Evidence Issues in Domestic Violence Civil Cases

Family Law Quarterly

Volumn 34, Issue 1, 2000, Pages 43-62

  Aiken, Jane H ^a   Murphy, Jane C ^a  

^a NONE

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EID: 0034561248     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (140)

1. See generally Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 WM. & MARY L. REV. 1505 (1998); Developments in the Law: Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1528-51 (1993). Changes in criminal laws including creating new criminal sanctions to fit the patterns of domestic violence and encouraging the enforcement of existing criminal sanctions in domestic situations have also developed in the last decade. See Bonnie J. Campbell, U.S. Department of Justice, A Message from Violence Against Women Office Director, Bonnie J. Campbell, 1 VIOLENCE AGAINST WOMEN ACT NEWS, July 1996 (last modified July 2, 1996), 〈http://www.usdoj.gov/vawo/newsletter/bjc796.htm〉.
2. See generally Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 WM. & MARY L. REV. 1505 (1998); Developments in the Law: Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1528-51 (1993). Changes in criminal laws including creating new criminal sanctions to fit the patterns of domestic violence and encouraging the enforcement of existing criminal sanctions in domestic situations have also developed in the last decade. See Bonnie J. Campbell, U.S. Department of Justice, A Message from Violence Against Women Office Director, Bonnie J. Campbell, 1 VIOLENCE AGAINST WOMEN ACT NEWS, July 1996 (last modified July 2, 1996), 〈http://www.usdoj.gov/vawo/newsletter/bjc796.htm〉.
3. See generally Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 WM. & MARY L. REV. 1505 (1998); Developments in the Law: Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1528-51 (1993). Changes in criminal laws including creating new criminal sanctions to fit the patterns of domestic violence and encouraging the enforcement of existing criminal sanctions in domestic situations have also developed in the last decade. See Bonnie J. Campbell, U.S. Department of Justice, A Message from Violence Against Women Office Director, Bonnie J. Campbell, 1 VIOLENCE AGAINST WOMEN ACT NEWS, July 1996 (last modified July 2, 1996), 〈http://www.usdoj.gov/vawo/newsletter/bjc796.htm〉.
4. All 50 states and the District of Columbia have some form of protection order statute. These statutes typically provide for eviction of the abuser from the home, temporary child custody, and a prohibition against continued abuse. Some state statutes provide for monetary relief for the duration of the order. The duration of the order varies with each state and ranges from 60 days to 3 years. Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 HOFSTRA L. REV. 801 (1993) [hereinafter Klein & Orloff].
5. See The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197 (1995) [hereinafter the Family Violence Project].
6. Id.
7. See Klein & Orloff, supra note 2, at 812.
8. See, e.g., Eva S. Buzawa & Carl G. Buzawa, Introduction, to DO ARRESTS AND RESTRAINING ORDERS WORK? 1, 1-5 (1996).
9. See LENORE E. WALKER, THE BATTERED WOMAN 210-12 (1979); Molly Chaudhiri & Kathleen Daly, Do Restraining Orders Help? Battered Women's Experience with Male Violence and Legal Process, in DOMESTIC VIOLENCE 227, 245-47 (1992); Janice Grau et al., Restraining Orders for Battered Women: Issues of Access and Efficacy, 4 WOMEN & POL. 13, 19-20 (1984) (concluding that protection orders are most effective in curtailing abuse when the level of violence is not severe); Lisa G. Lerman, A Model State Act: Remedies for Domestic Abuse, 21 HARV. J. ON LEGIS. 61, 70 n.35 (1984).
10. See LENORE E. WALKER, THE BATTERED WOMAN 210-12 (1979); Molly Chaudhiri & Kathleen Daly, Do Restraining Orders Help? Battered Women's Experience with Male Violence and Legal Process, in DOMESTIC VIOLENCE 227, 245-47 (1992); Janice Grau et al., Restraining Orders for Battered Women: Issues of Access and Efficacy, 4 WOMEN & POL. 13, 19-20 (1984) (concluding that protection orders are most effective in curtailing abuse when the level of violence is not severe); Lisa G. Lerman, A Model State Act: Remedies for Domestic Abuse, 21 HARV. J. ON LEGIS. 61, 70 n.35 (1984).
11. See LENORE E. WALKER, THE BATTERED WOMAN 210-12 (1979); Molly Chaudhiri & Kathleen Daly, Do Restraining Orders Help? Battered Women's Experience with Male Violence and Legal Process, in DOMESTIC VIOLENCE 227, 245-47 (1992); Janice Grau et al., Restraining Orders for Battered Women: Issues of Access and Efficacy, 4 WOMEN & POL. 13, 19-20 (1984) (concluding that protection orders are most effective in curtailing abuse when the level of violence is not severe); Lisa G. Lerman, A Model State Act: Remedies for Domestic Abuse, 21 HARV. J. ON LEGIS. 61, 70 n.35 (1984).
12. See LENORE E. WALKER, THE BATTERED WOMAN 210-12 (1979); Molly Chaudhiri & Kathleen Daly, Do Restraining Orders Help? Battered Women's Experience with Male Violence and Legal Process, in DOMESTIC VIOLENCE 227, 245-47 (1992); Janice Grau et al., Restraining Orders for Battered Women: Issues of Access and Efficacy, 4 WOMEN & POL. 13, 19-20 (1984) (concluding that protection orders are most effective in curtailing abuse when the level of violence is not severe); Lisa G. Lerman, A Model State Act: Remedies for Domestic Abuse, 21 HARV. J. ON LEGIS. 61, 70 n.35 (1984).
13. Domestic violence is still a significant national problem. See generally U.S. DEP'T OF JUSTICE BUREAU OF JUSTICE STATISTICS, VIOLENCE AGAINST WOMEN: A NATIONAL CRIME VICTIMIZATION SURVEY REPORT (1994).
14. Sarah J. Lee, The Search for Truth: Admitting Evidence of Prior Abuse in Cases of Domestic Violence, 20 U. HAW. L. REV. 221, 252 (1998) [hereinafter The Search for Truth] (describing the unequal power and control in abusive relationships, which leads to victims recanting their allegations. This results in a "heightened" necessity for admitting evidence of prior abuse in domestic violence cases.); Lisa Marie DeSanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 YALE J.L. & FEMINISM 359, 367-68 (1996) (finding that victims of domestic violence are uncooperative in approximately 80 to 90% of criminal prosecutions).
