"Lies, Damned Lies, and Statistics"?Psychological Syndrome Evidence in the Courtroom after Daubert

Indiana Law Journal

Volumn 71, Issue 3, 1996, Pages 753-771

  Duncan, Krista L ^a,b  

^a INDIANA UNIVERSITY   (United States)

^b MARSHALL UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0030533897     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (178)

1. In Frye, the court excluded evidence offered by a murder defendant of his results on a "systolic blood pressure deception test," a predecessor to the modern lie detector test. 293 F. 1013, 1014 (D.C. 1923).
2. Id. at 1014.
3. At least not in the federal court system. Daubert's influence will also filter into some state court systems, since many states pattern their rales of evidence after the Federal Rules. David E. Bernstein, The Admissibility of Scientific Evidence After Daubert v. Merrell Dow Pharmaceuticals, Inc., 15 CARDOZO L. REV. 2139, 2147 n.53 (1994). But see People v. Leahy, 882 P.2d 321 (Cal. 1994) (refusing to discard the California version of Frye). 4. 113 S. Ct. 2786 (1993).
4. Id. at 2795 (emphasis in original) (quoting FED. R. EVID. 702).
5. Id. The standard developed by the Court in Daubert is addressed fully infra part I.
6. Laurens Walker & John Monahan, Social Frameworks: A New Use of Social Science in Law, 73 VA. L. REV. 559, 559 (1987) (emphasis in original).
7. See Neil J. Vidmar & Regina A. Schuller, Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP. PROBS., Autumn 1989, at 133, 134-36.
8. David L. Faigman et al., Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 CARDOZO L. REV. 1799, 1818 (1994).
9. See, e.g., Michael H. Gottesman, Should Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, 15 CARDOZO L. REV. 1837, 1837-38 (1994) (concluding that the "less rigorous" standard set forth in Daubert will result in increased admissibility of some types of scientific evidence and decreased admissibility of other types).
10. See, e.g., Ronald J. Allen, Expertise and the Daubert Decision, 84 J. CRIM. L. 1157, 1172 (1994) (suggesting that testimony which is based in Freudian psychiatry, for example, should be excluded under Daubert due to a lack of empirical testing).
11. See, e.g., Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715, 786-87 (1994) (concluding that the overall admissibility of evidence will not change much due to the new standard); Jean Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U. PITT. L. REV. 889, 926 (1994) (suggesting that Daubert's primary impact will be limited to jurisdictions which were devout followers of Frye); Margaret G. Farrell, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process, 15 CARDOZO L. REV. 2183, 2184-85 (concluding that the new standard is a "draw in the power struggle between the plaintiffs' and the defendants' bar"); Randolph N. Jonakait, The Meaning of Daubert and What That Means for Forensic Science, 15 CARDOZO L. REV. 2103, 2104 (1994) (concluding that Daubert's test may not affect admissibility because it is too flexible).
12. See, e.g., Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715, 786-87 (1994) (concluding that the overall admissibility of evidence will not change much due to the new standard); Jean Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U. PITT. L. REV. 889, 926 (1994) (suggesting that Daubert's primary impact will be limited to jurisdictions which were devout followers of Frye); Margaret G. Farrell, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process, 15 CARDOZO L. REV. 2183, 2184-85 (concluding that the new standard is a "draw in the power struggle between the plaintiffs' and the defendants' bar"); Randolph N. Jonakait, The Meaning of Daubert and What That Means for Forensic Science, 15 CARDOZO L. REV. 2103, 2104 (1994) (concluding that Daubert's test may not affect admissibility because it is too flexible).
13. See, e.g., Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715, 786-87 (1994) (concluding that the overall admissibility of evidence will not change much due to the new standard); Jean Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U. PITT. L. REV. 889, 926 (1994) (suggesting that Daubert's primary impact will be limited to jurisdictions which were devout followers of Frye); Margaret G. Farrell, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process, 15 CARDOZO L. REV. 2183, 2184-85 (concluding that the new standard is a "draw in the power struggle between the plaintiffs' and the defendants' bar"); Randolph N. Jonakait, The Meaning of Daubert and What That Means for Forensic Science, 15 CARDOZO L. REV. 2103, 2104 (1994) (concluding that Daubert's test may not affect admissibility because it is too flexible).
14. See, e.g., Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715, 786-87 (1994) (concluding that the overall admissibility of evidence will not change much due to the new standard); Jean Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U. PITT. L. REV. 889, 926 (1994) (suggesting that Daubert's primary impact will be limited to jurisdictions which were devout followers of Frye); Margaret G. Farrell, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process, 15 CARDOZO L. REV. 2183, 2184-85 (concluding that the new standard is a "draw in the power struggle between the plaintiffs' and the defendants' bar"); Randolph N. Jonakait, The Meaning of Daubert and What That Means for Forensic Science, 15 CARDOZO L. REV. 2103, 2104 (1994) (concluding that Daubert's test may not affect admissibility because it is too flexible).
15. Frye, 293 F. at 1014.
16. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2794 (1993).
17. Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F. Supp. 570, 572 (S.D. Cal. 1989), aff'd, 951 F.2d 1128 (9th Cir. 1991), vacated, 113 S. Ct. 2786 (1993).
18. Id. at 575.
19. Id. at 573.
20. Id. 19. Daubert, 951 F.2d 1128, vacated, 113 S. Ct. 2786.
21. Daubert, 113 S. Ct. at 2799.
22. Id. at 2793-94. Rule 401 defines relevant evidence as that which has "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." FED. R. EVID. 401. Rule 402 provides that "[a]ll relevant evidence is admissible, except as otherwise provided. . . . Evidence which is not relevant is not admissible." FED. R. EVID. 402.
23. Id. at 2793-94. Rule 401 defines relevant evidence as that which has "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." FED. R. EVID. 401. Rule 402 provides that "[a]ll relevant evidence is admissible, except as otherwise provided. . . . Evidence which is not relevant is not admissible." FED. R. EVID. 402.
24. FED. R. EVID. 702.
25. Rule 702 also requires that an expert be qualified to testify by reason of knowledge, skill, experience, training, or education. This requirement was not at issue in Daubert, and it will not be addressed in this Note.
26. Daubert, 113 S. Ct. at 2796.
27. Id. at 2797.
28. Id. at 2795 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1252 (1986)).
29. Id. at 2795.
30. Id. at 2796 (quoting Michael D. Green, Legal Theory: Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 NW. U. L. REV. 643, 645 (1992)).
31. Id. at 2797.
32. Id. 31. "Operationalization" refers to the process of defining the variables under study in a way amenable to measurement. Thus, weight might be defined in pounds and intelligence might be defined by performance on the Wechler Adult Intelligence Scale - Revised. Scientific terms are operationalized so that experiments can be replicated by other scientists. See JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES AND MATERIALS 39-41 (3d ed. 1994). Operationalization is crucial to the concept of scientific knowledge.
33. "'Generalization' is the accepted rubric for evaluating how far beyond the specific facts of the study validly-produced research findings remain valid." John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. PA. L. REV. 477, 506-07 (1986).
34. "Confounding factors" are alternative causes of a phenomenon. For example, an experiment which aspires to draw a relationship between the number of hours a student spends studying and the grade that student receives in a class must control for other factors which might influence the results of the experiment. Obvious confounding factors might include level of intellect, previous experience in the subject, study methods, and variations in grading; less obvious factors which might influence the results of the study could include the order in which tests are graded and how much each student slept the night before the test. See id. at 502 (discussing agreement among social scientists that third variables should be controlled for in an experiment).
35. Selection bias refers to preexisting differences between samples. See id. at 502-03.
36. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2797 (1993).
37. Id. at 2796.
38. Id.
39. Id. at 2798 (quoting FED. R. EVID. 402).
40. See, e.g., Arvin Maskin, The Impact of Daubert on the Admissibility of Scientific Evidence: The Supreme Court Catches up with a Decade of Jurisprudence, 15 CARDOZO L. REV. 1929, 1931 (1994) (quoting Judge Jack Weinstein in In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1256 (E.D.N.Y. 1985)).
41. See, e.g., Arvin Maskin, The Impact of Daubert on the Admissibility of Scientific Evidence: The Supreme Court Catches up with a Decade of Jurisprudence, 15 CARDOZO L. REV. 1929, 1931 (1994) (quoting Judge Jack Weinstein in In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1256 (E.D.N.Y. 1985)).
42. See generally J. Alexander Tanford et al., Novel Scientific Evidence of Intoxication: Acoustic Analysis of Voice Recordings from the Exxon Valdez, 82 J. CRIM. L. & CRIMINOLOGY 579, 596 (1992); Walker & Monahan, supra note 7, at 576.
43. For an argument that testimony in the social sciences is not likely to overwhelm a jury, see David McCord, The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions, 26 B.C. L. REV. 1143, 1187-88 (1985); see also Helen J. Lauderdale, Comment, The Admissibility of Expert Testimony on Rape Trauma Syndrome, 75 J. CRIM. L. & CRIMINOLOGY 1366, 1391-93 (1984).
44. For an argument that testimony in the social sciences is not likely to overwhelm a jury, see David McCord, The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions, 26 B.C. L. REV. 1143, 1187-88 (1985); see also Helen J. Lauderdale, Comment, The Admissibility of Expert Testimony on Rape Trauma Syndrome, 75 J. CRIM. L. & CRIMINOLOGY 1366, 1391-93 (1984).
45. John O. Lipkin et al., Vietnam Veterans and Posttraumatic Stress Disorder, 33 HOSP. & COMMUNITY PSYCHIATRY 908, 909 (1982).
46. DATAPEDIA OF THE UNITED STATES, 1790-2000, at 452 (George T. Kurian ed., 1994) (citing U.S. Department of Defense Manpower Statistics, Fiscal Year 1988).
47. John O. Lipkin et al., Post-Traumatic Stress Disorder in Vietnam Veterans: Assessment in a Forensic Setting, BEHAV. SCI. & L., Summer 1983, at 51, 54.
