Validity and Use of Evidence Concerning Battering.
and Its Effects in Criminal Trials


MENU TITLE: Battering and Its Effects
Series: NIJ Report to Congress
Published: May 1996
166 pages
377,127 bytes

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The Validity and Use of Evidence Concerning
Battering and Its Effects in Criminal Trials

Report Responding to Section 40507 of the Violence
Against Women Act

U.S. Department of Justice
Office of Justice Programs
National Institute of Justice

U.S. Department of Health and Human Services
National Institute of Mental Health

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NCJ 160972

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U.S. Department of Justice
Office of Justice Programs

National Institute of Justice
Jeremy Travis
Director

U.S. Department of Health and Human Services
National Institutes of Health

National Institute of Mental Health
Steven E. Hyman, M.D.
Director

This report was supported in part by interagency
agreement 95-IJ-R-025 between the National
Institute of Justice and the State Justice
Institute. Support was also provided by the
National Institute of Mental Health and the
Administration for Children and Families, U.S.
Department of Health and Human Services.

The National Institute of Justice is a component of
the Office of Justice Programs, which also includes
the Bureau of Justice Assistance, Bureau of Justice
Statistics, Office of Juvenile Justice and
Delinquency Prevention, and the Office for Victims
of Crime.

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Organization of the Report

Foreword

Preface

Overview and Highlights

I. Validity of "Battered Women Syndrome" in
Criminal Cases Involving Battered Women

II. Trend Analysis: Expert Testimony on Battering
and Its Effects in Criminal Cases

III. Impact of Evidence Concerning Battering and
Its Effects in Criminal Trials Involving Battered
Women

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Foreword

The passage of the Violence Against Women Act of
1994 (Public Law 103-322, Title IV) signalled a
significant change in our nation's efforts to
control and prevent crimes such as domestic
violence, sexual assault, and stalking. The Act
offers direction for a new collaborative approach
between law enforcement, prosecutors, the courts
and the judiciary, and the medical and health
community, social service agencies, community
leaders, and the private sector. It also offers a
substantial commitment of federal resources to help
the criminal justice system and the communities of
our country build an integrated system to respond
to these crimes and to their victims.

The Act explicitly recognizes that domestic
violence is a serious crime that harms not only its
immediate victims, but also their families,
children, and the larger community. In recent
years, our knowledge about battering and its
effects has grown substantially. There has been a
comparable growth in the introduction and use of
that knowledge as evidence in criminal trials. Much
of the testimony on the effects of battering has
been admitted in criminal trials under the rubric
of "battered woman syndrome," and the term has been
used as a shorthand reference to the body of
scientific and clinical literature that forms the
basis for much expert testimony in domestic
violence cases. To expand understanding of the
research and experience in this area, and how they
are being used in criminal trials, Congress called
for a report on the medical and psychological bases
of battered women's syndrome, the extent to which
such evidence has been considered in criminal
trials, and an assessment by judges, prosecutors,
and defense attorneys of the effects of that
evidence on criminal trials.

The resulting report represents a partnership
effort not only between the Department of Justice
and the Department of Health and Human Services,
but also with the State Justice Institute and the
National Association of Women Judges. The latter
two organizations had a related project under way
and generously shared information being developed
through that effort. This report presents three
papers addressing the three issues specified by
Congress: 1) the medical and psychological validity
of the effects of battering, 2) the extent to which
evidence and expert testimony on this issue have
been admitted in criminal trials; and 3) the
assessment of criminal justice professionals on the
effects of this evidence in criminal trials.

Among the most notable findings was the strong
consensus among the researchers, and also among the
judges, prosecutors, and defense attorneys
interviewed for the assessment, that the term
"battered woman syndrome" does not adequately
reflect the breadth or nature of the scientific
knowledge now available concerning battering and
its effects. There were also concerns that the word
"syndrome" carried implications of a malady or
psychological impairment and, moreover, suggested
that there was a single pattern of response to
battering. Equally important is the clear statement
that there is not a "battered woman's defense" per
se. Expert testimony in these cases, when
introduced by the defense, should be used to
support a battered woman's claim of self-defense or
duress, not to replace it.  

With respect to validity, a review of the research
literature concluded that expert testimony on
battering and its effects can be supported by an
extensive body of scientific and clinical knowledge
about the dynamics of domestic violence and
traumatic stress reactions.  Further, expert
testimony on battering and its effects has been
admitted in each of the 50 states plus the District
of Columbia. The impact of evidence concerning
battering and its effects, as assessed by judges,
prosecutors, defense attorneys, and other experts,
has been to increase recognition in the courtroom
of the problem of domestic violence, to provide
information that assists factfinders in their
deliberations, and to dispel common myths that may
interfere with the factfinders' ability to consider
fairly the issues in the case.

The Violence Against Women Office and the
Department of Justice are committed to assisting
states and localities as they develop comprehensive
systems to respond to the problem of domestic
violence. The appropriate use of expert testimony
in criminal trials is one element of that response,
and this report makes a significant contribution to
it.

Bonnie J. Campbell
Director
Violence Against Women Office
U.S. Department of Justice

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Preface

The Violence Against Women Act, Title IV of the
Violent Crime Control and Law Enforcement Act of
1994 (Public Law 103-322) charts a new direction
for our nation's response to violent crimes against
women. The legislation not only recognizes
explicitly that violence against women is a crime
but also provides guidance for a collaborative
approach to controlling and preventing such crime
and assisting and protecting its victims.

In response to the Act, the National Institute of
Justice (NIJ) is carrying out an extensive research
and evaluation program to develop knowledge about
effective responses to violence against women. One
element of the program involves specific studies
and reports mandated by the legislation.

This report on the scientific and clinical
knowledge about battering and its effects and the
extent and impact of its introduction as evidence
in criminal trials responds to Section 40507 of the
Violence Against Women Act, which directs the
Attorney General and the Secretary of Health and
Human Services to submit a report on these issues.

The development of the report was a genuinely
collaborative process. A working group was formed
with representatives not only from the Department
of Health and Human Services and the Department of
Justice, but also from the State Justice Institute
(SJI) and the National Association of Women Judges.
The National Association of Women Judges was
conducting an SJI-sponsored project, Family
Violence and the Courts: Exploring Expert Testimony
on Battered Women, that addressed many of the same
issues and questions raised by the Congress. Both
organizations generously agreed to collaborate and
to share data developed under their own project;
both have been active members of the working group.
This report is far richer in detail as a result of
that partnership. 

While the language of Section 40507 refers to
"battered women's syndrome," one of the key
findings was the consensus of both the researchers
and the criminal justice professionals consulted
that, given the knowledge now available, a more
accurate and appropriate reference is "evidence
concerning battering and its effects." The report
found an extensive body of research literature,
drawn from a range of disciplines. Expert testimony
on battering and its effects has now been admitted
in all 50 states and the District of Columbia,
although considerable variation among and within
states remains. An analysis of appeals of battered
women defendants found that 63 percent of the
convictions were upheld even though expert
testimony on battering and its effects was admitted
in 70 percent of the cases. Researchers considered
this strong evidence that, contrary to the
contention of some critics, admitting expert
testimony on battering and its effects was not
tantamount to an acquittal. Judges, prosecutors,
and defense attorneys interviewed concerning the
impact of such evidence in criminal trials said
that, within the courtroom, it has increased
recognition of the broader problem of domestic
violence and that its introduction can assist
judges and juries to better understand the issues
and/or dispel myths and stereotypes related to
battered women.

As we seek to develop a strong and integrated
system to respond to the problem of domestic
violence in our communities, NIJ hopes that this
report and the findings of related studies now
under way will not only produce new knowledge but
also provide guidance to criminal justice
professionals on how they can use that knowledge in
their professional duties.

Jeremy Travis
Director
National Institute of Justice

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Overview and Highlights of the Report

Overview

Section 40507 of the Violence Against Women Act
(Title IV of the Violent Crime Control and Law
Enforcement Act of 1994) directs the Attorney
General and the Secretary of Health and Human
Services to transmit to the Congress a report on
the "medical and psychological basis of 'battered
women's syndrome' and the extent to which evidence
of the syndrome has been considered in criminal
trials." The Section stipulates three issues to be
addressed:

1. Medical and psychological testimony on the
validity of battered women's syndrome as a
psychological condition;

2. A compilation of state, tribal, and federal
court cases in which evidence of battered women's
syndrome was offered in criminal trials; and

3. An assessment by state, tribal, and federal
judges, prosecutors, and defense attorneys of the
effects that evidence of battered women's syndrome
may have in criminal trials.

To respond to the legislative directive, an
interdepartmental working group was established. It
drew representatives from the Office of Policy
Development, the Office of Justice Programs, the
National Institute of Justice, and the Bureau of
Justice Statistics of the Department of Justice and
from the National Institute of Mental Health, the
Administration for Children and Families, and the
Office of the Assistant Secretary for Planning and
Evaluation of the Department of Health and Human
Services.

The working group partnership broadened when it was
learned that the State Justice Institute had
awarded a grant to the National Association of
Women Judges to conduct a project on Family
Violence and the Courts: Exploring Expert Testimony
on Battered Women. Given the congruency of concerns
and the similarity of issues being addressed,
representatives from the State Justice Institute
and the National Association of Women Judges joined
the working group. Their project was already under
way and some of its products appeared directly
relevant to Congressional concerns. The Departments
of Justice and Health and Human Services also
supplemented the original State Justice Institute
award to support the development of additional
materials specifically responding to the
legislative directive. The result has been a
productive partnership, yielding a richer
information base than either project might have
produced alone. Major portions of this report build
on work done by the National Association of Women
Judges and its collaborators or draw directly from
it.

Three separate reports address the three key issues
specified in the legislation, and highlights from
each are summarized below. The first, Validity of
"Battered Woman Syndrome" in Criminal Cases
Involving Battered Women, reviews the literature
concerning scientific and clinical knowledge on
battering and its effects, implications of this
scientific knowledge for criminal cases involving
battered women, and the role of expert testimony in
such cases. The information is drawn from the
fields of both domestic violence and traumatic
stress, and reflects work in the disciplines of
psychology, psychiatry, sociology, nursing,
criminal justice, and others. The review concludes
that an extensive body of scientific and clinical
knowledge strongly supports the validity and
relevance of battering as a factor in the reactions
and behavior of victims of domestic violence. It
further reports that such knowledge is relevant at
many points in the criminal justice process, from
charging through sentencing, and that expert
testimony can provide information that helps
factfinders in their deliberations, dispels common
misconceptions, or interprets the behavior of the
battered woman.

The second report, Trend Analysis: Expert Testimony
on Battering and Its Effects in Criminal Cases,
presents 238 state court decisions, 31 federal
court decisions, and 12 state statutes addressing
the admissibility of expert testimony on battering
and its effects. Originally developed for the
National Association of Women Judges' project by
the National Clearinghouse for the Defense of
Battered Women, the report offers a detailed
analysis of individual cases and trends. The
authors found that while much variation remains,
expert testimony on battering and its effects is
admissible or has been admitted without discussion
in each of the 50 states plus the District of
Columbia.