15. Sarah J. Lee, The Search for Truth: Admitting Evidence of Prior Abuse in Cases of Domestic Violence, 20 U. HAW. L. REV. 221, 252 (1998) [hereinafter The Search for Truth] (describing the unequal power and control in abusive relationships, which leads to victims recanting their allegations. This results in a "heightened" necessity for admitting evidence of prior abuse in domestic violence cases.); Lisa Marie DeSanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 YALE J.L. & FEMINISM 359, 367-68 (1996) (finding that victims of domestic violence are uncooperative in approximately 80 to 90% of criminal prosecutions).
16. JAMES PTACEK, BATTERED WOMEN IN THE COURTROOM (1999).
17. See, e.g., Comment, Prosecuting Domestic Crimes: Effectively Using Rule 404(b) to Hold Batterers Accountable for Repeated Abuse, 34 GONZ. L. REV. 361, 365 (1998).
18. See, e.g., Joan M. Schroeder, Using Battered Woman Syndrome Evidence in the Prosecution of the Batterer, 76 IOWA L. REV. 553 (1991); Audrey E. Stone & Karla M. Digirolama, Battered Women's Expert Testimony, Past and Present, 271 PLI/EST 181 (1998).
19. See, e.g., Joan M. Schroeder, Using Battered Woman Syndrome Evidence in the Prosecution of the Batterer, 76 IOWA L. REV. 553 (1991); Audrey E. Stone & Karla M. Digirolama, Battered Women's Expert Testimony, Past and Present, 271 PLI/EST 181 (1998).
20. See, e.g., Henderson v. Henderson, 2000 WL 356315 (Ala. Civ. App. 2000) (admitting testimony of domestic violence expert who described the characteristics of domestic violence and stated victims often remain in abusive relationship or remain silent about the abuse).
21. Courts have noted the usefulness of expert opinion. For example, in Pratt v. Wood, 210 A.D.2d 741, 743 (N. Y. App. Div. 1994), the court held that expert testimony in the field of domestic violence was generally admissible because the average person is uneducated on the psychological and behavioral characteristics typically shared by victims of abuse in a familial setting.
22. See, e.g., People v. Gomez, 85 Cal. Rptr. 2d 101 (Cal. Ct. App. 1999). In Gomez, the court found that the expert testimony explaining the victim's recantation had to be excluded and before such testimony could be credited, the prosecution had to prove that the victim suffered from battered women's syndrome.
23. The battered women's syndrome has come under significant criticism in recent years. Many critics suggest that it perpetuates negative stereotypes about victims of violence and tends to pathologize their natural reactions to abuse. See, e.g., DONALD DOWNS, MORE THAN VICTIMS: BATTERED WOMEN, THE SYNDROME SOCIETY, AND THE LAW (1998); EDWARD GONDOLF & ELLEN FISHER, BATTERED WOMEN AS SURVIVORS: AN ALTERNATIVE TO TREATING LEARNED HELPLESSNESS (1988); Pamela Posch, The Negative Effects of Expert Testimony on the Battered Women's Syndrome, 6 AM. U.J. GENDER & L. 485 (1998); Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991).
24. The battered women's syndrome has come under significant criticism in recent years. Many critics suggest that it perpetuates negative stereotypes about victims of violence and tends to pathologize their natural reactions to abuse. See, e.g., DONALD DOWNS, MORE THAN VICTIMS: BATTERED WOMEN, THE SYNDROME SOCIETY, AND THE LAW (1998); EDWARD GONDOLF & ELLEN FISHER, BATTERED WOMEN AS SURVIVORS: AN ALTERNATIVE TO TREATING LEARNED HELPLESSNESS (1988); Pamela Posch, The Negative Effects of Expert Testimony on the Battered Women's Syndrome, 6 AM. U.J. GENDER & L. 485 (1998); Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991).
25. The battered women's syndrome has come under significant criticism in recent years. Many critics suggest that it perpetuates negative stereotypes about victims of violence and tends to pathologize their natural reactions to abuse. See, e.g., DONALD DOWNS, MORE THAN VICTIMS: BATTERED WOMEN, THE SYNDROME SOCIETY, AND THE LAW (1998); EDWARD GONDOLF & ELLEN FISHER, BATTERED WOMEN AS SURVIVORS: AN ALTERNATIVE TO TREATING LEARNED HELPLESSNESS (1988); Pamela Posch, The Negative Effects of Expert Testimony on the Battered Women's Syndrome, 6 AM. U.J. GENDER & L. 485 (1998); Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991).
26. The battered women's syndrome has come under significant criticism in recent years. Many critics suggest that it perpetuates negative stereotypes about victims of violence and tends to pathologize their natural reactions to abuse. See, e.g., DONALD DOWNS, MORE THAN VICTIMS: BATTERED WOMEN, THE SYNDROME SOCIETY, AND THE LAW (1998); EDWARD GONDOLF & ELLEN FISHER, BATTERED WOMEN AS SURVIVORS: AN ALTERNATIVE TO TREATING LEARNED HELPLESSNESS (1988); Pamela Posch, The Negative Effects of Expert Testimony on the Battered Women's Syndrome, 6 AM. U.J. GENDER & L. 485 (1998); Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991).
27. See, e.g., Paula Finley Mangum, Note, Reconceptualizing Battered Woman Syndrome Evidence: Prosecution Use of Expert Testimony on Battering, 19 B.C. THIRD WORLD L.J. 593 (1999) (exploring and evaluating the use of expert testimony in the prosecution of a batterer); Cynthia Lynn Barnes, Supplement Annotation, Admissibility of Expert Testimony Concerning Domestic-Violence Syndromes to Assist Jury in Evaluating Victim's Testimony or Behavior, 57 A.L.R.5TH 315 (1998) (collecting and analyzing criminal cases in which the courts considered whether and when expert testimony regarding domestic-violence syndromes may be used to assist the jury in evaluating a victim's testimony or conduct); Audrey E. Stone, Presenting Battered Women's Expert Testimony: Trial and Error, in HANDLING THE DOMESTIC VIOLENCE CASE 1998, at 255 (PLI New York Practice Skills Course Handbook Series No. F0- 001V, 1998) (discussing that prosecutors increasingly find it useful to use experts in domestic violence cases to explain the conduct of a victim, such as when a victim recants, changes her story, or continues to live with the perpetrator); Janet Parrish, Trend Analysis: Expert Testimony on Battering and Its Effects in Criminal Cases, 11 WIS. WOMEN'S L.J. 75 (1996) (providing information and analysis about expert testimony in cases involving battered women); Steven I. Platt, Women Accused of Homicide: The Use of Expert Testimony on Effect of Battering on Women - A Trial Judge's Perspective, 25 U. BALT. L. REV. 33 (1995) (recounting the pertinent facts and dispositions of sample cases in which the defense could be used).