48. Lipkin et al., supra note 42, at 910-11.
49. Michael J. Davidson, Note, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War, 29 WM. & MARY L. REV. 415, 417-18 (1988); see also David McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 OR. L. REV. 19 (1987).
50. Michael J. Davidson, Note, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War, 29 WM. & MARY L. REV. 415, 417-18 (1988); see also David McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 OR. L. REV. 19 (1987).
51. See OLA W. BARNETT & ALYCE D. LAVIOLETTE, IT COULD HAPPEN TO ANYONE: WHY BATTERED WOMEN STAY 95 (1993); C. Peter Erlinder, Post-Traumatic Stress Disorder, Vietnam Veterans and the Law: A Challenge to Effective Representation, BEHAV. SCI. & L., Summer 1983, at 25, 28 (reporting that "[a] substantial body of research exists which suggests that stress reactions among veterans have followed every major conflict in this century"); Davidson, supra note 46, at 418-19.
52. See OLA W. BARNETT & ALYCE D. LAVIOLETTE, IT COULD HAPPEN TO ANYONE: WHY BATTERED WOMEN STAY 95 (1993); C. Peter Erlinder, Post-Traumatic Stress Disorder, Vietnam Veterans and the Law: A Challenge to Effective Representation, BEHAV. SCI. & L., Summer 1983, at 25, 28 (reporting that "[a] substantial body of research exists which suggests that stress reactions among veterans have followed every major conflict in this century"); Davidson, supra note 46, at 418-19.
53. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 309.89, at 236-38 (3d ed. 1980). PTSD's definition in the current edition of the manual is identical to its initial definition. The essential criteria for a diagnosis of PTSD are exposure to a traumatic event; significant impairment of everyday functioning; persistent reexperience of the event, such as flashbacks and dreams; avoidance of stimuli associated with the trauma and general numbness, such as repressed memories of the event and feelings of isolation; and increased arousal, such as sleep disturbances and anger outbursts. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 309.81, at 424-25 (4th ed. 1994).
54. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 309.89, at 236-38 (3d ed. 1980). PTSD's definition in the current edition of the manual is identical to its initial definition. The essential criteria for a diagnosis of PTSD are exposure to a traumatic event; significant impairment of everyday functioning; persistent reexperience of the event, such as flashbacks and dreams; avoidance of stimuli associated with the trauma and general numbness, such as repressed memories of the event and feelings of isolation; and increased arousal, such as sleep disturbances and anger outbursts. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 309.81, at 424-25 (4th ed. 1994).
55. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 309.81, at 424 (4th ed. 1994).
56. Arthur Egendorf, The Postwar Healing of Vietnam Veterans: Recent Research, 33 HOSP. & COMMUNITY PSYCHIATRY 901 (1982); see also McCord, supra note 46, at 65-66.
57. See Erlinder, supra note 47, at 41; McCord, supra note 46, at 66.
58. McCord, supra note 46, at 66.
59. See Davidson, supra note 46, at 422-23.
60. See, e.g., John P. Wilson & Sheldon D. Zigelbaum, The Vietnam Veteran on Trial: The Relation of Post-Traumatic Stress Disorder to Criminal Behavior, BEHAV. SCI. & L., Summer 1983, at 69.
61. ARTHUR EGENDORF ET AL., LEGACIES OF VIETNAM: COMPARATIVE ADJUSTMENT OF VETERANS AND THEIR PEERS 79 (1981).
62. Id. at 377. The correlation of angry feelings with combat exposure was .43; the correlation of actively expressed hostility with combat exposure was .30. Id. at 441, tbl 3.30.
63. Roger K. Pitman et al., Prevalence of Posttraumatic Stress Disorder in Wounded Vietnam Veterans, 146 AM. J. PSYCHIATRY 667, 667 (1989) (finding that 40% of wounded Vietnam veterans carry a lifetime diagnosis of PTSD). Numerous recent studies of soldiers, including one in an operational area of Namibia, support the conclusion that wide-ranging emotional problems are experienced by soldiers in active combat. See, e.g., Anthony Feinstein, Posttraumatic Stress Disorder: A Descriptive Study Supporting DSM-III-R Criteria, 146 AM. J. PSYCHIATRY 665, 665-66 (1989) (finding symptoms of PTSD, as outlined in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 3d ed., revised, in 14 men involved in an ambush).
64. Roger K. Pitman et al., Prevalence of Posttraumatic Stress Disorder in Wounded Vietnam Veterans, 146 AM. J. PSYCHIATRY 667, 667 (1989) (finding that 40% of wounded Vietnam veterans carry a lifetime diagnosis of PTSD). Numerous recent studies of soldiers, including one in an operational area of Namibia, support the conclusion that wide-ranging emotional problems are experienced by soldiers in active combat. See, e.g., Anthony Feinstein, Posttraumatic Stress Disorder: A Descriptive Study Supporting DSM-III-R Criteria, 146 AM. J. PSYCHIATRY 665, 665-66 (1989) (finding symptoms of PTSD, as outlined in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 3d ed., revised, in 14 men involved in an ambush).