The working group made a separate effort to
identify any tribal court cases in which evidence
on battering and its effects was offered in
criminal trials. The National Indian Justice
Center, the American Indian Law Center, the DNA
People's Legal Services, the National American
Indian Court Judges Association, and the National
Domestic Violence Resource Center were contacted,
and reviews of The Indian Law Reporter and the
Cumulative Tribal Court Topical Index from 1988 -
1995, as well as a Lexis search, were conducted. No
tribal court cases involving expert evidence on
battering and its effects were identified. This is
perhaps not surprising since the use of expert
witnesses is more likely in cases involving serious
felony charges, and felonies arising in Indian
country are generally not tried in tribal courts.

The third report, Impact of Evidence Concerning
Battering and Its Effects in Criminal Trials
Involving Battered Women, presents the results of a
3-day focus group convened by the National
Association of Women Judges and attended by federal
and state court judges, prosecutors, defense
attorneys, expert witnesses, and advocates, as well
as representatives of selected federal agencies.
The group concluded that the most important effect
of such evidence is to assist the factfinders in
considering or understanding other evidence
presented in the case. The strong consensus was
that expert testimony is most likely to clarify the
evidence when it is drawn from the now extensive
body of scientific and clinical knowledge and when
the relationship between the content of the
testimony and the other evidence or issues in the
case is made explicit.

A significant conclusion of all three reports is
the view that the term "battered woman syndrome" is
no longer useful or appropriate. While recognizing
its historical role in the introduction of expert
testimony in this area, the authors of these
reports contend that the term does not reflect the
breadth of empirical knowledge now available
concerning battering and its effects. Each notes
that the phrase "battered woman syndrome" implies
that a single effect or set of effects
characterizes the responses of all battered women,
a position unsupported by the research findings or
clinical experience. They also raise concerns that
the word "syndrome" may be misleading, by carrying
connotations of pathology or disease, or that it
may create a false perception that the battered
woman "suffers from" a mental defect. All preferred
to refer to evidence or expert testimony "on
battering and its effects" and urged the adoption
of this terminology as the standard phrase of
reference.

Highlights of Validity of "Battered Woman Syndrome"
in Criminal Cases Involving Battered Women 

o This report reviews the literature concerning
scientific and clinical knowledge on battering and
its effects, the implications of this scientific
knowledge for criminal cases involving battered
women, and the role of expert testimony in criminal
cases involving battered women.

o The term, "battered woman syndrome" does not
adequately reflect the breadth or nature of the
empirical knowledge about battering and its
effects.

-- A singular construct, such as the term "battered
woman syndrome" is not adequate to encompass the
scientific and clinical knowledge about battering
and its effects that is germane to criminal cases
involving battered women.

-- The term "battered woman syndrome" portrays a
stereotypic image of battered women as helpless,
passive, or psychologically impaired, and battering
relationships as matching a single pattern, which
might not apply in individual cases.

o In criminal court proceedings the dynamics and
effects of battering can become an issue in cases
in which 

-- A battered woman is being tried for a crime and
introduces a defense of self-defense, coercion, or
insanity;

-- A battered woman has been charged with or
convicted of a crime, and evidence of battering or
its effects is offered to reduce the seriousness of
the charges or the severity of the sentence;

-- A batterer is being tried for murder or assault,
and when the defense raises questions about the
battered woman's behavior or responsibility for the
abuse, the prosecution introduces evidence about
battering and its effects to explain the woman's
behavior;

-- Battering is involved in the case, and counsel
wants to address potential myths or misconceptions
about domestic violence that might be held by the
judge or jury.

o Research studies of battering and its effects are
relevant to these legal circumstances, especially
with regard to

-- A battered woman's perception of danger in a
battering relationship, which is relevant to a
defense of self-defense or coercion;

-- The consequences of battering on a woman's state
of mind at the time of the alleged crime that are
relevant to her defense;

-- Patterns of violent and coercive behavior in
battering relationships and a battered woman's
coping behaviors that are relevant to 1) explaining
a battered woman's behavior, such as recanting
testimony or remaining with the batterer; 2)
charging and sentencing a battered woman; and 3)
prosecution of batterers;

o Evidence about a battered woman's experiences and
perceptions of battering, their impact on her, and
her actions associated with battering, can be
introduced and validated or interpreted by expert
testimony.

-- Such expert testimony on battering and its
effects provides relevant information important to
the factfinders for purposes of their deliberations
in criminal cases involving battered women.

-- Expert testimony on battering and its effects
can be based on and supported by an extensive body
of scientific and clinical knowledge on the
dynamics of domestic violence and traumatic stress
reactions.

-- Such expert testimony on the relevance of a
context of battering in criminal proceedings is
admissible, at least to some degree, or has been
admitted in every state.

Highlights of Trend Analysis: Expert Testimony on
Battering and Its Effects in Criminal Cases

o An analysis of 238 state court decisions, 31
federal court decisions, as well as 12 state
statutes addressed the admissibility of expert
testimony on battering and its effects in criminal
trials, the types of cases in which expert
testimony was admitted, the showing necessary to
introduce such testimony, the scope and relevance
of expert testimony, the circumstances under which
such testimony triggers an adverse psychological
examination, and the disposition of cases on
appeal.

o With respect to admissibility, expert testimony
on battering and its effects is admissible, at
least to some degree, or has been admitted (without
any discussion of the standards for admissibility),
in each of the 50 states plus the District of
Columbia.

-- Of the 19 federal courts that have considered
the issue, all but three have admitted expert
testimony on battering and its effects in at least
some cases.

-- Twelve states, moreover, have enacted statutes
providing for admissibility of expert testimony,
although in two states, the courts have interpreted
these statutes in a restrictive fashion, limiting
the admissibility of expert testimony to cases in
which self-defense is claimed.

-- However, 18 states have excluded expert
testimony in some cases. Only in Wyoming is there
still doubt under case law as to the testimony's
admissibility, but Wyoming provides for the
admissibility of expert testimony by statute.

o While the types of case in which expert testimony
on battering and its effects is admitted can vary,
it is most readily accepted by state courts (i.e.,
in 90 percent of the states) in cases involving
traditional self-defense situations.

-- A substantial number of state courts have also
admitted expert testimony in nontraditional self-
defense situations (e.g., when a battered woman
kills her batterer when he is asleep or hires a
third party to kill him), in non-self-defense cases
(e.g., where duress is asserted as a defense), and
when offered by the prosecution (e.g., to explain a
battered woman complainant's prior inconsistent
statements).

-- Of the 19 federal courts admitting expert
testimony, two-thirds have done so in a duress
case, while more than one-third have done so in
traditional self-defense cases.

o With respect to the showing necessary to
introduce expert testimony, nearly 40 percent of
the states require that the defendant raise a self-
defense claim in order to introduce expert
testimony on battering and its effects; one third
of the states have explicitly required that the
proffered expert must be properly qualified as
such.

o Although there is significant consensus among the
courts as to the issues on which expert testimony
on battering and its effects is relevant and
admissible, case-by-case variations also exist
within a given jurisdiction that depend on the
nature of the case, the specific facts of the case,
or the specific issues raised by the defendant on
appeal.

-- Over three-quarters of the states have found
expert testimony admissible to prove the defendant
is a battered woman or that she "suffers from
'battered woman syndrome.'" Almost 70 percent of
the states have found "generic" expert testimony
admissible in order to explain battering and its
effects generally, without reference to a specific
defendant. Twenty percent of the states, however,
explicitly preclude experts from testifying that
the defendant is a battered woman or "suffering
from 'battered woman syndrome.'"

-- Nearly 70 percent of the states have found
expert testimony relevant to supporting a self-
defense claim; nearly 70 percent of the states also
agree that expert testimony is relevant to the
issue of the defendant's state of mind at the time
of the charged crime.

-- Two-thirds of the states consider expert
testimony on battering and its effects relevant to
the question of why the defendant did not leave the
battering relationship or to explain other conduct,
such as acts performed under duress. A similar
proportion of the federal courts have found the
testimony relevant for these purposes.

-- A significant minority of the states have
explicitly noted that the testimony is admissible
to rebut common myths and misperceptions about
battered women (33 percent), to prove a defendant's
diminished capacity or lack of intent (30 percent),
to bolster the defendant's credibility (25
percent), or to show the existence of mitigating
factors in the defendant's favor at the sentencing
phase of the trial (20 percent). A similar
proportion of the federal courts admitting such
expert testimony have also found it relevant for
these purposes.

o Twenty-two percent of the states have ruled on
the issue of whether offering expert testimony on
battering subjects a defendant to an adverse
psychological examination by the prosecution's
expert. All but one found that introducing expert
testimony does trigger an adverse examination. Of
the three federal courts that have considered this
question, two have found that introduction of
expert testimony does subject the defendant to an
adverse examination.

o With respect to case disposition on appeal, the
appeals of 152 battered women defendants in state
courts were analyzed for this study; 63 percent
resulted in affirmance of the conviction and/or
sentence, even though expert testimony on battering
and its effects was admitted or found admissible in
71 percent of the affirmances. 

-- These findings are considered strong evidence
that the defense's use of, or the court's awareness
of, expert testimony on battering and its effects
in no way equates to an acquittal on the criminal
charges lodged against a battered woman defendant.

-- Moreover, of those appeals in state courts that
resulted in reversals, less than half were reversed
because of erroneous exclusion of, limitation of,
or failure of counsel to present, expert testimony.

-- Of the 22 appeals of battered women's cases
heard in federal courts, more than three-quarters
resulted in affirmances of convictions and/or
sentences.

Highlights of Impact of Evidence Concerning
Battering and Its Effects in Criminal Trials
Involving Battered Women

o This report discusses the impact that evidence on
battering and its effects has on criminal trials,
based primarily on the results of a 3-day focus
group conducted with federal and state court
judges, prosecutors, defense attorneys, expert
witnesses, and advocates.

o The introduction of evidence on battering and its
effects has increased recognition in the courtroom
of the problem of domestic violence, and the use of
such testimony has both direct and indirect
effects.

o Direct effects include implications for the
deliberation process and for the disposition of
cases.

-- With respect to the deliberation process, the
major purposes of introducing evidence about
battering and its effects are to assist the triers
of fact in their deliberations about the ultimate
issues or to dispel common myths and
misunderstanding about domestic violence that may
interfere with the factfinders' ability to consider
issues in the case.

-- There was strong agreement among the
participants that expert testimony concerning
battering and its effects can help the factfinder
more effectively evaluate the evidence in criminal
cases involving a battered woman.

-- While recognizing the historical precedent for
using the term "battered woman syndrome" to refer
to such testimony, there was strong consensus that
"battered woman syndrome" is not adequate as a
construct to incorporate the breadth of available
knowledge about battering and its effects that may
be relevant in these cases.

