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Expanding battered woman syndrome testimony

As I mentioned yesterday, the big decision last week from the Ohio Supreme Court was State v. Haines, where the defendant was convicted of mulitiple counts of kidnapping, abduction, and domestic violence of his girlfriend.  The issue was the propriety of the prosecution's introduction of expert testimony on the battered woman syndrome.  The Court's ruling on that was fairly specific:

When a victim's credibility is challenged upon cross-examination during the state's case-in-chief, the state may introduce expert testimony regarding battered woman syndrome to aid the trier-of-fact in determining the victim's state of mind, e.g., to explain why she returned to the defendant despite his aggressions toward her.

The devil's in the details, though, and the Court's decision is neither as broad nor as clear as it might appear.  As the Court acknowledged, use of such testimony poses twin dangers:

An expert witness who diagnoses a victim as a battered woman essentially concludes that the defendant is a batterer. In a case where the underlying charges involve domestic violence, such a conclusion by an expert witness is prejudicial to the defendant and usurps the jury's role as finder-of-fact. A diagnosis can prejudice a defendant further because the expert is presenting a conclusion regarding the victim's credibility, which again is a conclusion to be made by the jury.

The inherent difficulties in presenting such testimony are indicated by the Court's resolution of how this particular needle can be threaded:

Limitations placed upon the expert's testimony -- "the expert cannot opine that complainant was a battered woman, may not testify that defendant was a batterer or that he is guilty of the crime, and cannot comment on whether complainant was being truthful"-- dispel concerns about unfair prejudice... if the expert expresses no opinion as to whether the victim suffers from battered woman syndrome or does not opine on which of her conflicting statements is more credible, such testimony does not interfere with or impinge upon the jury's role in determining the credibility of witnesses.

Well, that's nice, but if the jury has a cumulative IQ higher than the speed limit, they're not going to have much trouble figuring out that the expert explaining how battered women act isn't talking about his Aunt Midge.

Several thoughts.  First, if you've got a case like this, read the opinion carefully.  It does place limits on the testimony, and you need to enforce those limits to minimize the damage. 

Second, to the extent that a trial is supposed to be a truth-finding process, it's hard to quibble with the result in Haines.  Yes, the expert testimony was certainly prejudicial, but that gets back to the observation that all evidence is supposed to be prejudicial, or otherwise it wouldn't be offered.  It's only unfairly prejudicial evidence which is prohibited, and given that battered woman syndrome is a reality, it doesn't seem unfair to ensure that a jury has an understanding of how it works.  After reading the facts in Haines, one does not come away with the feeling that an injustice was done.

But that's a key point, too:  in Haines, the facts about the abuse were testified to by the victim, and the expert testimony was introduced only to rehabilitate her by explaining why she wouldn't have reported the initial abuse, or why she went back to the defendant.  What if she hadn't testified at all, or even denied that abuse had occurred?  Part of the battered woman syndrome is that victims will often recant claims of abuse.  Could the state introduce expert testimony on that?  Given that Haines only addresses the issue of when "the victim's credibility is challenged upon cross-examination," the answer right now is probably no, but that could change.

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