65. Roger K. Pitman et al., Prevalence of Posttraumatic Stress Disorder in Wounded Vietnam Veterans, 146 AM. J. PSYCHIATRY 667, 667 (1989) (finding that 40% of wounded Vietnam veterans carry a lifetime diagnosis of PTSD). Numerous recent studies of soldiers, including one in an operational area of Namibia, support the conclusion that wide-ranging emotional problems are experienced by soldiers in active combat. See, e.g., Anthony Feinstein, Posttraumatic Stress Disorder: A Descriptive Study Supporting DSM-III-R Criteria, 146 AM. J. PSYCHIATRY 665, 665-66 (1989) (finding symptoms of PTSD, as outlined in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 3d ed., revised, in 14 men involved in an ambush).
66. Ann Wolbert Burgess & Lynda Lytle Holmstrom, Rape Trauma Syndrome, 131 AM. J. PSYCHIATRY 981, 981-82 (1974).
67. Id.
68. Id. at 982.
69. Id. at 982-83. Somatic reactions commonly experienced by the victims included bruising and irritation, tension headaches and sleep disturbances, stomach pains, vaginal discharge, itching, and burning. Id. The authors did not provide data regarding the percentage of women with these complaints.
70. "Forty-four of the 92 victims changed residences within a relatively short period of time after the rape." Id. at 983.
71. Twenty-nine of ninety-two victims suffered from violent dreams. Id. at 984.
72. Id. The percentages of women suffering from phobic reactions is not provided.
73. Id.
74. Id. The authors did not provide the percentage of subjects dealing with sexual fears or problems.
75. See, e.g., Patricia A. Frazier & Eugene Borgida, Rape Trauma Syndrome, 16 LAW & HUM. BEHAV, 293, 299 (1992); Dean G. Kilpatrick et al., The Aftermath of Rape: Recent Empirical Findings, 49 AM. J. ORTHOPSYCHIATRY 658, 658-59 (1979); Note, Checking the Allure of Increased Conviction Rates: The Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings, 70 VA. L. REV. 1657, 1667-72 (1984).
76. See, e.g., Patricia A. Frazier & Eugene Borgida, Rape Trauma Syndrome, 16 LAW & HUM. BEHAV, 293, 299 (1992); Dean G. Kilpatrick et al., The Aftermath of Rape: Recent Empirical Findings, 49 AM. J. ORTHOPSYCHIATRY 658, 658-59 (1979); Note, Checking the Allure of Increased Conviction Rates: The Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings, 70 VA. L. REV. 1657, 1667-72 (1984).
77. See, e.g., Patricia A. Frazier & Eugene Borgida, Rape Trauma Syndrome, 16 LAW & HUM. BEHAV, 293, 299 (1992); Dean G. Kilpatrick et al., The Aftermath of Rape: Recent Empirical Findings, 49 AM. J. ORTHOPSYCHIATRY 658, 658-59 (1979); Note, Checking the Allure of Increased Conviction Rates: The Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings, 70 VA. L. REV. 1657, 1667-72 (1984).
78. See Kilpatrick et al., supra note 67, at 658-59; Note, supra note 67, at 1671-72.
79. See. e.g., Kilpatrick et al., supra note 67, at 659.
80. Note, supra note 67, at 1673.
81. Frazier & Borgida, supra note 67, at 301. Some of the newer research includes: Patricia Frazier & Eugene Borgida, Juror Common Understanding and the Admissibility of Rape Trauma Syndrome Evidence in Court, 12 LAW & HUM. BEHAV. 101 (1988) (finding that expert testimony regarding the effects of rape could be helpful to jurors due to a discrepancy between experts and laypersons on knowledge of the subject); Kilpatrick et al., supra note 67, at 166-68 (finding disruptive effects immediately after the rape and up to six months thereafter); Carol C. Nadelson et al., A Follow-Up Study of Rape Victims, 139 AM. J. PSYCHIATRY 1266 (1982) (finding continued rape-related problems one to three years after the assault).
82. Frazier & Borgida, supra note 67, at 301. Some of the newer research includes: Patricia Frazier & Eugene Borgida, Juror Common Understanding and the Admissibility of Rape Trauma Syndrome Evidence in Court, 12 LAW & HUM. BEHAV. 101 (1988) (finding that expert testimony regarding the effects of rape could be helpful to jurors due to a discrepancy between experts and laypersons on knowledge of the subject); Kilpatrick et al., supra note 67, at 166-68 (finding disruptive effects immediately after the rape and up to six months thereafter); Carol C. Nadelson et al., A Follow-Up Study of Rape Victims, 139 AM. J. PSYCHIATRY 1266 (1982) (finding continued rape-related problems one to three years after the assault).
83. See McCord, supra note 41, at 1155.
84. See generally RAPE AND SEXUAL ASSAULT III 22-23 (Ann Wolbert Burgess ed., 1991).
85. McCord, supra note 41, at 1168 (emphasis added). But see Note, supra note 67, at 1678-80 (arguing that recent studies suffer from inadequate operational definitions and biased research samples, and that individual reactions to rape are so dependent upon various factors that no causal relationship could be established).