28. See, e.g., Paula Finley Mangum, Note, Reconceptualizing Battered Woman Syndrome Evidence: Prosecution Use of Expert Testimony on Battering, 19 B.C. THIRD WORLD L.J. 593 (1999) (exploring and evaluating the use of expert testimony in the prosecution of a batterer); Cynthia Lynn Barnes, Supplement Annotation, Admissibility of Expert Testimony Concerning Domestic-Violence Syndromes to Assist Jury in Evaluating Victim's Testimony or Behavior, 57 A.L.R.5TH 315 (1998) (collecting and analyzing criminal cases in which the courts considered whether and when expert testimony regarding domestic-violence syndromes may be used to assist the jury in evaluating a victim's testimony or conduct); Audrey E. Stone, Presenting Battered Women's Expert Testimony: Trial and Error, in HANDLING THE DOMESTIC VIOLENCE CASE 1998, at 255 (PLI New York Practice Skills Course Handbook Series No. F0- 001V, 1998) (discussing that prosecutors increasingly find it useful to use experts in domestic violence cases to explain the conduct of a victim, such as when a victim recants, changes her story, or continues to live with the perpetrator); Janet Parrish, Trend Analysis: Expert Testimony on Battering and Its Effects in Criminal Cases, 11 WIS. WOMEN'S L.J. 75 (1996) (providing information and analysis about expert testimony in cases involving battered women); Steven I. Platt, Women Accused of Homicide: The Use of Expert Testimony on Effect of Battering on Women - A Trial Judge's Perspective, 25 U. BALT. L. REV. 33 (1995) (recounting the pertinent facts and dispositions of sample cases in which the defense could be used).
29. See, e.g., Paula Finley Mangum, Note, Reconceptualizing Battered Woman Syndrome Evidence: Prosecution Use of Expert Testimony on Battering, 19 B.C. THIRD WORLD L.J. 593 (1999) (exploring and evaluating the use of expert testimony in the prosecution of a batterer); Cynthia Lynn Barnes, Supplement Annotation, Admissibility of Expert Testimony Concerning Domestic-Violence Syndromes to Assist Jury in Evaluating Victim's Testimony or Behavior, 57 A.L.R.5TH 315 (1998) (collecting and analyzing criminal cases in which the courts considered whether and when expert testimony regarding domestic-violence syndromes may be used to assist the jury in evaluating a victim's testimony or conduct); Audrey E. Stone, Presenting Battered Women's Expert Testimony: Trial and Error, in HANDLING THE DOMESTIC VIOLENCE CASE 1998, at 255 (PLI New York Practice Skills Course Handbook Series No. F0-001V, 1998) (discussing that prosecutors increasingly find it useful to use experts in domestic violence cases to explain the conduct of a victim, such as when a victim recants, changes her story, or continues to live with the perpetrator); Janet Parrish, Trend Analysis: Expert Testimony on Battering and Its Effects in Criminal Cases, 11 WIS. WOMEN'S L.J. 75 (1996) (providing information and analysis about expert testimony in cases involving battered women); Steven I. Platt, Women Accused of Homicide: The Use of Expert Testimony on Effect of Battering on Women - A Trial Judge's Perspective, 25 U. BALT. L. REV. 33 (1995) (recounting the pertinent facts and dispositions of sample cases in which the defense could be used).
30. See, e.g., Paula Finley Mangum, Note, Reconceptualizing Battered Woman Syndrome Evidence: Prosecution Use of Expert Testimony on Battering, 19 B.C. THIRD WORLD L.J. 593 (1999) (exploring and evaluating the use of expert testimony in the prosecution of a batterer); Cynthia Lynn Barnes, Supplement Annotation, Admissibility of Expert Testimony Concerning Domestic-Violence Syndromes to Assist Jury in Evaluating Victim's Testimony or Behavior, 57 A.L.R.5TH 315 (1998) (collecting and analyzing criminal cases in which the courts considered whether and when expert testimony regarding domestic-violence syndromes may be used to assist the jury in evaluating a victim's testimony or conduct); Audrey E. Stone, Presenting Battered Women's Expert Testimony: Trial and Error, in HANDLING THE DOMESTIC VIOLENCE CASE 1998, at 255 (PLI New York Practice Skills Course Handbook Series No. F0- 001V, 1998) (discussing that prosecutors increasingly find it useful to use experts in domestic violence cases to explain the conduct of a victim, such as when a victim recants, changes her story, or continues to live with the perpetrator); Janet Parrish, Trend Analysis: Expert Testimony on Battering and Its Effects in Criminal Cases, 11 WIS. WOMEN'S L.J. 75 (1996) (providing information and analysis about expert testimony in cases involving battered women); Steven I. Platt, Women Accused of Homicide: The Use of Expert Testimony on Effect of Battering on Women - A Trial Judge's Perspective, 25 U. BALT. L. REV. 33 (1995) (recounting the pertinent facts and dispositions of sample cases in which the defense could be used).
31. See, e.g., Paula Finley Mangum, Note, Reconceptualizing Battered Woman Syndrome Evidence: Prosecution Use of Expert Testimony on Battering, 19 B.C. THIRD WORLD L.J. 593 (1999) (exploring and evaluating the use of expert testimony in the prosecution of a batterer); Cynthia Lynn Barnes, Supplement Annotation, Admissibility of Expert Testimony Concerning Domestic-Violence Syndromes to Assist Jury in Evaluating Victim's Testimony or Behavior, 57 A.L.R.5TH 315 (1998) (collecting and analyzing criminal cases in which the courts considered whether and when expert testimony regarding domestic-violence syndromes may be used to assist the jury in evaluating a victim's testimony or conduct); Audrey E. Stone, Presenting Battered Women's Expert Testimony: Trial and Error, in HANDLING THE DOMESTIC VIOLENCE CASE 1998, at 255 (PLI New York Practice Skills Course Handbook Series No. F0- 001V, 1998) (discussing that prosecutors increasingly find it useful to use experts in domestic violence cases to explain the conduct of a victim, such as when a victim recants, changes her story, or continues to live with the perpetrator); Janet Parrish, Trend Analysis: Expert Testimony on Battering and Its Effects in Criminal Cases, 11 WIS. WOMEN'S L.J. 75 (1996) (providing information and analysis about expert testimony in cases involving battered women); Steven I. Platt, Women Accused of Homicide: The Use of Expert Testimony on Effect of Battering on Women - A Trial Judge's Perspective, 25 U. BALT. L. REV. 33 (1995) (recounting the pertinent facts and dispositions of sample cases in which the defense could be used).