-- The focus group concluded that the notion of a
"syndrome," although descriptive of some battered
women, does not encompass the recognized variation
in battered women's experiences or the body of
scientific knowledge in the field.

-- As an alternative, reference to expert testimony
concerning "battering and its effects" was viewed
as a more useful construct that allows for the
introduction of relevant scientific and clinical
knowledge across various types of criminal cases
involving battered women.

-- With respect to the disposition of cases, a
review of state court cases found that convictions
of battered women were reversed in less than one-
third of the cases appealed and that, of those
reversals, less than half were due to erroneous
exclusion of, limitation of, or failure to present
expert testimony on battering and its effects.

-- These findings suggest that, contrary to popular
misconceptions, the introduction of expert
testimony on battering and its effects does not
equate to acquittal for a battered woman defendant.

o The use of evidence concerning battering has had
significant indirect effects on the judiciary.

-- Introduction of evidence about battering and its
effects has increased both the demand for judicial
education on the topic and the need for judges to
become well-versed in the subject matter of
domestic violence to inform their rulings,
explanations, and jury instructions;

-- Judges also need familiarity with the scientific
methods used in domestic violence research, given
the Daubert decision, which requires that trial
court judges "ensure that any and all scientific
testimony or evidence admitted is not only relevant
but reliable" and demonstrates "a valid scientific
connection to the pertinent inquiry as a
precondition to admissibility."

o The use of evidence about battering and its
effects has indirectly affected both prosecution
and defense counsel, requiring fuller understanding
of the dynamics of domestic violence and
stimulating demand for additional training.

-- The use of evidence about battering and its
effects in self-defense cases led to recognition of
its relevance for other related defenses, such as
duress.

-- Prosecutors rely on expert testimony to explain
the battered victim/witness who recants or is
uncooperative; greater attention is given to issues
of battering and domestic violence at the charging
stage.

o Evidence on battering and its effects also has
had indirect effects on other legal matters, on the
need for resources, and on the broader community.

-- While the use of such evidence in criminal
trials has preceded its use in most other contexts,
it has now been introduced in divorce and custody
cases, in applications for civil protection orders,
in tort actions and contract cases, and in the
evaluation of clemency petitions.

-- Increased awareness of the utility of evidence
related to battering and its effects has created a
perceived need for greater access to expert
witnesses; participants cited the need as two-fold:
1) financial resources to obtain experts and 2)
increased admissibility of expert witness testimony
from non-credentialed persons experienced in
domestic violence (e.g., shelter workers, police
officers, etc.).

-- Evidence about battering and its effects has
influenced changes in state statutes and criminal
codes. Increased awareness of domestic violence has
spurred efforts to improve the community's
response. Domestic violence coordinating councils
are a key development, and comprehensive programs
(such as the Dade County Domestic Violence Plan,
with its unified Domestic Violence Court, and the
Duluth, Minnesota, program, which coordinates the
criminal justice system, mental health agencies,
public health, child welfare, and public and
private employee assistance programs) were cited as
potential models.

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Validity of "Battered Woman Syndrome" in Criminal
Cases Involving Battered Women

This report is an edited version by Malcolm Gordon,
Ph.D., National Institute of Mental Health, of a
review paper prepared by Mary Ann Dutton, Ph.D.,
Professorial Lecturer of Law, National Law Center,
The George Washington University, Washington, D.C. 

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Contents

Introduction

Criminal Case Contexts in Which Battering is an
Issue

 To Support a Defense of Self-Defense
 To Support a Defense of Insanity
 To Support Mitigating Factors in Charging and     
  Sentencing
 To Support a Defense of Duress
 To Support the Prosecution of Crimes Involving 
  Domestic Violence
 To Explain Misconceptions Related to Domestic     
  Violence

The Relevance of Scientific and Clinical Knowledge
Concerning Battering and Its Effects in Criminal
Court Proceedings 

 The Nature and Dynamics of Domestic Violence

  Definition
  Prevalence
  Patterns of violence and abuse

 Battered Woman's Appraisal of Danger
 Negative Psychological Consequences of Domestic   
  Violence
 Behavioral Patterns of Victims of Domestic        
  Battering

  Continued involvement in an abusive relationship

   Economic Factors
   Separation Abuse and Fear of Retaliation
   Emotional Attachment

  Victim's use of physical aggression toward the   
   abuser
  Lack of cooperation in prosecuting the abuser

Critique of "Battered Woman Syndrome"

Expert Testimony in Cases Involving Battered Women

Conclusions

Notes

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Introduction

The Violent Crime Control and Law Enforcement Act
of 1994, Section 40507 of Title IV, the Violence
Against Women Act, mandated a report concerning
"medical and psychological testimony on the
validity of battered women's syndrome as a
condition." Accordingly, the purpose of this report
is to review the literature concerning scientific
and clinical knowledge on battering and its
effects, the implications of this scientific
knowledge for criminal cases involving battered
women, and the role of expert testimony in criminal
cases involving battered women. The relevant
knowledge base includes information about the
nature and dynamics of domestic violence involving
intimate partners, the psychological and social
impact of battering, victims' responses to
battering, and the social and psychological context
in which battering occurs.

------------------------------ 

Criminal Case Contexts in Which Battering is an
Issue

In criminal court proceedings the dynamics and
effects of battering can become issues in: 

o The self-defense or insanity defense of a
battered woman accused of murdering or assaulting
the perpetrator. 

o Charging and sentencing in such cases. 

o The duress defense of a battered woman accused of
criminal or illegal conduct through the instigation
or coercion of a perpetrator.

o The prosecution of cases of domestic violence.

o Addressing misconceptions about domestic violence
that might be held by judge or jury. 

To Support a Plea of Self-Defense

Battered women sometimes use physical force,
including the use of weapons, in response to their
batterers' violent behavior toward them and other
family members. These women may be charged with a
criminal offense. In such cases, the legal defense
of self-defense is often introduced. Of course, not
all women who use violence against an intimate
partner do so in self-defense.

The elements of self-defense in situations where
the effects of battering are particularly relevant
require that the defendant reasonably believed (a)
that deadly force was necessary to protect herself
or others against death or serious bodily harm used
or threatened by the batterer and (b) that the use
of force was immediately necessary to protect
against death or serious bodily injury.1 Most state
courts do not require a duty to retreat, but
factfinders may, nevertheless, find this issue to
be relevant in their deliberations. Thus, evidence
and testimony may be introduced to assist the
triers of fact in deliberations concerning the
specific elements of self-defense.2

To Support a Defense of Insanity

The defense of insanity requires a defendant to
have had a severe mental illness, defect, or
disorder at the time of the alleged criminal acts.
Further, this condition must have impaired the
defendant's mental capacity to such an extent that
either (s)he did not understand the nature and
consequences of what (s)he was doing or did not
understand that what (s)he was doing was wrong.3
Although this defense is used infrequently in cases
involving battered women, it may apply in some
instances. 

An insanity defense claims that the battered
victim's mental capacity was impaired, in contrast
to a defense of self-defense or duress, which
offers that the battered victim acted in response
to a reasonable perception of danger. When the
condition of legal insanity is related to domestic
violence, testimony by experts can be offered to
explain how traumatic reactions and their
associated symptoms may preclude the victim from
knowing right from wrong or appreciating the
consequences of her actions at the time of the
criminal acts.

To Support Mitigating Factors in Charging and
Sentencing

Information about battering and its effects has
been used by prosecutors in determining the
severity of the charge that a battered woman should
face in a trial and, during the sentencing phase,
to show the existence of mitigating factors in the
battered woman's criminal behavior.4 Information
considered in charging and sentencing may include
the history of violence against the battered woman,
the battered woman's efforts to protect herself and
obstacles to those efforts, the social and
psychological impact of violence on her, and the
context in which the violence occurred.5 

To Support a Defense of Duress

Batterers use physical force, intimidation, and
coercion to control their victims' thoughts,
feelings, and behaviors.6 Some women, in an attempt
to avoid further violence and abuse, comply with
the batterer's explicit or implicit demands.7 For
some, compliance means being an accomplice to or
actively engaging in illegal behavior, perhaps
involving drug-related activity, fraud, theft, or
even violence toward others. When a battered woman
has participated in these and other criminal acts
in response to the batterer's coercion, threats, or
actual violence, a defense of duress is often
introduced.

In order to successfully argue a defense of duress,
the judge or jury must find that the defendant
reasonably believed that participating in a crime
(a) was necessary to avoid a specific and immediate
threat of serious harm to self or others and (b)
was the only way to avoid this harm.8 Thus, for a
battered woman to prove duress, she must
demonstrate her reasonable belief that criminal
behavior was necessary in order to avoid the
batterer's violent or abusive behavior. Describing
the pattern, over the course of the relationship,
of a battered woman's compliance in the context of
the batterer's violence or threats can provide a
framework for jury evaluation of whether the
alleged criminal conduct resulted from duress or
coercion.

To Support the Prosecution of Crimes Involving
Domestic Violence

District attorneys may introduce evidence and
testimony on battering and its effects in efforts
to prosecute domestic violence perpetrators.9
Testimony may be used to explain a battered
victim's recantation of an earlier statement, lack
of cooperation with the prosecution, or other
conduct of the victim.10 A battered victim may
recant an earlier statement of abuse, often at the
point when she reconciles with the batterer or when
she is coerced by the batterer by threats of
violence or withdrawal of economic support. In some
cases, a battered woman may recant a self-
incriminating statement only after the batterer has
been arrested, and it is safer to do so. Testimony
can be useful for explaining to the factfinder the
various reasons why battered victims may respond in
these ways.

To Explain Misconceptions Related to Domestic
Violence

Both prosecution and defense attorneys may
introduce testimony to explain to the factfinder
what may be misconceptions about battering and its
effects.11 It has been shown that lay persons
generally hold misconceptions related to domestic
violence.12 These misconceptions, when held by the
triers of fact, can negate either the occurrence or
seriousness of violence, as well as the victim's
response of fear and intimidation.

Determining potential misconceptions relevant to a
particular case depends, obviously, on the facts of
that case. For example, a victim's alcohol or drug-
abuse history may lead the jury to believe,
erroneously, that the victim caused the battering.
In another example, when a battered woman fights
back against the batterer, her behavior could be
construed as evidence of mutual battering, or even
that she was the primary aggressor. Evidence and
testimony can be useful to assist the factfinders
in sorting out these issues.