86. McCord, supra note 41, at 1152 (noting the recognition of rape trauma syndrome in MODERN SYNOPSIS OF COMPREHENSIVE TEXTBOOK OF PSYCHIATRY/III 448 (Harold I. Kaplan & Benjamin J. Sadock eds., 1980)).
87. See Frazier & Borgida, supra note 71, at 111-12; Vidmar & Schuller, supra note 8, at 133. For the diagnostic criteria of PTSD and a description of the disorder, see supra note 48 and accompanying text.
88. See, e.g., People v. Taylor, 552 N.E.2d 131 (N.Y. 1990) (allowing such testimony to aid in explaining the victim's behavior); LYNDA LYTLE HOLMSTROM & ANN WOLBERT BURGESS, THE VICTIM OF RAPE 186-88 (1978). Moreover, in a case where the rape victim was calm after the assault, the defense lawyer might assert that if the victim had actually been raped, she could not possibly have been calm. See Henson v. State, 535 N.E.2d 1189 (Ind. 1989).
89. See, e.g., State v. Huey, 699 P.2d 1290 (Ariz. 1985); State v. Marks, 647 P.2d 1292 (Kan. 1982); State v. Saldana, 324 N.W.2d 227 (Minn. 1982).
90. See, e.g., State v. Bressman, 689 P.2d 901 (Kan. 1984); Taylor, 552 N.E.2d 131. Evidence of rape trauma syndrome has also been offered in the civil context of third party victims' rights. For examples of uses of testimony regarding PTSD generally, see Ann Wolbert Burgess, Rape Trauma Syndrome, BEHAV. SCI. & L., Summer 1983, at 97, 111 (describing the use of PTSD testimony in torts cases for the failure to screen employees properly and to provide adequate safety precautions on work premises); Lawrence J. Raifman, Problems of Diagnosis and Legal Causation in Courtroom Use of Post-Traumatic Stress Disorder, BEHAV, SCI. & L., Summer 1983, at 115, 118-19 (describing, for example, the use of PTSD testimony in mass disaster litigation such as the Buffalo Creek flood in West Virginia).
91. See, e.g., State v. Bressman, 689 P.2d 901 (Kan. 1984); Taylor, 552 N.E.2d 131. Evidence of rape trauma syndrome has also been offered in the civil context of third party victims' rights. For examples of uses of testimony regarding PTSD generally, see Ann Wolbert Burgess, Rape Trauma Syndrome, BEHAV. SCI. & L., Summer 1983, at 97, 111 (describing the use of PTSD testimony in torts cases for the failure to screen employees properly and to provide adequate safety precautions on work premises); Lawrence J. Raifman, Problems of Diagnosis and Legal Causation in Courtroom Use of Post-Traumatic Stress Disorder, BEHAV, SCI. & L., Summer 1983, at 115, 118-19 (describing, for example, the use of PTSD testimony in mass disaster litigation such as the Buffalo Creek flood in West Virginia).
92. McCord, supra note 46, at 38-39 (reporting "solidified acceptance of the existence and characteristics" of rape trauma syndrome); see also Taylor, 552 N.E.2d at 135 (reviewing the literature and concluding that "rape trauma syndrome is generally accepted within the relevant scientific community").
93. Marks, 647 P.2d at 1292.
94. Id. at 1299.
95. Id. Conversely, the Supreme Court of Minnesota found the evidence inadmissible in a case where the defense was consent. Minnesota v. Saldana, 324 N.W.2d 227 (Minn. 1982). In the process of this confused opinion, Justice Scon asserted that the testimony would be of "no help," that it was not reliable because it did not determine "whether a rape occurred," and that it was unfairly prejudicial because "jurors of ordinary abilit[y] are competent to consider the evidence." Id. at 229-30. The court seemed to be reaching for any and every hook to hang its hat on, in the desperate fear that if any doors were left open, the ghost of PTSD would come back to haunt it.
96. Taylor, 552 N.E.2d 131.
97. Id. at 138.
98. Frazier & Borgida, supra note 67, at 296.
99. Id. at 300.
100. See, e.g., State v. Saldana, 324 N.W.2d 227, 229-30 (Minn. 1982).
101. 861 P.2d 192 (N.M. 1993).
102. Id. at 208-09.
103. Id. at 209.
104. Id. at 210. The court held the evidence inadmissible if offered toward the victim's credibility, the identification of the defendant, or causation. It also held that information regarding rape trauma syndrome specifically was inadmissible because it was not incorporated into the diagnostic manual. Id. at 212. However, the court failed to recognize both that the diagnostic manual listed rape as one of the potential stressors, and that the authoritative treatise on PTSD rated rape as a "quintessential example" of that syndrome. See supra text accompanying note 75.