32. See, e.g., Pratt v. Wood, 210 A.D.2d 741, 743 (N.Y. App. Div. 1994).
33. Id. See also DONALD G. DUTTON WITH SUSAN K. GOLANT, THE BATTERER: A PSYCHOLOGICAL PROFILE (1995).
34. OHIO R. EVID. 702, OHIO REV. CODE ANN. (Banks-Baldwin 2000).
35. State v. Koss, 551 N.E.2d 970, 973 (Ohio 1990).
36. See Mason Ladd, Expert Testimony, 5 VAND. L. REV. 414 (1952).
37. See General Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997) (holding that the question of admissibility of expert testimony is reviewable under "abuse of discretion" standard).
38. See MARY ANN DUTTON, THE VALIDITY AND USE OF EVIDENCE CONCERNING BATTERING AND ITS EFFECTS IN CRIMINAL TRIALS (Research Report, Washington, D.C.: U.S. Department of Justice, National Institute of Justice and U.S. Department of Health and Human Services, National Institute of Mental Health, NCJ 160972).
39. See, e.g., U.S. v. Bighead, 128 F.3d 1329, 1336 (9th Cir. 1997) (dissenting judge calls into question the objectivity of the expert because she worked for a child advocacy center).
40. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (holding that an inquiry into both relevance and reliability applies not only to "scientific" testimony but to all expert testimony).
41. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993).
42. But see generally David L. Faigman, The Syndromic Lawyer Syndrome: A Psychological Theory of Evidentiary Munificence, 67 U. COLO. L. REV. 817 (1996) (discussing a miscomprehension among lawyers about both the difficulty of doing social science research and the law's proper response when social science is difficult to conduct).
43. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test still remains quite viable in many states. Essentially, in order for expert opinion to be admitted it must be scientific knowledge and method that is generally accepted among the relevant scientific authorities. This test places part of the decision about whether this evidence is "reliable" outside the court and within the purview of scientists.
44. CAL. EVID. CODE § 1107 (West 1995) provides in pertinent part: (a) in a criminal action, expert testimony is admissible . . . regarding battered women's syndrome, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence . . . (b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on battered women's syndrome shall not be considered a new scientific technique whose reliability is unproven.
45. Keesee v. Keesee, 675 So. 2d 655, 659 (Fla. Dist. Ct. App. 1996) (Griffin, J. concurring).
46. See generally Myrna Raeder, The Better Way: The Role of Batterers' Profiles and Expert "Social Framework" Background in Cases Implicating Domestic Violence, 68 U. COLO. L. REV. 147 (1997) (proposing a reformulated model for the use of expert testimony in domestic violence related cases wherein prosecutors would be permitted to introduce domestic violence social science framework evidence that is not syndrome or profile oriented in order to level the evidentiary playing field and provide a background against which domestic violence evidence can be understood at trial).
47. See, e.g., Garces v. Garces, 704 So. 2d 1106, 1107 (Fla. Dist. Ct. App. 1998) (The wife's expert psychologist testified about the wife's psychological condition as a result of domestic abuse. The psychologist recommended that the wife consult with a psychiatrist at least once monthly and that the wife should attend individual therapy twice a week for at least a few years. The trial court included in the final judgment the following provision: "The husband shall be required to pay any presently outstanding and all reasonable future medical, psychological, psychiatric, counseling and medication expenses for care and treatment required by the wife as a result of his egregious conduct which are not covered by her medical insurance and for those items which are covered, the husband shall be responsible for any uncovered portions, including payment of any deductibles").
48. Sometimes the judge does not need an expert to see the risks posed by placing the child with a violent person. See, e.g., Berg v. Berg, 606 N.W.2d 895, 899 (N.D. 2000) (Although the statute places a heavy burden of proof - clear and convincing evidence - upon the perpetrator of domestic violence to show unsupervised visitation will not harm the child, the statute imposes no burden on the custodial parent to prove, by expert testimony or otherwise, that unsupervised visitation with the more violent parent will in fact harm the child).
49. The Link Between Child Abuse and Domestic Violence, CHILD PROTECTION LEADER (American Humane Association 1994).
50. Id.
51. See, e.g., In re Lonell J., 673 N.Y.S.2d 116 (N.Y. App. Div. 1998) (holding expert testimony is allowed but not required to prove effects of domestic violence on child's emotional and mental state); In re Marriage of Brainard, 523 N.W.2d 611 (Iowa Ct. App. 1994) (admitting expert testimony to detail the tragic and long-term consequences of spousal abuse on children who witness the violence); In re Marriage of Houtchens, 760 P.2d 71 (Mont. 1988) (allowing expert in field of social work and domestic violence to testify that children are at risk living with men who batter, both because of the likelihood that the child will be battered and the likelihood that the child will rely on that person as a role model); Chafin v. Rude, 391 N.W.2d 882 (Minn. Ct. App. 1986) (allowing court appointed expert to testify that domestic violence jeopardized the child's emotional development).
52. See, e.g., In re Lonell J., 673 N.Y.S.2d 116 (N.Y. App. Div. 1998) (holding expert testimony is allowed but not required to prove effects of domestic violence on child's emotional and mental state); In re Marriage of Brainard, 523 N.W.2d 611 (Iowa Ct. App. 1994) (admitting expert testimony to detail the tragic and long-term consequences of spousal abuse on children who witness the violence); In re Marriage of Houtchens, 760 P.2d 71 (Mont. 1988) (allowing expert in field of social work and domestic violence to testify that children are at risk living with men who batter, both because of the likelihood that the child will be battered and the likelihood that the child will rely on that person as a role model); Chafin v. Rude, 391 N.W.2d 882 (Minn. Ct. App. 1986) (allowing court appointed expert to testify that domestic violence jeopardized the child's emotional development).
53. See, e.g., In re Lonell J., 673 N.Y.S.2d 116 (N.Y. App. Div. 1998) (holding expert testimony is allowed but not required to prove effects of domestic violence on child's emotional and mental state); In re Marriage of Brainard, 523 N.W.2d 611 (Iowa Ct. App. 1994) (admitting expert testimony to detail the tragic and long-term consequences of spousal abuse on children who witness the violence); In re Marriage of Houtchens, 760 P.2d 71 (Mont. 1988) (allowing expert in field of social work and domestic violence to testify that children are at risk living with men who batter, both because of the likelihood that the child will be battered and the likelihood that the child will rely on that person as a role model); Chafin v. Rude, 391 N.W.2d 882 (Minn. Ct. App. 1986) (allowing court appointed expert to testify that domestic violence jeopardized the child's emotional development).