------------------------------

The Relevance of Scientific and Clinical Knowledge
Concerning Battering and Its Effects in Criminal
Court Proceedings

Following is a brief review of the current
"scientific, technical, or specialized knowledge"13
relevant to criminal cases involving battered
women. As discussed above, battering and its
effects have become an issue primarily in criminal
cases in which (1) a battered woman is being tried
for a crime and introduces a defense of self-
defense, coercion, or insanity, (2) a battered
woman has been charged or convicted of a crime, and
evidence of battering or its effects is offered to
reduce the seriousness of the charges or the
severity of the sentence, or (3) a batterer is
being tried for murder or assault and the battered
woman's behavior or responsibility for the abuse is
raised as part of the defense of the batterer. In
these instances research studies of battering and
its effects are relevant. Research on the dynamics
of battering relationships and on a woman's
perception of danger in such relationships is
pertinent to the defenses of self-defense and
coercion. Studies of the consequences of battering
on a woman's state of mind, including traumatic
stress reactions and disorders associated with
battering, are relevant to an insanity defense and
issues of diminished capacity. Research identifying
patterns of coercive behavior in battering
relationships and a victim's coping behaviors is
relevant to explaining the seemingly dysfunctional
behavior of battered women -- an issue raised in
charging and sentencing battered women and
prosecuting batterers.

This review is representative of the breadth of
current and relevant information. By its nature,
knowledge is in a process of continual revision,14
based on new observations and empirical research
findings. The information presented here is drawn
from the interdisciplinary fields of domestic
violence and traumatic stress, which reflect work
in psychology, psychiatry, sociology, nursing,
criminal justice, and other disciplines.

The Nature and Dynamics of Domestic Violence

Definition 

Domestic violence is defined as a pattern of
coercive control characterized by the use of
physical, sexual, and psychologically abusive
behaviors.15 Additionally, coercion of the domestic
violence victim may be achieved through behaviors
directed toward children, property, pets, or
others.16 Violence or the threat of violence toward
one's children is often a powerful means of
coercing the battered woman. Prior physical or
sexual violence toward the battered woman, or
knowledge of such behavior on the part of the
batterer, enhances the coercive property of the
batterer's subsequent psychologically or
emotionally abusive behaviors.17 For example,
intimidating gestures or comments acquire a very
singular meaning when the batterer has shown a
willingness to actually harm his partner.
Recognizing the variety of coercive behaviors used
by a batterer to exert control over his partner
helps to accurately characterize the relationship
context within which a battered woman's behavior is
considered by the factfinder.

In empirical studies, researchers may
operationalize their definitions of domestic
violence differently. Definitional and other
methodological differences can produce divergent
research results. For example, one study may
examine violence by measuring the occurrence of
aggressive behavior, whereas another may measure
extent of injury. Thus, it is important to
recognize that variations in results from different
empirical studies may reflect methodological
differences rather than contradictions in the
substantive nature of domestic violence issues.

Prevalence

Empirical research supports the conclusion that
physical aggression in intimate relationships is
frequent and widespread. For example, nationally
representative survey studies conclude that 15 to 
35 percent of married, dating, and cohabitating
couples experienced one or more act(s) of physical
aggression in the previous year.18 However, most of
this physical aggression (e.g., solely acts of
pushing, shoving, and slapping) does not lead to
serious physical injury. More serious acts of
physical aggression, such as punching, beating,
choking, or use of a weapon, that could result in
serious physical injuries, are relatively rare in
the general population. Serious physical violence
is estimated to occur between fewer than 5 percent
of couples. For example, the National Crime
Victimization Survey found that in 1992-1993,
approximately 1 percent of women in the sample
reported being assaulted by an intimate partner
with intent to injure. This survey requires that
acts of domestic violence involve an injury and be
labeled as a crime by the respondent to be
reported. Thus, minor physical acts are unlikely to
be reported, and the survey is more likely to
capture episodes of physical aggression that are
considered serious by respondents.19 Experiencing
acts of serious physical aggression is highly
prevalent in certain samples, such as women seeking
help for domestic violence (e.g., women in
shelters, women seeking civil restraining orders,
and women involved in episodes of domestic violence
that were reported to the police). The vast
majority of serious physical assaults are
perpetrated by males against their female
partners.20

Patterns of violence and abuse

Several distinctive patterns characterize some
batterers' behavior before, during, and after
episodes of physical assaults against their
intimate partners. Understanding these patterns can
clarify the nature of the batterer's coercive
control and his partner's behavior in response.
These patterns differ in the frequency, severity,
and type of violence, the situations that elicit
violence or coercion, and the aftermath of violence
for both victim and perpetrator. The nature of
violence can also change over the course of a
relationship.

One characteristic pattern found in some, but not
all, battering relationships has been termed the
"cycle of violence."21 This pattern is
characterized by a series of stages with differing
levels of positive and negative emotional
engagement, coercion, and physical aggression.
These stages may include tension-building, acute-
battering, and contrite-loving phases. For example,
Walker found that 65 percent of a sample of
battered women reported indicators of a tension-
building phase before episodes of assaults, and 58
percent reported a contrition phase following
them.22 Where present in a particular relationship,
the cycle of violence can be one of the factors
useful in understanding the reasons a battered
woman remained in, or returned to, an abusive
relationship, since such women might believe the
violence may not recur, given its episodic nature
and the apparent contrition of the perpetrator.

The "cycle of violence" is not the only pattern of
abusive behavior found in battering relationships.
For example, another pattern may consist of long
periods of time between acute battering episodes.
Battered women in relationships characterized by
this pattern might reasonably believe, in the
period between episodes of battering, that the
violence would not recur and, thus, remain in the
relationship. Campbell, in a study of the
relationship status of battered women over time,
found that some battered women who had remained
with their batterers had not been revictimized for
periods of at least one year.23 

Identifying the unique patterns of violence and
abuse in a specific case also may facilitate
understanding of the battered woman's response. A
pattern of battering in which episodes of violence
occur suddenly and abruptly can explain why a
battered woman might reasonably believe there was
little time to seek help -- once any indication of
recurrent violence was detected -- and act
preemptorily to avoid harm. Similarly, if a
batterer's typical response to the battered woman's
effort to end the relationship is to become
reconciliatory, a sudden departure from that
pattern (e.g., threats) may signal an escalation of
violence. If a battered woman is sensitive to such
a change in the pattern of the batterer's behavior,
this may affect her appraisal of the degree of
danger to herself and invoke new or customary
coping responses (e.g., flight or preemptive
attack).24 

In sum, this body of knowledge can assist the
factfinder in understanding how the particular
pattern of batterer behavior has influenced the
battered woman. Research on the prevalence of
intimate partner violence suggests that serious
domestic violence occurs in a relatively small
proportion of couples and is rare enough that
attorneys, judges, and the general public may not
have had direct experience with it. Their
understanding of the features and dynamics of
domestic violence may be drawn from limited or
secondhand experience or from media reports of a
small number of domestic violence cases. To the
extent that such individuals play a role in
charging, prosecuting, defending, trying, or
rendering a verdict when domestic violence and its
effects are raised in court proceedings, this
limited understanding of the unique experiences of
battered women can affect decisionmaking in cases
where perpetrator and victim behavior do not
conform to preconceived notions. The introduction
of scientific research findings and clinical
experience on the nature and dynamics of battering
and its effects, both in general and in particular
cases, can provide a more informed context for the
police, attorneys, judges, and juries to make
determinations in criminal court proceedings. 

Battered Woman's Appraisal of Danger

Psychology offers a guide to understanding the
processes by which an individual appraises a
situation as threatening -- a matter central to the
legal elements of both self-defense and duress.
Understanding an individual's appraisal of a
situation as dangerous involves consideration of
the actual threat behavior, the dangerousness of
the situation, and the resources at hand for
responding to that threat.25 Thus, most people
would consider that a woman is endangered in
situations in which a batterer is physically
assaultive or directly threatens an imminent
assault; in other situations, where the threat is
not immediate, a woman's history of being battered
is relevant to her perception of the dangerousness
of the situation and its likely outcome.26 
Analysis of the influence of a history of battering
on a woman's appraisal of danger can contribute to
understanding her reaction to a threatening
situation. Where the appraisal of threat by a woman
is high and/or her appraised resources for
responding to threat behavior are low, an expected
response would include fear or anxiety,
physiological arousal, and behaviors intended
either to avoid or alter the situation.27 Thus,
testimony can be offered to assist the factfinder
in understanding the battered woman's appraisal of
threat, i.e., her perception of danger at the time
of a criminal act, as well as her response to that
threat. 

Threat behavior may be considered dangerous based
solely on its objective nature, considering the
disparity between two individuals in size, weight,
strength, and/or skill in using physical force.
Examples of such threat behavior include explicit
or implicit threats to harm (e.g., threats to
injure, maim, kill, or sexually assault) as well as
actual violent behavior (e.g., punching, pushing
down a flight of stairs, sexual assault, or use of
a weapon). In addition, a batterer's unique history
of abuse and violence may provide his victim with
added information against which to determine the
meaning of his subsequent behavior. For example,
intimate partners generally learn to read the
subtle nuances of each other's behavior more
clearly than can others. Persons who are oppressed
or victimized, such as prisoners of war or
hostages, have a great incentive to read their
oppressor's behavior accurately. This principle
applies to battered women in their abusive
relationships.28 That is, a battered woman's
appraisal of the threat implicit in a batterer's
behavior is based on his pattern of prior violence
and abuse. When she has been exposed to severe
violence by her partner on previous occasions, she
has had the unfortunate opportunity to learn the
behavioral clues that signal danger. Thus, the
meaning of threat behavior can best be understood
in light of a woman's unique history and her
knowledge of her partner's prior behavior, as well
as by the objective properties of the threat
behavior. 

Generally, the severity of threat behavior
influences the extent to which that behavior is
reasonably appraised as dangerous.29 "Actual or
threatened death or serious injury, or a threat to
the physical integrity of self or others"30 is
defined as a traumatic event within the medical and
psychological community. However, once a batterer
has engaged in severe violence toward his partner,
any implied or low-level violence can be understood
as, potentially, a reasonable and imminent threat
to her physical integrity. Even in situations where
minor violence or threats do not actually escalate
to serious violence, it is the batterer, not the
battered woman, who determines to what point the
violence escalates and at what point it ceases.31 

The timing of threat behavior also influences the
extent to which such behavior is appraised as
dangerous.32 Sometimes the batterer's threat is
perceived as certain or inevitable, but not
necessarily as immediate. Some battered women
report as credible their batterers' threats to
kill, maim, or seriously injure them at some point
in the future. Sometimes, these threats are in
connection with the battered woman's stated
intention or actual attempts to leave;33 at other
times they arise from a batterer's knowledge that
his partner is no longer available to him (e.g.,
when she has begun a new relationship or filed for
divorce). This pattern of violence has been
referred to as "separation abuse."34 In these
instances, the incubation, or period of
anticipation, heightens the stress or fear
associated with the threat.35 That is, if a
batterer has made threats to kill the battered
woman, and she perceives this outcome to be
inevitable, the passage of time since the threat
serves to enhance the level of fear. Even when a
battered woman attempts to cope with or in some way
reduce that fear (e.g., denial, minimization,
substance abuse, attempts to leave, and reports to
the police), any renewed indication that the
batterer is willing to act out the threat can
trigger the full intensity of her fear reaction.