105. Alberico, 861 P.2d at 207.
106. See Daubert, 113 S. Ct. at 2797; see also supra notes 28-35 and accompanying text. The New Mexico court's failure to critique the psychological literature underlying rape trauma syndrome is unfortunate, since "decisions that simply state the court's conclusions, without providing any supportive reasoning, are unlikely to persuade future decisionmakers." Monahan & Walker, supra note 32, at 501-02.
107. For an argument that the admissibility of evidence about rape trauma syndrome disserves the women's movement, see Susan Stefan, The Protection Racket: Rape Trauma Syndrome, Psychiatric Labeling, and Law, 88 NW. U. L. REV. 1271 (1994).
108. See Frazier & Borgida, supra note 67, at 301-02; Frazier & Borgida, supra note 71, at 115-18; Toni M. Massaro, Experts, Psychology, Credibility, and Rape: The Rape Trauma Syndrome Issue and Ils Implications for Expert Psychological Testimony, 69 MINN. L. REV. 395 (1985).
109. Vidmar & Schuller, supra note 8, at 148-49.
110. LENORE E. WALKER, THE BATTERED WOMAN (Harper & Row 1980) (1979).
111. Id. at 56.
112. Id. at 59.
113. Id. at 65.
114. Id. at 69.
115. Id. at 70.
116. CHARLES P. EWING, BATTERED WOMEN WHO KILL 11 (1987).
117. WALKER, supra note 98, at 50.
118. LENORE E. WALKER, TERRIFYING LOVE: WHY BATTERED WOMEN KILL AND HOW SOCIETY RESPONDS 51 (1989).
119. Another commentator describes a variety of reasons why battered women do not leave their relationships, only one of which is learned helplessness. He also discusses the lack of financial and supportive resources, traditional sex role stereotypes, depression, the "traumatic bond" between the partners, and the reinforcement the woman receives from her mate for staying in the relationship. EWING, supra note 104, at 12-21.
120. Regina A. Schuller & Neil Vidmar, Battered Woman Syndrome Evidence in the Courtroom: A Review of the Literature, 16 LAW & HUM. BEHAV. 273, 277 (1992) ("The intended function of expert testimony on battered women is to provide the jurors with an alternative perspective, or 'social framework' for interpreting the woman's beliefs and actions - an interpretive social schema from which to view her actions as reasonable rather than aberrant.").
121. CYNTHIA K. GILLESPIE, JUSTIFIABLE HOMICIDE: BATTERED WOMEN, SELF-DEFENSE, AND THE LAW 160 (1989). This use of the evidence distinguishes it from evidence regarding combat-related PTSD. See supra text accompanying notes 51-57.
122. GILLESPIE, supra note 109, at 159 (emphasis in original). Factored into the equation of reasonableness is the battered woman's belief that social institutions such as the police and the court system will not help her. Id. at 135-44; see also ANGELA BROWNE, WHEN BATTERED WOMEN KILL 159 (1987) (explaining that "although many women in the homicide group had made repeated unsuccessful appeals to the police for protection and assistance . . . the same system that failed to protect them from their partner's violence immediately arrested and prosecuted them when they responded in their own defense"). An exploration of the reasonableness of the woman's behavior is important since a successful assertion of self-defense typically requires that the defendant establish a reasonable perception of imminent danger and the use of reasonable force to repel that danger. Id. at 171; Schuller & Vidmar, supra note 108, at 276.
123. WALKER, supra note 106, at 65.
124. Id. at 48-49 n.*. But see GILLESPIE, supra note 109, at 155-56 (arguing that diagnosing battered women with posttraumatic stress disorder implies that their behavior is maladaptive, and presenting an alternate view that these women actually exhibit great strength).
125. See BARNETT & LAVIOLETTE, supra note 47, at 97-100.
126. See id. at 97.
127. See generally id. at 99-100.
128. See David L. Faigman, The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent, 72 VA. L. REV. 619, 633, 642 (1986); Schuller & Vidmar, supra note 108, at 281.
129. See, e.g., Walter J. (Season, Mental Disorders in Battered Women: An Empirical Study, 8 VIOLENCE & VICTIMS 53, 62 (1993) (finding "a cluster of serious disorders . . . including major depression, post traumatic stress disorder, generalized anxiety disorder, and obsessive compulsive disorder," which "seem related to the battered woman syndrome described by Walker").
130. See Schuller & Vidmar, supra note 108, at 280. The first stage was found in 65% of couples and the second stage was found in 58%. Id. "Over time in a battering relationship, [however,] tension-building becomes more common[, increasing to 71% of couples,] and loving contrite behavior declines [to 42%]." LENORE E. WALKER, THE BATTERED WOMAN SYNDROME 97 (1984).
131. Donald G. Dutton & Susan Painter, The Battered Woman Syndrome: Effects of Severity and Intermittency of Abuse, 63 AM. J. ORTHOPSYCHIATRY 614, 620 (1993).
132. See Schuller & Vidmar, supra note 108, at 280; see also BARNETT & LAVIOLETTE, supra note 47, at 105-07 (reviewing these studies).
