clients' bad actions. Not only media and lay people, but also judges and lawyers often misconstrue the purpose of expert testimony on abuse in criminal trials.
Some have misconceived expert testimony as an effort to create a special "battered women's defense" to homicide which would allow a woman to "destroy her tormentor at her own discretion." 119 There is no such special defense. No unique legal rules on self-defense apply to the battered woman's self-defense case. When a battered woman kills her abusive partner, expert testimony on the BWS is used not to explain away her actions, but to support her self-defense claim.
According to Jane Parrish, a consultant for the National Clearinghouse for the Defense of Battered Women:
Supporting the introduction of expert testimony does not promote vigilantism; it promotes fair trials. Defendants--including battered women defendants--should be able to introduce all relevant evidence at their trials, including evidence of and expert testimony about their experiences of abuse, that can help the jurors better understand their situations. 120
Parrish further notes that this type of social context information is not unique to battered women's self-defense cases. 121 For example, in a barroom brawl case, a defendant may bring in evidence of the victim's prior threats to support the fact that his actions in self-defense were reasonable. In the same way, expert testimony on the nature and effects of battering can help explain why a woman who killed her partner in self-defense held a reasonable belief that she was in imminent danger.
Footnotes
104. See: People v. Wilson, 487 N.W.2d 822 (1992).
105. See: id. at 823-24
106. 449 Mich. app. 578
107. See: Parrish, note 107, supra at 3.
108. Id.
109. Id.
110. Battered Women Who Kill Their Abusers. 106 Harv.L.R. 1574, 1585 *1993).
111. Tes. Penal Code Ann. ???? 19.06 (Vernon 1989 & Supp. 1993).
112. Battered Women Who Kill Their Abusers. 106 Harv. L.R. 1574, 1585 (1993).
113. Id.
114. See: Mihajlovich at 1253
115. See: People v. Wilson, 194 Mich. App. 599, 487 N.W.2d 822, 824 (1992).
116. See: "Syndrome Evidence: Don't Get Fooled Again." Material for Presentation by Gail Benson and Jeanice Dagher-Margosian. On file at the Battered Women's Clemency Project.
117. See: testimony by Dr. Carol Tavris in "Syndrome Evidence: Don't Get Fooled Again." note 103, supra
118. Id.
119. See: Mihajlovich at 1273.
120. Jane Parrish. "Trend Analysis: Expert Testimony on Battering and Its Effects in Criminal Cases." 1995. See: National Clearinghouse for the Defense of Battered Women at: http://www.cybergrrl.com/planet/dv/stat/statbwkill.html
121. Id. at 2.