A battered woman's threat appraisal also can be
influenced by her state of mind at the time the
threat is made. Her prior exposure to violence can
result in negative psychological sequelae, altering
her state of mind in such a way as to enhance the
salience of the batterer's threat. Specifically,
domestic violence can lead to posttraumatic stress
reactions, including posttraumatic stress disorder
(PTSD),36 in which certain behaviors or events can
cause the battered woman to act or feel as if prior
severe violence were recurring, even if it is not.
This experience may include "reliving the
experience, illusions, hallucinations, and
dissociative flashback episodes, including those
that occur on awakening or when intoxicated."37
Additional research supports the conclusion that
violence negatively impacts battered women in other
ways, for example, economic loss,38 loss of
employment,39 and increased health-care
utilization.40 The scholarly literature documents
the negative emotional, social, educational, and
physical impact of domestic violence on children.41
The negative effects on children of witnessing
violence can serve as an additional stressor for
battered women, thus increasing their distress
and/or decreasing their capacity to cope
effectively.

To summarize, a battered woman's appraisal of the
batterer's threat behavior can best be understood
in terms of her unique history with the batterer.
Of course, in some cases, an understanding of the
threat is obvious, even without knowledge of such
history. Knowledge about factors that influence an
individual's appraisal of threat can assist the
jury in determining whether a battered woman
perceived a specific situation as dangerous,
particularly in cases in which self-defense or the
duress defense are raised. In self-defense, the
battered woman claims that her use of force was
justified as a response to danger; in a duress
defense, the claim is that the battered woman's
criminal activity was a means to avoid such danger.

Negative Psychological Consequences of Domestic
Violence

An extensive and continually expanding research
literature supports the assertion that domestic
violence is associated with a wide range of
traumatic psychological reactions. Recognition of
the effects of trauma dates back more than 200
years.42 Trauma theory43 explains the psychological
and physical impact of traumatic experiences,
including violence, on victims. Research on a wide
variety of both acute and chronic trauma has
established that exposure to serious traumatic
events can lead to exceptional mental states both
during and following the trauma. Such altered
mental states during trauma exposure can include
amnesic states, in which aspects of traumatic
events cannot be recalled or are otherwise blocked
from consciousness, and dissociative states, in
which no awareness exists of the self or of events
during the course of exposure to the traumatic
event. Some altered mental states following trauma
exposure can include flashbacks and other forms of
reexperiencing the trauma, a generalized flattening
of affect to avoid overwhelming emotions associated
with the trauma, and pathological feelings of shame
or guilt ("survivor guilt").44 Such exceptional
mental states associated with psychological
reactions to trauma exposure can explain puzzling
aspects of the battered woman's state of mind and
behavior, either during the abusive relationship or
in relation to alleged criminal behavior associated
with the trauma of battering. In criminal cases in
which a woman is accused of assaulting her abuser,
the woman's psychological reactions to chronic or
acute battering during the period preceding or
during the assault may so impair mental capacity as
to support a defense of insanity: the claim that a
battered woman's mental condition impaired her
capacity to such an extent that either she did not
understand the nature and consequences of what she
was doing, or she did not understand that what she
was doing was wrong.45 Similarly, traumatic
psychological reactions can explain some puzzling
patterns of behavior following assaults that may
create an impression of culpability, such as an
inability to remember events and their sequence,
the absence of emotional reactions to the events,
hostile or angry reactions, or a wish to be
punished for the assault.

A woman's mental state during an assault on her
abuser can be determined by her immediate intense
reaction to perceived danger or by posttraumatic
reactions to prior trauma. Traumatic stress
reactions are initiated when an individual's normal
coping processes are overwhelmed during exposure to
events that threaten physical harm or an
individual's life, psychic identity, or integrity.
Traumatic stress reactions can be initiated by such
threats to self or valued others. Traumatic stress
responses during traumatic events can include fear
or terror, dissociation, and amnesia. Altered
mental states and dysfunctional behavior can
continue in the aftermath of exposure to traumatic
events as posttraumatic stress reactions. Chronic
forms of posttraumatic stress reactions may meet
the criteria for the psychiatric diagnosis of
posttraumatic stress disorder,46 the symptoms of
which include persistent reexperiencing of the
traumatic events in such forms as flashbacks,
distressing dreams, or reenactments of the
traumatic events; persistent avoiding of stimuli
associated with the traumatic event and/or a
numbing of general responsiveness; and persistent
symptoms of heightened physiological arousal as
manifested in, for example, hypervigilance,
irritability, or sleep difficulties.47

As described briefly in the preceding section, a
battered woman's perception of danger in certain
circumstances can reflect previous experience of
psychic trauma. Thus, when a battered woman suffers
from posttraumatic stress disorder based on
previous violence in either a current or former
relationship, she may experience a new situation as
dangerous due to reexperiencing prior trauma
through flashbacks and similar psychological
reactions. In this example, the battered woman's
experience of fear is genuine. However, it is based
not on the objective reality of the current
situation but, rather, on her psychological
reaction, triggered by an event similar to or
symbolic of a previously traumatic (e.g., violent)
experience.48 In some cases, the triggering process
may occur upon awakening or while intoxicated.49
Consider an example where, on a prior occasion, a
battered woman had been severely beaten by her
husband following an argument about her work. At
some later point when her husband begins to talk
about her work, the woman may experience the
situation, specifically the fear, as though the
beating was recurring. In this example, the fear
may be due not to any actual danger of the moment
but, rather, to a triggering of fear that
originated from previous danger or harm. This
situation must be distinguished from the more
common one described earlier in which the battered
woman's perception of danger is based on her
ability to detect cues in her partner's behavior
that signal actual impending danger. Similarly,
physiological hyperarousal, which can be manifested
as hypervigilance for signs of danger in the
environment, physical exhaustion and psychic
confusion from sleep deprivation, and paranoid
states, can affect her perception of events or her
ability to cope with perceived threats.

In criminal proceedings in which a woman is accused
of assaulting her abuser, posttraumatic
psychological reactions and accompanying behavioral
responses can affect the woman's demeanor and
response to the offense and her ability to aid in
her defense. Such reactions and behavior can
include nightmares and flashbacks, avoidance of
thoughts and feelings associated with the trauma,
difficulty with concentration or memory, sleep
disturbance, depression, low self-esteem, suicidal
thoughts, anxiety, dissociation, anger or
irritability, somatic or health problems, social
withdrawal, and substance abuse.50 Thus, presence
of a posttraumatic stress reaction may explain a
battered woman's apparent lack of, or atypical,
emotion when testifying or talking about her
experience with violence. In some cases, the
battered woman may report these events as though
she has no feeling or emotion related to them, as
if on "automatic pilot." The posttraumatic
psychological response of dissociation, or the
separation of feelings about an event from the
knowledge of it, can account for this behavior. In
other cases, a woman's flat affect may be explained
by attempts to avoid thinking or experiencing
emotions associated with her traumatic experiences.
In other instances yet, the battered woman may talk
about her battering experience with anger or
hostility. This behavior may be misinterpreted to
suggest that she is an aggressor or, at least, an
unlikely victim. This explanation fails to account
for the normal reaction of anger as part of the
psychological sequelae to the experience of a
traumatic event.51 In fact, it can be an indication
of progress in the health process following
victimization when a battered woman recognizes her
anger at her partner for his violent behavior
toward her.52

Some women are unable to remember traumatic aspects
of the battering or their actions during such
episodes even when they want to, due, in part, to a
dissociative amnesia resulting from exposure to
violence53 -- or even to neurological damage
associated with head injuries resulting from the
battering. Therefore, they are unable to
participate effectively in their own defense. In
other cases, posttraumatic guilt, shame, or
depression may seriously weaken a woman's desire to
avoid punishment for the assault.

Although a framework for describing negative
psychological consequences of battering that
focuses on traumatic stress reactions may explain
many of the behavioral and psychological responses
of battered women, especially those who have
experienced chronic and severe violence, it should
be emphasized that a wide range of other responses
may be involved. Many battered women have the
personal resources to cope with their battering
experience, ensure eventual safety for themselves
and their children, and function with minimal
mental health problems. Another common mental
health outcome of battering is acute or chronic
depression.54 In many cases, symptoms of depression
(or of many other mental health problems
experienced by battered women) will be maintained
during the battering relationship but will quickly
or gradually remit after the woman has been able to
terminate the abusive relationship.55 It is also
often the case that mental health problems will
emerge after termination of an abusive relationship
due to stress (e.g., serious loss of income from
leaving the relationship, locating employment and
child care, and lack of an intimate relationship)
associated with establishing an independent life
for the woman and any children.

Offering evidence of posttraumatic stress reactions
or other mental health problems or disorders as an
explanation for the reactions or behavior of a
particular battered woman, of course, requires that
an individual, face-to-face evaluation be made by a
qualified expert. Possible clinical diagnoses
relevant to diminished mental capacity that, if
sufficiently serious, have been associated with
battering include anxiety disorders (including PTSD
and acute stress disorder (ASD)), dissociative
disorders, brief psychotic disorder, disorders of
extreme stress not otherwise specified (DESNOS),
depressive disorders, and substance-related
disorders.56 Of course, symptoms of these disorders
may exist prior to the traumatic experience and,
therefore, are not caused by it. However,
preexisting disorders may be exacerbated by the
traumatic experience of violence.

Behavioral Patterns of Victims of Domestic
Battering

One consequence of the negative psychological and
social sequelae to battering is that victims
sometimes engage in patterns of behavior that may
be misinterpreted if not considered within the
context of a battering relationship. Among such
behavior patterns are continued involvement in an
abusive relationship, use of physical aggression
toward an abuser, and lack of cooperation in the
prosecution of an abuser. These behaviors may be
misinterpreted in legal proceedings as indicating
that the alleged abuse was not serious or that the
abused woman is primarily or partly responsible for
the abusive behavior that occurred.

Continued involvement in an abusive relationship

A frequently raised issue in legal proceedings is
why a battered woman did not terminate an allegedly
abusive relationship or, if she did leave, why she
returned to the abuser. An implication that may be
drawn is that the abusiveness of the relationship
is being exaggerated by the victim, as demonstrated
by her failure to terminate the relationship. A
number of factors or obstacles make terminating an
abusive relationship difficult. Major factors
addressed here include a lack of economic and other
tangible resources, fear of retaliation, and
emotional attachment. Other factors include the
desire to provide children with a father in the
home, shame and embarrassment, and denial of the
severity of abuse.

Economic Factors. The lack of economic and other
tangible resources makes leaving or staying away
difficult for some battered women.57 Without money,
transportation, shelter, child care, and a source
of income or support, a woman leaving an abusive
relationship has no means of providing for herself
and her children. Without these resources, she may
risk losing custody of her children to the batterer
or some other family member with more adequate
means. Resources, such as shelters and advocacy
services, to aid battered women in leaving abusive
relationships and establishing independent
households are severely limited in most communities
throughout the country.