133. See BARNETT & LAVIOLETTE, supra note 47, at 105-06; see also LEE H. BOWKER, BEATING WIFE BEATING 63, 111 (1983) (noting that the most common methods of self-help are personal, such as hiding or talking the man out of abuse, while the second most common methods involve the use of informal resources, including talking with family and friends, and formal sources of self-help, including contact with social service agencies, lawyers, and police, rank last).
134. BARNETT & LAVIOLETTE, supra note 47, at 106.
135. Browne included some relatively open-ended questions combined with more narrow follow-up questions.
136. BROWNE, supra note 110, at 127.
137. See GILLESPIE, supra note 109, at 171 (noting the use of "self-selected samples"); Faigman, supra note 116, at 619 (criticizing Walker's cycle theory and application of learned helplessness as suffering from many flaws, such as researcher bias, and contesting the use of battered woman syndrome as a component of self-defense); Schuller & Vidmar, supra note 108, at 280 (noting that Walker's research did not use a control group and had sampling problems).
138. See Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979) (ruling evidence on the battered woman syndrome admissible to boost the defendant's credibility and to support the defendant's testimony that she believed she was in imminent danger); State v. Kelly, 478 A.2d 364, 377-78 (N.J. 1984) (holding that expert testimony on the battered woman syndrome was sufficiently relevant and scientifically reliable to warrant admissibility). But see State v. Thomas, 423 N.E.2d 137, 139-40 (Ohio 1981) (finding no error in exclusion of battered woman syndrome evidence as irrelevant and immaterial in self-defense claim).
139. See Schuller & Vidmar, supra note 108, at 273 (reporting that a trend toward admissibility of this evidence has appeared); Cynthia L. Coffee, Note, A Trend Emerges: A State Survey on the Admissibility of Expert Testimony Concerning the Battered Woman Syndrome, 25 J. FAM. L. 373, 396 (1986) (same).
140. Schuller & Vidmar, supra note 108, at 279 (reporting that the American Psychological Association has recognized the validity of the battered woman syndrome by filing amicus briefs discussing the syndrome in homicide cases against battered women); Vidmar & Schuller, supra note 8, at 150-51.
141. Schuller & Vidmar, supra note 108, at 281.
142. There have only been two cases discussing the admissibility of battered woman syndrome evidence since the Daubert opinion. The U.S. District Court for the District of Kansas admitted testimony regarding the battered woman syndrome in a June, 1995 case. Unfortunately, that court focused its discussion on the liberal rules of relevancy and did not discuss the scientific basis for this syndrome. Thus, the court did not attempt a Daubert analysis. United States v. Brown, 891 F. Supp. 1501 (D. Kan. 1995). Such cursory analysis is unfortunate, and will undoubtedly lead to the admission of evidence which is scientifically unsound because it ignores the Daubert factors which block out scientifically unsupported evidence. One state case has considered the admissibility of scientific evidence since Daubert was handed down. In State v. Riker, 869 P.2d 43 (Wash. 1994), the Supreme Court of Washington declined to discard the Frye test in favor of Daubert in a case involving battered woman syndrome evidence. Due to the cursory analysis of the first federal court to apply Daubert to this type of evidence and the refusal of the Washington court to adopt the Daubert standard, there are currently no clues as to how judges will apply the Daubert test to this type of evidence.
143. See, e.g., BROWNE, supra note 110, at 12-13.
144. See EWING, supra note 104, at 23-40 (reviewing the work of several researchers on battered woman syndrome).
145. Schuller & Vidmar, supra note 108, at 280-81.
146. Id. at 282 (describing a recent study designed to assess the differences between lay and expert conceptions of the circumstances of battered women).
147. See id. at 282-83. Fortunately, research has not demonstrated that jurors typically believe many myths about abuse. Id. at 283.
148. See. e.g., Ibn-Tamas v. United States, 407 A.2d 626, 633-34 (D.C. 1979); State v. Kelly, 478 A.2d 364, 375 (N.J. 1984). In Arcoren v. United States, the prosecution successfully offered evidence about the battered woman syndrome to provide an explanation of why their witness would have recanted her previous inculpating testimony about her husband. 929 F.2d 1235, 1240 (8th Cir. 1991).
149. This Note will not focus on the concept known as the "battering parent profile." This profile is typically used by the prosecution to show that a parent charged with killing his child meets the profile of a batterer. In these cases, evidence of prior batterings is offered to establish the parent's character as a battering parent, not as social framework evidence. Therefore, it is inadmissible as character evidence under Federal Rule of Evidence 404(a) unless it is raised by the defendant. See, e.g., State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
150. Samuel X. Radbill, A History of Child Abuse and Infanticide, in THE BATTERED CHILD 16 (Ray E. Heifer & C. Henry Kempe eds., 1968).
151. See, e.g., THE BATTERED CHILD, supra note 138, app. B.
152. PAUL A. MONES, WHEN A CHILD KILLS: ABUSED CHILDREN WHO KILL THEIR PARENTS 9-10 (1991).
153. This evidence would be used to place the defendant's murderous actions into context. See Joelle A. Moreno, Comment, Killing Daddy: Developing a Self-Defense Strategy for the Abused Child, 137 U. PA. L. REV. 1281, 1299 (1989); Susan C. Smith, Comment, Abused Children Who Kill Abusive Parents: Moving Toward an Appropriate Legal Response, 42 CATH. U. L. REV. 141, 152 (1992).