54. See, e.g., In re Lonell J., 673 N.Y.S.2d 116 (N.Y. App. Div. 1998) (holding expert testimony is allowed but not required to prove effects of domestic violence on child's emotional and mental state); In re Marriage of Brainard, 523 N.W.2d 611 (Iowa Ct. App. 1994) (admitting expert testimony to detail the tragic and long-term consequences of spousal abuse on children who witness the violence); In re Marriage of Houtchens, 760 P.2d 71 (Mont. 1988) (allowing expert in field of social work and domestic violence to testify that children are at risk living with men who batter, both because of the likelihood that the child will be battered and the likelihood that the child will rely on that person as a role model); Chafin v. Rude, 391 N.W.2d 882 (Minn. Ct. App. 1986) (allowing court appointed expert to testify that domestic violence jeopardized the child's emotional development).
55. DOMESTIC VIOLENCE & THE COURTROOM: UNDERSTANDING THE PROBLEM, KNOWING THE VICTIM (American Judges' Foundation).
56. See Faries v. Faries, 607 So. 2d 1204, 1208 (Miss. 1992) (clinical social worker testified (1) that victim struggled with low self-esteem, (2) that her low coping skills indicated her husband emotionally abused her, and (3) that her condition would not prevent her from caring for the children).
57. See, e.g., In the Matter of J.D. v. N.D, 652 N.Y.S.2d 468 (N.Y. Fam. Ct. 1996) (finding that the respondent was engaging in protective behavior in response to the petitioner's exercise of power and control over her).
58. Windham v. Windham, 616 So. 2d 276, 297 (La. Ct. App. 1993).
59. Faries v. Faries, 607 So. 2d 1204, 1210 (Miss. 1992).
60. In order to qualify for the "learned treatise" exception to the hearsay rule, an expert must testify and affirm that the treatise is authoritative, or the party offering the treatise must prove its reliable authority by another expert or by judicial notice. This essentially allows the party to offer the information through an expert and minimize the costs of production of an expert or allows a party to cross examine that expert without having to hire a battling expert. See FED. R. EVID. § 803(18) (West 2000).
61. An excited utterance is admissible if the statement relates to a startling event and is made while under the stress of that excitement. See FED. R. EVID. § 803(2).
62. Many jurisdictions are using "victimless prosecution" strategies thus necessitating creative application of the hearsay exceptions. Some states are even creating evidentiary rules that reduce the reliance on victims in these prosecutions. See CAL. EVID. CODE § 1370 (1997). This evidentiary rule allows the admission of hearsay statements in a domestic violence case if such a statement narrates, describes, or explains the infliction of threat of physical injury and the declarant is unavailable to testify. The statement must have been made within at least five years of the infliction of injury and must be written, electronically recorded, or provided to a law enforcement official.
63. For an detailed and thoughtful discussion of "victimless prosecutions," see Cheryl Hanna, No Right to Choose, Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849 (1996).
64. A public record generally requires either the testimony of a custodian of records, a document under seal, or, in some states, a "business record affidavit" establishing the authenticity of the document. The document must be produced by a public agency and generally includes reports setting forth the activities of the office or agency, matters observed pursuant to duty imposed by law as to which matters there is a duty to report (this likely covers the police report at the scene) or factual findings resulting from an investigation made pursuant to authority granted by law. See FED. R. EVID. § 803(8).
65. Missouri like many states allows the introduction of business records without the custodian provided the party offering the business record has an affidavit from the custodian of record swearing to the foundation and timely notice is given to the opposing party. See MO. REV. STAT. § 490.680 (1999).
66. Generally, police reports cannot be used against criminal defendants in criminal actions due to their confrontation clause implications.
67. Actual physical violence is not required to prove that the event was "startling" for purposes of establishing an excited utterance. A threat should be enough. See Donna M. Matthews, Making the Connection: A Proposed Threat Hearsay Exception, 27 GOLDEN GATE U. L. REV. 117, 138 (1997).
68. See, e.g., Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988); State v. Woodward, 908 P.2d 231 (N.M. 1995); State v. Anderson 723 P.2d 464 (Wash. Ct. App. 1986).
69. See, e.g., Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988); State v. Woodward, 908 P.2d 231 (N.M. 1995); State v. Anderson 723 P.2d 464 (Wash. Ct. App. 1986).
70. See, e.g., Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988); State v. Woodward, 908 P.2d 231 (N.M. 1995); State v. Anderson 723 P.2d 464 (Wash. Ct. App. 1986).
71. The state of mind exception to the hearsay rule admits any statements by a declarant that concerns that declarant's then existing state of mind, emotion sensation, or physical condition. This includes statements of intent, plan, motive, design, mental feeling, pain, or bodily health but not statements of past condition. See, e.g., FED. R. EVID. § 803(3) (West 2000).
72. Statements for purposes of medical diagnosis or treatment include statements describing present symptoms and past medical history as long as the statements are designed to elicit medical care. This certainly covers statements made to a treating physician that are pertinent to diagnosis or treatment. If the victim seeks care through the police officer taking the call, then her statements might qualify for an exception. However, if she merely is reporting the events and not seeking medical care then the statements will not qualify. See, e.g., FED. R. EVID. § 803(4) (West 2000).
73. See MO. REV. STAT. § 455.060(3) (1999) (mandating that findings in an order of protection hearing are not res judicata).
74. See A. HARRELL ET AL., COURT PROCESSING AND THE EFFECTS OF RESTRAINING ORDERS FOR DOMESTIC VIOLENCE VICTIMS (Urban Institute 1993).
75. In the majority of state courts, the "law of evidence" has been incorporated into a code of evidence. In many of these codes, the section numbers and content conform with the Federal Rules of Evidence. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, MODERN EVIDENCE 51.2 at 4 (1994). The references in the Article to Rule 404(b) evidence refers to evidence of other acts of abuse. About a dozen states have no comprehensive code of evidence but rather an amalgam of rules derived from case law, statutes, and constitutionally based rules. In these states case law has developed which defines the parameters of the exclusion of prior bad act evidence. Id.
76. In the majority of state courts, the "law of evidence" has been incorporated into a code of evidence. In many of these codes, the section numbers and content conform with the Federal Rules of Evidence. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, MODERN EVIDENCE 51.2 at 4 (1994). The references in the Article to Rule 404(b) evidence refers to evidence of other acts of abuse. About a dozen states have no comprehensive code of evidence but rather an amalgam of rules derived from case law, statutes, and constitutionally based rules. In these states case law has developed which defines the parameters of the exclusion of prior bad act evidence. Id.