Separation Abuse and Fear of Retaliation. Another
reason that may keep battered women from leaving
abusive relationships has been termed "separation
abuse"58 -- retaliation for a woman's efforts to
separate from the abuser or to end the
relationship. The battered woman may fear
retaliation through harm to herself, her children,
other family members, friends, or coworkers. Even
when a battered woman is able to secure safety for
herself, she may not be able to do the same for
parents or coworkers; when the batterer is unable
to attain access to the battered woman, he may turn
to other important people in her life. When
battered women are killed, they are more likely
than not to be separated from their batterers at
the time of death.59 Jealousy and possessiveness on
the part of the batterer are common in domestic
homicides.60 Thus, a battered woman's fear that her
abusive partner will escalate his violence toward
her at the point she attempts to separate from or
end the relationship with him is validated,
generally, by homicide statistics.61

A battered woman may fear retaliation through the
batterer's threat to seek custody of her children
or to keep them from her by kidnapping or other
means. It has been shown that batterers seek
custody at higher rates and are awarded custody no
less often than nonbatterers.62 There is often no
more powerful obstacle to terminating an abusive
relationship than when a woman faces the
possibility that her children will be taken from
her either through custody decisions that favor the
batterer, kidnapping, or homicide. A threat that
the batterer will continue his coercion of the
battered woman through manipulation of the courts
in custody battles and other litigation can
represent a significant barrier to terminating a
violent relationship.

Emotional Attachment. Emotional attachment is yet
another significant factor in explaining why
battered women are often reluctant to leave an
abusive relationship. In spite of past violence,
some women hope that their abusive partner's
violence will cease, much in the way that marital
partners maintain hope that difficulties in a
troubled marriage will be resolved. For battered
women, the hope is often built on the batterer's
apologies, promises, kindnesses, and gifts during
the contrite phase of the cycle of violence.63
Another explanation for a battered woman's
emotional attachment to an abusive partner is based
on traumatic bonding,64 a process similar to that
which occurs in captive prisoners of war or hostage
victims. In traumatic bonding, a battered woman who
experiences chronic and escalating violence can
come to see the batterer as all-powerful, on the
one hand, and to believe that she cannot survive
without him, on the other.

Understanding these and other obstacles to leaving
or staying away from a battering relationship
assists the factfinder in considering the context
of a battered woman's efforts to resist, escape,
and cope with a violent relationship. Without an
appreciation of this context, the factfinder's
deliberations may rest on faulty assumptions, for
example, that a woman who remains in an alleged
abusive relationship has exaggerated or lied about
the fact of violence.

Victim's use of physical aggression toward the
abuser

Stereotypes and misconceptions about battered women
interfere with the factfinder's ability to consider
relevant issues in a criminal case involving
domestic violence.65 One common stereotype is the
view that battered women are passive or helpless,
that they do not call the police, fight back, or
actively resist the violence against them. Although
early observations portrayed battered women as
passive and suffering from learned helplessness,66
more recent work documents that many battered women
engage in active efforts to resist, avoid, escape,
and stop the violence against them.67 

A recent Bureau of Justice Statistics study68
reported that 40 percent of battered women fought
back physically, and another 40 percent fought back
verbally. Results from other studies support the
conclusion that it is not uncommon for battered
women to resist the batterer's violent behavior.69
However, battered women's efforts to protect
themselves have been shown to make the situation
worse at times, escalating the batterer's violent
behavior and increasing the odds of injury to the
victim.70 Thus, evidence of a battered woman's use
of physical or verbal aggression does not
necessarily imply that she was the primary
aggressor or that battering was mutual.

The National Crime Victimization Survey found that
more than 50 percent of women in the interviewed
sample who had been assaulted by an intimate
partner had reported at least one assault to the
police,71 although police response to domestic
violence (as opposed to stranger violence) is
slower and less likely to result in a written
report or a search for evidence.72 Many battered
women, however, are reluctant to call police based
on concerns about racial or ethnic discrimination
against their male partners by police or court
systems. Further, social norms maintaining that
violence in the home is a private matter73 are also
obstacles to calling the police.

Thus, it should not be assumed that a battered
woman who has remained in an abusive relationship
has been passive or helpless in that situation.
Rather, the battered woman's efforts to respond to
the violence against her and her children in the
past and the outcome of those efforts74 should be
examined in a criminal case involving a battered
woman. However, based on a number of factors
outside of the battered woman's control (e.g.,
police response, court decisions regarding custody
and visitation, economic resources), and, in spite
of the battered woman's previous efforts, the
threat of violence may continue or even escalate.

Battered women actively respond to violence and
abuse in many other ways, both during an ongoing
assault and subsequent to it. These include telling
family or friends about the violence, fleeing from
the batterer, legally separating and divorcing,
seeking shelter residence, filing for civil
protection orders, complying with the batterer's
demands, hiding from the batterer, and others.75
Ironically, maintaining contact with the batterer,
in order to minimize or more accurately gauge the
level of danger, is a strategy employed by some
battered women. This type of information can inform
the factfinder's analysis about a particular
battered woman's response to violence and abuse in
the criminal case at hand.

Lack of cooperation in prosecuting the abuser

Battered women may recant previous reports or
testimony about the batterer's violence or may not
cooperate with a district attorney in prosecuting a
batterer. Various factors may explain this
behavior, including the victim's psychological
reactions to violence. For example, fear of the
batterer can explain why a battered woman may
attempt to "protect" him from negative legal
consequences of his violent behavior. Even when a
battered woman has called the police, she may
attempt to avoid the batterer's retaliation by
refusing to pursue criminal charges or to testify
against him at trial.

Another explanation of a battered woman's
reluctance or refusal to be involved in the
prosecution derives from her avoidance reactions
associated with PTSD. She may miss appointments to
talk with the prosecutor or fail to appear in
court. By avoiding having to remember or to talk
about prior violence, the battered woman may also
effectively postpone experiencing painful and
distressing emotions.

------------------------------

Critique of "Battered Woman Syndrome"

Evidence and testimony in criminal cases concerning
battering and its effects have often been presented
in an attempt to establish that the behavior of an
alleged victim falls within the parameters of the
"battered woman syndrome."76 However, the term
"battered woman syndrome" does not adequately
reflect the breadth or nature of knowledge
concerning battering and its effects.77 The
scientific and clinical literature offers a large
body of information relevant to various issues
considered by the factfinder in criminal cases
involving battered women, and the term "battered
woman syndrome" has been used to signal a shorthand
reference to that body of knowledge. However, use
of the term "battered woman syndrome," in the
context of the knowledge developed within the past
20 years, is imprecise and, therefore, misleading.
The knowledge pertaining to battering and its
effects does not rest on a singular construct, as
the term "battered woman syndrome" implies. Thus,
the term "battered woman syndrome" is not adequate
to refer to the scientific and clinical knowledge
concerning battering and its effects germane to
criminal cases involving battered women.

There is no "battered woman defense,"78 per se.
Offering evidence of the effects of battering does
not, in itself, constitute a legal defense.79 That
is, the question of "battered woman syndrome" is
not the ultimate issue in a criminal case involving
a battered woman. Rather, testimony about battering
and its effects is offered to assist factfinders in
their determination of the ultimate issues, which
are case-specific and are reflected in questions
such as:

o Did a battered woman reasonably believe she was
in danger of harm when she assaulted her abuser? 

o Did a batterer threaten or coerce the battered
woman into participating unwillingly in a crime? 

Following is a discussion of the problems that
exist with use of the term "battered woman
syndrome" in criminal cases involving battered
women.

As conceptualized in the late 1970s, "battered
woman syndrome" encompassed a condition of "learned
helplessness" in the battered woman that was
hypothesized to explain her inability to protect
herself against the batterer's violence.80
Application of the learned helplessness theory to
situations involving battered women who face actual
danger has been challenged as a misinterpretation
of the original learned helplessness theory.81
Further, as discussed above, empirical evidence
contradicts the view of battered women as helpless
or passive victims; rather, it supports the idea
that battered women continue to make active efforts
to resist, escape, or avoid violence.82 

Another early formulation of "battered woman
syndrome" incorporated the cycle of violence
theory.83 The cyclical pattern of the batterer's
behavior, including phases of tension building,
acute battering, and contrition, was cited to
explain women's reluctance to leave battering
relationships. Where the cycle of violence is
identified within a particular battering
relationship, it may be useful to explain why, in
spite of repeated occurrences of violence, the
battered woman remained in, or returned to, an
abusive relationship. Alternatively, it may be
useful to explain why she was able to recognize the
inevitability of a subsequent violent episode.
Nevertheless, the scientific literature does not
support a universal "cycle-of-violence" pattern in
battering relationships, although this pattern is
recognized in some relationships.84 As discussed
previously, some battered women report violence
that occurs suddenly with no observable tension-
building phase prior to a beating. Nor are all
battering relationships characterized by a
contrite, loving phase following a beating. Some
women report no history of apologies or acts of
kindness, while others report that, over time,
these behaviors following a beating have
diminished. Perhaps most importantly, a "cycle of
violence" is not necessary to define a battering
relationship or explain why a battered woman
remains within it.

More recently, "battered woman syndrome" has been
construed as indicating that a battered woman
suffers from PTSD as a reaction to her experience
of physical violence.85 A diagnosis of PTSD
requires a specific constellation of symptoms.
These include intrusion of the traumatic memory
into the individual's consciousness, avoidance of
thoughts and feelings associated with the traumatic
experience or numbing of general responsiveness,
and symptoms characterized by increased arousal
(e.g., difficulty sleeping or concentrating,
hypervigilance). Prevalence studies of battered
women have found the rates of PTSD range from 31 to
84 percent.86 Diagnosed in a particular case, PTSD
may be relevant to a number of issues in that
case.87 For example, indication that the battered
woman suffered PTSD at the time of an alleged
criminal act may help the factfinder to understand
her state of mind. However, nothing in the
scholarly literature suggests that PTSD is
necessary, generally, to establish the relevance of
battering and its effects to the various elements
of criminal cases involving battered women.

Restricting the definition of "battered woman
syndrome" to PTSD is problematic. Within the last
decade, the scientific and clinical literature has
documented a broad range of emotional, cognitive,
physiological, and behavioral sequelae to traumatic
events such as battering. Our understanding of the
complexity and variability of traumatic response to
violence continues to increase rapidly.88 Any of
these reactions to trauma, when characteristic of
the battered woman, may be relevant to the
factfinder in considering the various issues in the
case. Limiting the scope of consideration of the
mental health consequences of battering to PTSD
alone excludes other potentially relevant and
important information necessary for the factfinders
in their deliberations.

Finally, the term "battered woman syndrome" evokes
a stereotypic image of battered women as
pathological or maladjusted.89 Accordingly, expert
testimony can mistakenly suggest to the factfinder
that it is a battered woman's aberrant
psychological condition that explains, for example,
her acting in self-defense, committing a crime
under duress, or recanting her testimony about her
partner's battering. While psychological trauma
associated with battering may be central to this
explanation by the expert witness, the battered
woman's greater acuity in detecting danger from an
abusive partner, in some cases, is the more salient
factor. Generally, the term "battered woman
syndrome" fails to incorporate the social and
psychological context necessary to "see what she
sees and know what she knows" in considering the
defendant's actions.