154. This evidence would be used to place the defendant's murderous actions into context. See Joelle A. Moreno, Comment, Killing Daddy: Developing a Self-Defense Strategy for the Abused Child, 137 U. PA. L. REV. 1281, 1299 (1989); Susan C. Smith, Comment, Abused Children Who Kill Abusive Parents: Moving Toward an Appropriate Legal Response, 42 CATH. U. L. REV. 141, 152 (1992).
155. See Mavis J. Van Sambeek, Parricide as Self-Defense, 7 LAW & INEQ. J. 87, 96, 99 (1988); see also State v. Janes, 822 P.2d 1238 (Wash. Ct. App. 1992); Jahnke v. State, 682 P.2d 991 (Wyo. 1984).
156. MONES, supra note 140, at 6. See Van Sambeek, supra note 142, at 89-91, for a discussion of the legal system's inattention to parricide.
157. See MONES, supra note 140, at 24 (reporting over 300 parricides each year since 1976); Van Sambeek, supra note 142, at 89 (stating that "about 400 parricides occur in the United States" every year). Charles Ewing reports that 'virtually all [parricides] involve juveniles killing physically, psychologically, or sexually abusive fathers or stepfathers." CHARLES P. EWING, KIDS WHO KILL, 19 (1990). When children kill their mothers, he reports that "the more severe abuse is usually psychological or sexual rather than physical." Id. at 24.
158. Pertinent literature would not address the historical use of the battered child syndrome, which is limited to the physical context, but the psychological effects of long-term child abuse on its victims. Any such research would parallel that regarding the battered woman syndrome. In fact, commentators considering the admissibility of the psychological effects of battering on children have cited cases and research from the battered woman arena, hoping for an extension of these findings to children. See, e.g., Van Sambeek, supra note 142; Moreno, supra note 141; Smith, supra note 141. Such attempted doctrinal extension is understandable considering the void of information focusing solely on battered children.
159. MONES, supra note 140, at 10.
160. 682 P.2d 991 (Wyo. 1984).
161. Richard Jahnke is the first youth described above. See text accompanying note 140.
162. Jahnke, 682 P.2d at 991.
163. Id.
164. 822 P.2d 1238, 1240, 1242 (Wash. Ct. App. 1992). Paul Mones would agree with the court's view. He has explained that in a typical murder case, "an attorney need only concern herself with events on the day of the killing or perhaps two or three days prior to it. In parricides, [however,] an incident that occurred twelve years before the killing is as important as what took place twelve hours before it." MONES, supra note 140, at 11.
165. The three sources cited by the court as authority for these effects were MONES, supra note 140; Van Sambeek, supra note 142; and Moreno, supra note 141. Janes, 822 P.2d at 1242-43.
166. Janes, 822 P.2d at 1242.
167. MONES, supra note 140, at 12-13 (emphasis in original).
168. See Van Sambeek, supra note 142, at 99; Jamie H. Sacks, Comment, A New Age of Understanding: Allowing Self-Defense Claims for Battered Children Who Kill Their Abusers, 10 J. CONTEMP. HEALTH L. & POL'Y 349, 366-67 n.120 (1994).
169. Janes, 822 P.2d at 1243.
170. In Janes, the court posited that: "Neither law nor logic suggests any reason to limit to women recognition of the impact a battering relationship may have on the victim's actions or perceptions." Id. Although "logic" may not limit the evidence's admissibility in federal courts, under the Daubert "law," a lack of scientific knowledge does. Interestingly, in holding that there was a "sufficient scientific basis to justify extending the battered woman syndrome to analogous situations affecting children," the court merely cited three nonscientific sources. Id. at 1242-43.
171. See Van Sambeek, supra note 142, at 96 n.87; Steven R. Hicks, Comment, Admissibility of Expert Testimony on the Psychology of the Battered Child, 11 L. & PSYCHOL. REV. 103, 106, 126 (1987) (asserting, with no scientific support, that "[t]here is no reason to believe that the same reasoning will not as readily apply to battered children").
172. See supra text accompanying notes 155-56.
173. See, e.g., THE BATTERED CHILD, supra note 138.
174. See, e.g., EWING, supra note 144; MONES, supra note 140; Van Sambeek, supra note 142; Moreno, supra note 141; Smith, supra note 141. Because the articles appear in law reviews, they are not peer reviewed, but student reviewed.
175. See Daubert v. Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786, 2796 (1993).
176. MONAHAN & WALKER, supra note 31, at 48 (emphasis removed).
177. Id. at 50 (emphasis in original).
178. The assumptions which underlie the argument for an extension of the battered woman research are troubling. Perhaps advocates of that extension have implicitly subscribed to the archaic notion that the lesser mental stability and/or emotional strength suffered by women and children make them scientifically interchangeable.