77. FED. R. EVID. § 401 & § 402.
78. FED. R. EVID. § 403.
79. FED. R. EVID. § 404(b) states: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Although the evidence is commonly referred to as "prior" crimes or bad acts, the federal rule (and most state counterparts) include evidence of acts committed both before and after the incident at issue in the litigation.
80. EDWARD W. CLEARY ET AL., MCCORMICK ON EVIDENCE § 185, at 637 (5th ed. 1999).
81. Other policy reasons for excluding prior bad act evidence relate primarily to criminal prosecutions for domestic violence and are generally focused on guaranteeing the presumption of innocence. For example, if evidence that a defendant committed a similar crime is admitted, a jury may require less than proof beyond a reasonable doubt because the defendant is not an "innocent" party or, in the case of prior uncharged crimes, because he needs to be punished for the prior act.
82. Edward J. Imwinkelried, The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 OHIO ST. L.J. 575, 576 (1990).
83. The Search for Truth, supra note 9, at 240, citing Anne L. Ganley, Understanding Domestic Violence, in IMPROVING THE HEALTH CARE SYSTEM'S RESPONSE TO DOMESTIC VIOLENCE: A RESOURCE MANUAL FOR HEALTH CARE PROVIDERS 18 (1995).
84. See, e.g., MD. CODE ANN. § 4-501(b)(ii)(requiring inclusion of prior abuse in petitions for protection); MINN. STAT. ANN. § 634 R.634.20 (West 1996); ARIZ. REV. STAT. § 13-3602 (West 2000) ("The court shall issue an order of protection . . . if the court determines that there is reasonable cause to believe . . . the defendant has committed an act of domestic violence within the past year. . . ."); CAL FAM. CODE § 6300 ("an order may be issued to restrain any person for the purpose of preventing a recurrence of domestic violence . . . if an affidavit shows . . . reasonable proof of a past act or acts of abuse").
85. See, e.g., MD. CODE ANN. § 4-501(b)(ii)(requiring inclusion of prior abuse in petitions for protection); MINN. STAT. ANN. § 634 R.634.20 (West 1996); ARIZ. REV. STAT. § 13-3602 (West 2000) ("The court shall issue an order of protection . . . if the court determines that there is reasonable cause to believe . . . the defendant has committed an act of domestic violence within the past year. . . ."); CAL FAM. CODE § 6300 ("an order may be issued to restrain any person for the purpose of preventing a recurrence of domestic violence . . . if an affidavit shows . . . reasonable proof of a past act or acts of abuse").
86. See, e.g., MD. CODE ANN. § 4-501(b)(ii)(requiring inclusion of prior abuse in petitions for protection); MINN. STAT. ANN. § 634 R.634.20 (West 1996); ARIZ. REV. STAT. § 13-3602 (West 2000) ("The court shall issue an order of protection . . . if the court determines that there is reasonable cause to believe . . . the defendant has committed an act of domestic violence within the past year. . . ."); CAL FAM. CODE § 6300 ("an order may be issued to restrain any person for the purpose of preventing a recurrence of domestic violence . . . if an affidavit shows . . . reasonable proof of a past act or acts of abuse").
87. See, e.g., MD. CODE ANN. § 4-501(b)(ii)(requiring inclusion of prior abuse in petitions for protection); MINN. STAT. ANN. § 634 R.634.20 (West 1996); ARIZ. REV. STAT. § 13-3602 (West 2000) ("The court shall issue an order of protection . . . if the court determines that there is reasonable cause to believe . . . the defendant has committed an act of domestic violence within the past year. . . ."); CAL FAM. CODE § 6300 ("an order may be issued to restrain any person for the purpose of preventing a recurrence of domestic violence . . . if an affidavit shows . . . reasonable proof of a past act or acts of abuse").
88. 674 A.2d 951 (Md. Ct. App. 1996).
89. Id. at 258-59. The District of Columbia Court of Appeals has also approved the admission of evidence of prior abuse in protection order cases noting that "a [batterer's] past conduct is . . . perhaps the most important [evidence] of his probable future conduct. . . .This is especially true in the context of a marital or similar relationship." Cruz-Foster v. Foster, 597 A.2d 927, 930 (D.C. Ct. App. 1991) (citation omitted).
90. Id. at 260. The Coburn court also offered a related justification for admitting to prior abuse evidence in noting that the character of the accused as an abuser is at issue in protection order proceedings. Id. at 260-61. Even where the statute does not direct the court to consider history of abuse, it can be argued character is directly at issue in custody and visitation cases where fitness of one or both parents is a primary consideration.
91. Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. 1989) (finding that under the Domestic Abuse Act "past abusive behavior, although not dispositive, is a factor in determining cause for protection").
92. Strollo v. Strollo, 828 P.2d 532 (Utah 1992) (reversing a trial court decision denying a protection order and finding that the language of the protection order statute required the court to consider past abuse).
93. See Family Violence Project, supra note 3.
94. Id.
95. See id. at 204.
96. Id.
97. See, e.g., ARIZ. REV. STAT. § 25-332 (1997); COLO. REV. STAT. ANN. § 14- 10-124 (West 1997); 770 ILL. COMP. STAT. § 5/602 (West 1998); N.H. REV. STAT. ANN. § 458:17(1996); R.I. GEN. LAWS § 15-5-16 (1997); WYO. STAT. ANN. § 20-2- 112, 20-2-113 (Michie 1997).
98. See, e.g., ARIZ. REV. STAT. § 25-332 (1997); COLO. REV. STAT. ANN. § 14-10-124 (West 1997); 770 ILL. COMP. STAT. § 5/602 (West 1998); N.H. REV. STAT. ANN. § 458:17(1996); R.I. GEN. LAWS § 15-5-16 (1997); WYO. STAT. ANN. § 20-2- 112, 20-2-113 (Michie 1997).
99. See, e.g., ARIZ. REV. STAT. § 25-332 (1997); COLO. REV. STAT. ANN. § 14- 10-124 (West 1997); 770 ILL. COMP. STAT. § 5/602 (West 1998); N.H. REV. STAT. ANN. § 458:17(1996); R.I. GEN. LAWS § 15-5-16 (1997); WYO. STAT. ANN. § 20-2- 112, 20-2-113 (Michie 1997).
100. See, e.g., ARIZ. REV. STAT. § 25-332 (1997); COLO. REV. STAT. ANN. § 14- 10-124 (West 1997); 770 ILL. COMP. STAT. § 5/602 (West 1998); N.H. REV. STAT. ANN. § 458:17(1996); R.I. GEN. LAWS § 15-5-16 (1997); WYO. STAT. ANN. § 20-2- 112, 20-2-113 (Michie 1997).