In sum, "battered woman syndrome" is an inadequate
term to represent the scientific and clinical
knowledge concerning battering and its effects. 
Nevertheless, evidence and testimony on battering
and its effects serves an important function in
assisting the factfinder to consider the context of
a battered woman's actions.

------------------------------

Expert Testimony in Cases Involving Battered Women

Expert testimony on battering and its effects is
introduced in criminal cases involving battered
women by both defense counsel and prosecuting
attorneys. It is used by defense counsel to support
various types of criminal defenses including self-
defense, duress, and insanity. Expert witness
testimony may also be used by the defense in
conjunction with the sentencing phases of a trial
for purposes of mitigation. Prosecutors use expert
testimony in domestic violence prosecution cases to
explain such matters as the battered victim's
recantation or lack of cooperation with the
prosecution. Further, both the prosecution and
defense use expert witness testimony to provide an
explanation for what may be misconceptions about
battered women, battering, and its effects.90 It is
not the role of the expert witness to determine the
ultimate issues (for example, whether it was
reasonable for the battered woman to have held the
perception that she was in danger). However, expert
testimony is offered to assist in the determination
of these issues.

A general framework for admissibility of expert
testimony in criminal cases is provided in Rule 702
of the congressionally enacted Federal Rules of
Evidence:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.

It follows, therefore, that the framework for
expert testimony in criminal cases involving
battered women rests on the "scientific, technical,
and other specialized knowledge base" concerning
battering and its effects. Thus, information based
on the expert witness' "knowledge, skill,
experience, training, or education" provides the
basis for his or her expert testimony.

A 1977 Supreme Court of Washington decision, State
v. Wanrow,91 ruled in a self-defense case involving
a woman defendant that she was "entitled to have
the jury consider her actions in the light of her
own perceptions of the situation."92 Counsel
successfully argued that the jury instructions
offered at trial did not take into account the
woman's perspective, thereby failing to correctly
apply the existing standard of self-defense:
"requiring the jury to consider the defendant's
action seeing what (s)he sees and knowing what
(s)he knows,' taking into account all the
circumstances as (s)he knew them at the time."93

In addition to testimony offered by the defendant,
evidence concerning a battered woman's perceptions
and the relevant circumstances in a situation in
which she has been charged with a crime can be
introduced through expert testimony. Such expert
testimony has been introduced in criminal cases
involving battered women since the late 1970s.94
Based on a recent analysis, "expert testimony on
battering and its effects is admissible, at least
to some degree, or has been admitted (without any
discussion of the standards for admissibility) in
every state."95 Expert testimony in criminal cases
involving battered women was developed initially to
explain "the common experiences of, and the impact
of repeated abuse on, battered women."96 That is,
expert testimony is offered to show the trier of
fact the context of a battered woman's actions.97
This type of expert testimony, generally, has been
referred to as social framework testimony:
"employing social science research. . .to provide a
social and psychological context in which the trier
can understand and evaluate claims about the
ultimate fact."98

Expert testimony offered in cases involving
battered women is either general or case-specific.
A number of considerations influence which form of
expert testimony is offered in a particular case.
These include the facts of the case, case law or
state statutes governing expert evaluation and
testimony, available resources, and case strategy.
General testimony is based on an understanding of
the scientific and clinical99 knowledge about
domestic violence and its effects on battered
women. In this type of testimony, there is no
attempt to form opinions or conclusions related to
a specific case.

Case-specific testimony provides information about
a particular battered woman and the context in
which domestic violence occurred; it places the
unique facts of a specific case in a framework of
what is known in the literature about battering and
its effects. Case-specific testimony, or
conclusions about a particular battered woman,
requires a face-to-face evaluation of the battered
woman, in addition to a review of relevant
documents and other information. A suggested
approach to case-specific expert testimony about
battering and its effects is patterned after a
clinical hypothesis-testing model of assessment.100
Based on consultation with the attorney, an expert
can generate a set of questions, or hypotheses,
related to battering and/or its effects relevant to
a particular case. The expert can then analyze data
pertaining to the particular battered woman,
relying on all the information obtained in the
evaluation process. This information is later
distilled either to support or refute101 the
questions to which the expert will be asked to
respond. This approach fits a model of clinical
assessment routinely used in empirically based
clinical practice.102 Furthermore, the process is
straightforward and makes explicit the relevant
questions for inquiry by the expert witness.

------------------------------

Conclusions

The body of relevant scientific and clinical
knowledge in the scholarly literature strongly
supports the validity of considering battering as a
factor in the reactions and behavior of victims of
domestic violence. Evidence and testimony about
battering and its effects provide information
germane to factfinders' deliberations in criminal
cases involving battered women. There exists an
extensive body of scientific and specialized
knowledge derived from the disciplines of the
social, behavioral, and health sciences, that
contributes to an understanding of domestic
violence and traumatic stress reactions.

Although the term "battered woman syndrome" is
inadequate to characterize either the reactions or
behaviors of battered women, much progress has been
made under this rubric toward the admissibility of
battering and its effects as considerations in
criminal trials. A more accurate representation of
battering and its effects includes a range of
issues on the nature and dynamics of battering, the
effects of violence, battered women's responses to
violence, and the social and psychological context
in which domestic violence occurs. These issues are
relevant in charging, trying, and sentencing
battered women in criminal cases involving
battering and in prosecuting batterers.

Expert testimony on battering and its effects is
supported by an extensive body of scientific
knowledge on the dynamics and consequences of
domestic violence; this knowledge base will
continue to expand with advances in the fields of
social, behavioral, and health sciences. An
effective framework for expert testimony must
permit both general and specific application of
research findings to cases involving battered
women.

------------------------------

Notes

1. See Potuto, J.R., Saltzburg, S.A., and Pearlman,
H.S. (Eds.). (1993, Supp.) Federal Criminal Jury
Instructions (2nd ed.). Charlottesville, VA: Miche
Company Law Publishers.

2. See H. Maguigan (1991). Battered women and self-
defense: Myths and misconceptions in current reform
proposals. University of Pennsylvania Law Review,
140(2), 379-486.

3. Potuto et al., at supra note 1.

4. See J. Parrish (1994). Trend Analysis: Expert
Testimony on Battering and Its Effects in Criminal
Cases. Report prepared by the National
Clearinghouse for the Defense of Battered Women
(NCDBW) for the National Association of Women
Judges in a State Justice Institute-funded project,
"Family Violence and the Courts: Exploring Expert
Testimony on Battered Women." (No. A-93-018.DEF).

5. Dutton, M.A. (1992). Understanding women's
responses to domestic violence: A redefinition of
battered woman syndrome. Hofstra Law Review, 21(4),
1191-1242 , Walker, L.E. (1992). Battered women
syndrome and self-defense. Symposium on Women and
the Law, Notre Dame Journal of Law, Ethics and
Public Policy, 6(2), 321-334; Blackman, J. (1986).
Potential uses for expert testimony: Ideas toward
the representation of battered women who kill.
Women's Rights Law Reporter, 9(3/4), 227-240. 

6. Edleson, J.L., and Tolman, R.M. (1992).
Intervention for men who batter: An ecological
approach. Newbury Park: Sage Publications.

7. Dutton, at supra note 5.

8. Potuto et al., at supra note 1.

9. Schroeder, J.M. (1991). Using battered woman
syndrome evidence in the prosecution of a batterer.
Iowa Law Review, 76(3), 553-582.

10. Parrish, at supra note 4.

11. Parrish, at supra note 4; Maguigin, at supra
note 2.

12. Ewing, C.P., and Aubrey, M. (1987). Battered
woman and public opinion: Some realities about the
myths. Journal of Family Violence, 2(3), 257-264.

13. Fed. R. of Evid. 702.

14. See Daubert v. Merrill Dow Pharmaceuticals,
Inc., 113 S.C. 2786 (1993). 

15. Warshaw, C., and Ganley, A.L. (1995). Improving
the health care response to domestic violence: A
resource manual for health care providers. The
Family Violence Prevention Fund.

16. Warshaw and Ganley, at supra note 15.

17. Ganley, A.L. (1989). Integrating feminist and
social learning analyses of aggression: Creating
multiple models for intervention with men who
batter. In P.L. Caesar and L.K. Hamberger (Eds.),
Treating men who batter: Theory, practice, and
programs. New York: Springer Publishing Co.

18. See J.E. Stets and M.A. Straus. (1990). The
marriage license as a hitting license: A comparison
of assaults in dating, cohabitating, and married
couples. In M.A. Straus and R.J. Gelles (Eds.),
Physical violence in American families: Risk
factors and adaptions to violence in 8,145
families. New Brunswick: Transaction Publishers at
232.

19. Bachman, R.A. and Saltzman, L.E. (1995).
Violence against Women: Estimates from the
Redesigned Survey. U.S. Department of Justice,
Bureau of Justice Statistics Special Report, NCJ-
154348.

20. Zawitz, M.W. (1994) Violence between Intimates.
U.S. Department of Justice, Bureau of Justice
Statistics Special Report, NCJ-149259.

21. Walker, L. (1984) The Battered Woman Syndrome.
New York: Springer.

22. Walker, at supra note 21.

23. See Campbell, J.C., Miller, P., Cardwell, M.M.,
and Belknap, R.A. (1994). Relationship status of
battered women over time. Journal of Family
Violence, 9(2), 99-111.

24. See Stuart, E.P., and Campbell, J.C. (1989).
Assessment of patterns of dangerousness with
battered women. Issues in Mental Health Nursing,
10, 3-4, 245-260.

25. Paterson, R.J., and Neufeld, R.W.J. (1987).
Clear danger: Situational determinants of the
appraisal of threat. Psychological Bulletin,
101(3), 404-416.

26. Stuart and Campbell, at supra note 24.

27. Paterson and Neufeld, at supra note 25, at 405.

28. See Dutton, D.G. (1995). The domestic assault
of women: Psychological and criminal justice
perspectives. Vancouver: UBC Press for a discussion
of traumatic bonding. See Graham, D.L.R., Rawlings,
E., and Rimini, N. (1988). Survivors of terror:
Battered women, hostages and the Stockholm
Syndrome. In Yll, K. and Bograd, M. (Eds.),
Feminist perspectives on wife abuse. Newbury Park:
Sage Publications.

29. Paterson and Neufeld, at supra note 25.

30. See American Psychiatric Association. (1994).
Diagnostic and Statistical Manual of Mental
Disorders (4th Ed.). Washington, D.C.: Same.
Hereafter referred to as DSM-IV. American
Psychiatric Association, at 427.

31. Jacobson, N., et al. (1994). Affect, verbal
content, and psychophysiology in the arguments of
couples with a violent husband. Journal of
Consulting and Clinical psychology, 62(5), 982-988.