101. See, e.g., ARIZ. REV. STAT. § 25-332 (1997); COLO. REV. STAT. ANN. § 14- 10-124 (West 1997); 770 ILL. COMP. STAT. § 5/602 (West 1998); N.H. REV. STAT. ANN. § 458:17(1996); R.I. GEN. LAWS § 15-5-16 (1997); WYO. STAT. ANN. § 20-2- 112, 20-2-113 (Michie 1997).
102. See, e.g., ARIZ. REV. STAT. § 25-332 (1997); COLO. REV. STAT. ANN. § 14- 10-124 (West 1997); 770 ILL. COMP. STAT. § 5/602 (West 1998); N.H. REV. STAT. ANN. § 458:17(1996); R.I. GEN. LAWS § 15-5-16 (1997); WYO. STAT. ANN. § 20-2-112, 20-2-113 (Michie 1997).
103. See, e.g., DEL. CODE ANN. tit. 13, § 705(a) (1997); FLA. STAT. § 61.13(2)(b)(2) (1997); IDAHO CODE § 32-717 (1997); LA. REV. STAT. ANN. § 9:364(a) (West 1997); MINN. STAT. ANN. § 518.17, subd. 2(d) (West 1997); N.D. CENT. CODE § 14-05-22.3 (1997); OKLA. STAT. tit. 10, § 21.1(d) (West 1997).
104. See, e.g., DEL. CODE ANN. tit. 13, § 705(a) (1997); FLA. STAT. § 61.13(2)(b)(2) (1997); IDAHO CODE § 32-717 (1997); LA. REV. STAT. ANN. § 9:364(a) (West 1997); MINN. STAT. ANN. § 518.17, subd. 2(d) (West 1997); N.D. CENT. CODE § 14-05-22.3 (1997); OKLA. STAT. tit. 10, § 21.1(d) (West 1997).
105. See, e.g., DEL. CODE ANN. tit. 13, § 705(a) (1997); FLA. STAT. § 61.13(2)(b)(2) (1997); IDAHO CODE § 32-717 (1997); LA. REV. STAT. ANN. § 9:364(a) (West 1997); MINN. STAT. ANN. § 518.17, subd. 2(d) (West 1997); N.D. CENT. CODE § 14-05-22.3 (1997); OKLA. STAT. tit. 10, § 21.1(d) (West 1997).
106. See, e.g., DEL. CODE ANN. tit. 13, § 705(a) (1997); FLA. STAT. § 61.13(2)(b)(2) (1997); IDAHO CODE § 32-717 (1997); LA. REV. STAT. ANN. § 9:364(a) (West 1997); MINN. STAT. ANN. § 518.17, subd. 2(d) (West 1997); N.D. CENT. CODE § 14-05-22.3 (1997); OKLA. STAT. tit. 10, § 21.1(d) (West 1997).
107. See, e.g., DEL. CODE ANN. tit. 13, § 705(a) (1997); FLA. STAT. § 61.13(2)(b)(2) (1997); IDAHO CODE § 32-717 (1997); LA. REV. STAT. ANN. § 9:364(a) (West 1997); MINN. STAT. ANN. § 518.17, subd. 2(d) (West 1997); N.D. CENT. CODE § 14-05-22.3 (1997); OKLA. STAT. tit. 10, § 21.1(d) (West 1997).
108. See, e.g., DEL. CODE ANN. tit. 13, § 705(a) (1997); FLA. STAT. § 61.13(2)(b)(2) (1997); IDAHO CODE § 32-717 (1997); LA. REV. STAT. ANN. § 9:364(a) (West 1997); MINN. STAT. ANN. § 518.17, subd. 2(d) (West 1997); N.D. CENT. CODE § 14-05-22.3 (1997); OKLA. STAT. tit. 10, § 21.1(d) (West 1997).
109. See, e.g., DEL. CODE ANN. tit. 13, § 705(a) (1997); FLA. STAT. § 61.13(2)(b)(2) (1997); IDAHO CODE § 32-717 (1997); LA. REV. STAT. ANN. § 9:364(a) (West 1997); MINN. STAT. ANN. § 518.17, subd. 2(d) (West 1997); N.D. CENT. CODE § 14-05-22.3 (1997); OKLA. STAT. tit. 10, § 21.1(d) (West 1997).
110. See, e.g., David M. Gersten, Criminal Practice; Evidentiary Trends In Domestic Violence Cases, 72 FLA. B. J. 65, 67 (1998) (discussing language of Louisiana, Missouri, Oklahoma, Delaware, and Florida custody statutes which direct the court to consider past abuse). In some cases, however, the victim's ability to introduce evidence of past abuse is limited to certain types of evidence such as felony convictions. Id.
111. See, e.g., David M. Gersten, Criminal Practice; Evidentiary Trends In Domestic Violence Cases, 72 FLA. B. J. 65, 67 (1998) (discussing language of Louisiana, Missouri, Oklahoma, Delaware, and Florida custody statutes which direct the court to consider past abuse). In some cases, however, the victim's ability to introduce evidence of past abuse is limited to certain types of evidence such as felony convictions. Id.
112. Id. Delaware requires a felony or serious misdemeanor. See DEL. CODE ANN. tit. 13, § 705A (1997). Florida requires a conviction for a second degree felony or higher to establish a rebuttable presumption what will preclude joint custody. See FLA. STAT. § 61.13(2)(b)(2) (1993).
113. Id. Delaware requires a felony or serious misdemeanor. See DEL. CODE ANN. tit. 13, § 705A (1997). Florida requires a conviction for a second degree felony or higher to establish a rebuttable presumption what will preclude joint custody. See FLA. STAT. § 61.13(2)(b)(2) (1993).
114. Id. Delaware requires a felony or serious misdemeanor. See DEL. CODE ANN. tit. 13, § 705A (1997). Florida requires a conviction for a second degree felony or higher to establish a rebuttable presumption what will preclude joint custody. See FLA. STAT. § 61.13(2)(b)(2) (1993).
115. IDAHO CODE § 32-717(1997).
116. See, e.g., Simmons v. Simmons, 649 So. 2d 799 (La. Ct. App. 1995); Hamilton v. Hamilton, 886 S.W2d 711 (Mo. Ct. App. 1994); Brown v. Brown, 867 P.2d 477 (Okla. 1993).
117. See, e.g., Simmons v. Simmons, 649 So. 2d 799 (La. Ct. App. 1995); Hamilton v. Hamilton, 886 S.W2d 711 (Mo. Ct. App. 1994); Brown v. Brown, 867 P.2d 477 (Okla. 1993).
118. See, e.g., Simmons v. Simmons, 649 So. 2d 799 (La. Ct. App. 1995); Hamilton v. Hamilton, 886 S.W2d 711 (Mo. Ct. App. 1994); Brown v. Brown, 867 P.2d 477 (Okla. 1993).
119. OKLA. STAT. tit. 43, § 112.2 (1997).
120. See, e.g., FED. R. EVID. 404(b), supra note 59.
121. 593 A.2d 186 (D.C. 1991). See also State v. Featherman, 651 P.2d 868 (Ariz. Ct. App. 1982) (acknowledging the significance of understanding the pattern of abuse in the relationship of the defendant and victim to prove both motive and intent); People v. Thompson, 314 N.W.2d 606 (Mich. Ct. App. 1981) (evidence of prior bad acts, such as threats to kill the victim, admissible to establish motive for assault with intent to do great bodily harm).
122. 593 A.2d 186 (D.C. 1991). See also State v. Featherman, 651 P.2d 868 (Ariz. Ct. App. 1982) (acknowledging the significance of understanding the pattern of abuse in the relationship of the defendant and victim to prove both motive and intent); People v. Thompson, 314 N.W.2d 606 (Mich. Ct. App. 1981) (evidence of prior bad acts, such as threats to kill the victim, admissible to establish motive for assault with intent to do great bodily harm).
123. 593 A.2d 186 (D.C. 1991). See also State v. Featherman, 651 P.2d 868 (Ariz. Ct. App. 1982) (acknowledging the significance of understanding the pattern of abuse in the relationship of the defendant and victim to prove both motive and intent); People v. Thompson, 314 N.W.2d 606 (Mich. Ct. App. 1981) (evidence of prior bad acts, such as threats to kill the victim, admissible to establish motive for assault with intent to do great bodily harm).
124. No. BA 0 9 7211 (Cal. App. Dep't Super. Ct., Oct. 3, 1995).
125. David Margolick, Prosecutors Win Key Simpson Fight: Judge Allows Most Material About Domestic Violence, N.Y. TIMES, Jan. 19, 1995, at B8.
126. Lisa A. Linsky, Use of Domestic Violence History Evidence in the Criminal Prosecution: A Common Sense Approach, 16 PACE L. REV. 73, 74 (1995). Of course, in this case such evidence did not lead to conviction but in many cases it would.
127. Klein & Orloff, supra note 2, at 848-876.
128. 229 Cal. Rptr. 317, 310 (Cal. Ct. App. 1986). The decision was a departure from prior precedent which permitted evidence of prior crimes to prove a defendant's identity only where the characteristics of the prior bad acts are similar enough to the charged crime to raise an inference that the crime was committed by the same person. Id.
129. 229 Cal. Rptr. 317, 310 (Cal. Ct. App. 1986). The decision was a departure from prior precedent which permitted evidence of prior crimes to prove a defendant's identity only where the characteristics of the prior bad acts are similar enough to the charged crime to raise an inference that the crime was committed by the same person. Id.
130. See, e.g., People v. Santarelli, 401 N.E.2d 199 (N.Y. 1980) (evidence of prior bad acts may be admitted in anticipation of disproving defendant's anticipated abuse that he was legally insane at the time of the crime); Solomon v. State, 646 A.2d 1064, 1082-83 (Md. Spec. Ct. App. 1994) (evidence of prior crimes may be admitted to counter anticipated defense).
131. See, e.g., People v. Santarelli, 401 N.E.2d 199 (N.Y. 1980) (evidence of prior bad acts may be admitted in anticipation of disproving defendant's anticipated abuse that he was legally insane at the time of the crime); Solomon v. State, 646 A.2d 1064, 1082-83 (Md. Spec. Ct. App. 1994) (evidence of prior crimes may be admitted to counter anticipated defense).
132. Clare Dalton, Domestic Violence, Domestic Torts and Divorce: Constraints and Possibilities, 31 NEW ENG. L. REV. 319, 366 (1997), citing Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041, 1085 (1991); see also Roberta L. Valente, Addressing Domestic Violence: The Role of the Family Law Practitioner, 29 FAM. L.Q. 187, 191 (1995).
133. Clare Dalton, Domestic Violence, Domestic Torts and Divorce: Constraints and Possibilities, 31 NEW ENG. L. REV. 319, 366 (1997), citing Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041, 1085 (1991); see also Roberta L. Valente, Addressing Domestic Violence: The Role of the Family Law Practitioner, 29 FAM. L.Q. 187, 191 (1995).
134. Clare Dalton, Domestic Violence, Domestic Torts and Divorce: Constraints and Possibilities, 31 NEW ENG. L. REV. 319, 366 (1997), citing Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041, 1085 (1991); see also Roberta L. Valente, Addressing Domestic Violence: The Role of the Family Law Practitioner, 29 FAM. L.Q. 187, 191 (1995).
135. CAL. EVID. CODE § 1109 (a) (1997) provides: [I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 30 days before the scheduled date of trial or at a later time as the court may allow for good cause. (c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other section of this code statute or case law. (d) As used in this section, "domestic violence" has the meaning set forth in section 6211 of the Family Code meaning set forth in Section 13700 of the Penal Code. (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.
136. For opposing views on FED. R. EVID. 413-414, compare Bridging the Gap, supra note 9, with James L. McCandless, Prior Bad Acts and Two Bad Rules: The Fundamental Unfairness of Federal Rules of Evidence, 413 and 414, 5 WM. & MARY BILL RTS. J. 689 (1997).
137. For opposing views on FED. R. EVID. 413-414, compare Bridging the Gap, supra note 9, with James L. McCandless, Prior Bad Acts and Two Bad Rules: The Fundamental Unfairness of Federal Rules of Evidence, 413 and 414, 5 WM. & MARY BILL RTS. J. 689 (1997).
138. For opposing views on FED. R. EVID. 413-414, compare Bridging the Gap, supra note 9, with James L. McCandless, Prior Bad Acts and Two Bad Rules: The Fundamental Unfairness of Federal Rules of Evidence, 413 and 414, 5 WM. & MARY BILL RTS. J. 689 (1997).
139. See, e.g., Bridging the Gap, supra note 9, at 381.
140. Proposals to follow California's lead and adopt rules admitting prior abuse evidence in domestic violence cases are being developed in other states as well. See, e.g., The Search for Truth, supra note 9 (describing a proposal for an evidentiary rule for Hawaii which would broadly admit prior abuse evidence in domestic violence cases).