32. Paterson and Neufeld, at supra note 25.

33. Mahoney, M. (1991). Legal images of battered
women: Redefining the issue of separation. Michigan
Law Review, 90(1), 1-94,

34. Id.

35. Paterson and Neufeld, at supra note 25.

36. See Kemp, A., Green, B.L., Hovanitz, C., and
Rawlings, E.I. (1995). Incidence and correlates of
posttraumatic stress disorder in battered women:
Shelter and community samples. Journal of
Interpersonal Violence, 10(1), 43-55; Kemp, A.,
Fawling, E.I., and Green, B. (1991). Posttraumatic
stress disorder in battered women: A shelter
sample. Journal of Traumatic Stress, 4(1), 137-148;
Riggs, D., Rothbaum, B.O., and Foa, E. (1995). A
prospective examination of symptoms of
posttraumatic stress disorder in victims of
nonsexual assault. Journal of Interpersonal
Violence, 10(2), 201-214; Saunders, D. (1994).
Posttraumatic stress symptoms profiles of battered
women: A comparison of surveys in two settings.
Violence and Victims, 9(1), 31-44.

37. American Psychiatric Association, at supra note
30, at 428.

38. Miller, T.R., Cohen, M.A., Wiersema, B. (1995).
Crime in the United States: Victim costs and
consequences. Final Report to National Institute of
Justice; Gelles, R.J., and Straus, M.A. (1990). The
medical and psychological costs of family violence.
In M.A. Straus and R.J. Gelles (Eds.), Physical
violence in American families: Risk factors and
adaptions to violence in 8,145 families. New
Brunswick: Transaction Publishers (pp. 425-430).

39. Stets, J.E., and Straus, M.A. (1990). Gender
differences in reporting marital violence and its
medical and psychological consequences. In M.A.
Straus and R.J. Gelles (Eds.), Physical violence in
American families: Risk factors and adaptions to
violence in 8,145 families. New Brunswick:
Transaction Publishers (pp. 151-180).

40. Koss, M.P., Woodruff, W.J., and Koss, P.G.
(1990). Relation of criminal victimization to
health perceptions among women medical patients.
Journal of Counseling and Clinical Psychology,
58(2), 147-152; Koss, M.P., and Heslet, L. (1992).
Somatic consequences of violence against women.
Archives of Family Medicine, 1, 53-59.

41. Peled, E., Jaffee, P.G., and Edleson, J.L.
(1995). Ending the cycle of violence: Community
responses to children of battered women. Newbury
Park: Sage.

42. See M.R. Trimble (1985). Posttraumatic stress
disorder: History of a concept. In C.R. Figley
(Ed.), Trauma and its wake: The study and treatment
of Posttraumatic Stress Disorder. New York:
Brunner/Mazel.

43. See, for example, Herman, J. (1992). Trauma and
recovery. New York: Basic Books; van Der Kolk, B.A.
(1987). Psychological trauma. Washington, D.C.:
American Psychiatric Press; Horowitz, M. (1986).
Stress response syndromes. Northvale, NJ: Jason
Aronson.

44. Horowitz, M. (1993). Stress-response syndromes:
A review of posttraumatic stress and adjustment
disorders. In J.P. Wilson and B. Raphael (Eds.),
International Handbook of Traumatic Stress
Syndromes. New York: Plenum, 49-60.

45. Potuto et al., at supra note 1.

46. American Psychiatric Association, at supra note
30.

47. Ibid.

48. Ibid.

49. American Psychiatric Association, at supra note
30.

50. American Psychiatric Association at supra note
30; Dutton at supra note 28; Herman at supra note
43; Follingstad et al. (1991). Factors moderating
physical and psychological symptoms of battered
women. Journal of Family Violence, 6(1), 81-95;
Aguilar, R.J., and Nightingale, N.N. (1994). The
impact of specific battering experiences on the
self-esteem of abused women. Journal of Family
Violence, 9(1), 35-45; Dutton, M.A. (1992).
Empowering and healing the battered woman. New
York: Springer Publishing Co.

51. Herman, at supra note 43.

52. Dutton, at supra note 50; Walker, L.E.A.
(1994). Abused women and survivor therapy.
Washington, D.C.: American Psychological
Association.

53. Loewenstein, R.J. (1993). Psychogenic amnesia
and psychogenic fugue: A comprehensive review. In
Spiegel et al. (Eds.), Dissociative disorders: A
clinical review. Lutherville, MD: The Sidran Press.

54. Campbell, R., Sullivan, C.M., and Davidson,
W.S. (1996). Women who use domestic violence
shelters: Changes in depression over time.
Psychology of Women Quarterly, 19, 237-255.

55. Ibid.

56. American Psychiatric Association at supra note
30; Herman, at supra note 43.

57. Johnson. (1992). Economic, situational, and
psychological correlates of the decision-making
process of battered women. Families in Society,
March; Kalmuss and Straus, (1982). Wife's marital
dependency and wife abuse. Journal of Marriage and
the Family, 44, 277-286.

58. Mahoney, at supra note 33.

59. Cooper, M. (1994). Wasted lives: The tragedy of
homicide in the family. Report prepared by Parallax
Research Services for BC Institute on Family
Violence. (#290 - 601 West Cordova, Vancouver, BC,
V6B 1G1, Canada); Wilson, M., Daly, M., and Wright,
C. (1993). Uxoricide in Canada: Demographic risk
patterns. Canadian Journal of Criminology, 35(3),
263-291.

60. Wilson, Daly, and Wright, at supra note 59.

61. Silverman, R.A., and Mukherjee, S.K. (1987).
Intimate homicide: An analysis of violent social
relationships. Behavioral Sciences and the Law, 5,
(1), 37-47; Block, C.R., and Christakos, A. (1995).
Intimate partner homicide in Chicago over 29 years.
Crime and Delinquency, 41, (4), 496-526.

62. Liss, M.B., and Stahly, G.B. (1993). Domestic
violence and child custody. In M. Harway, and M.
Hansen (Eds.), Recovery from battering: Feminism
and family therapy (pp. 175-187). Newbury Park:
Sage.

63. See L.E. Walker (1977-78). Battered women and
learned helplessness. Victimology: An International
Journal, 2(3/4), 525-534; L.E. Walker (1983).
Victimology and the psychological perspectives of
battered women. Victimology: An International
Journal, 8 (1/2), 82-104; L.E. Walker (1984). The
battered woman syndrome. New York: Springer
Publishing Company; L.E. Walker (1989). Terrifying
love. New York: Harper and Row, Publishers; L.E.
Walker. The battered woman. New York: Harper and
Row. 

64. Dutton, at supra note 28; Graham and Rawlings,
at supra note 28.

65. See Pagelow, M.D. (1981). Woman-Battering:
Victims and Their Experiences. Beverly Hills: Sage.

66. Walker (1984), at supra note 63.

67. See Gondolf, E. with Fisher, E.R. (1988).
Battered women as survivors: An alternative to
treating learned helplessness. Lexington, MA:
Lexington Books; Bowker, L. (1983). Beating wife
beating. Lexington, Mass: Lexington Books; Dutton,
M.A. (1993). Understanding women's responses to
domestic violence: A redefinition of battered woman
syndrome. Hofstra Law Review, 21(4), 1191-1242.

68. Bachman, R. (1994). Violence against women: A
National Crime Victimization Survey report. U.S.
Department of Justice, Bureau of Justice
Statistics, NCJ-145325.

69. Dutton, M.A., Perrin, S., and Chrestman, K.
(1995). Differences among battered women's MMPI
profiles: The role of context. Paper presented at
the 4th International Family Violence Conference.
Durham, New Hampshire; See Marshall, C.E., and
Webb, V.J. (1994). A portrait of crime victims who
fight back. Journal of Interpersonal Violence,
9(1), 45-74; Bachman, R., and Carmody, D.C. (1994).
Fighting fire with fire: The effects of victim
resistance in intimate versus stranger perpetrated
assaults against females. Journal of Family
Violence, 9(4), 317-331.

70. See Jacobson, N., et al., (1994). Affects,
verbal content, and psychophysiology in the
arguments of couples with a violent husband.
Journal of Consulting and Clinical Psychology,
62(5), 982-988; Bachman at supra note 66; Bachman
and Carmody at supra note 67.

71. Bachman, at supra note 68; Gondolf and Fisher,
at supra note 67.

72. Bachman, at supra note 68.

73. Bachman, at supra note 68.

74. Dutton, at supra note 69.

75. Gondolf and Fisher, at supra note 67; Bowker,
at supra note 67.

76. See Walker, L.E. (1979). The battered woman.
New York: Harper and Row; Walker, L.E. (1984).
Battered woman syndrome. New York: Springer
Publishing Company.

77. See Schneider, E.M., (1986). Describing and
changing: Women's self-defense work and the problem
of expert testimony on battering. Women's Rights
Law Reporter, 9(3/4), 195-226 ; See Schopp, R.F.,
Sturgis, B.J., and Sullivan, M. (1994). Battered
woman syndrome, expert testimony, and the
distinction between justification and excuse.
University of Illinois Law Review, 1994(1), 45-113;
Dutton, at supra note 67; Schuller, R.A., and
Vidmar, N. (1992). Battered woman syndrome evidence
in the courtroom. Law and Human Behavior, 18(3),
273-291; National Association of Women Judges.
Expert Testimony in Criminal Cases Involving
Battered Women: A Resource Monograph. A report from
a State Justice Institute-funded grant. (NO.A-93-
018.DEF) for a discussion of this issue and a
similar conclusion.

78. Maguigin, at supra note 2; Parrish, at supra
note 4.

79. Possibly with the exception of insanity where
it could be argued that the psychological effects
of domestic violence resulted in a mental condition
that impaired the person's mental capacity to the
extent that (s)he was unable to understand the
nature and consequences of his or her actions or
did not understand that those actions were wrong.

80. Walker, at supra note 63.

81. See Peterson, C., Maier, S.F., and Seligman,
M.E.P. (1993). Learned helplessness: A theory for
the age of personal control. New York: Oxford
University Press at 239: "we think that the
passivity observed among victims of domestic
violence is a middling example of learned
helplessness. Passivity is present, but it may well
be instrumental. Cognitions of helplessness are
present, as is a history of uncontrollability. But
there may also be a history of explicit
reinforcement for passivity. Taken together, these
results do not constitute the best possible support
for concluding that these women show learned
helplessness." Also see Bowker, L.E. (1993). A
battered woman's problems are social, not
psychological. In R.J. Gelles and D.R.Loseke
(Eds.). Current controversies on family violence.
Newbury Park: Sage.

82. Gondolf, at supra note 67.

83. Walker (1984), at supra note 63.

84. Walker (1984), at supra note 63, at 96; also
see Schopp, F.T., Sturgis, B.J., and Sullivan, M.
Battered woman syndrome, expert testimony, and the
distinction between justification and excuse. 1994
U. Ill. L. Rev. 45 for a critique of the theory of
cycle of violence.

85. American Psychiatric Association, at supra note
30.

86. Kemp et al., at supra note 36; Saunders, D.G.
(1994). Posttraumatic stress symptom profiles of
battered women: A comparison of survivors in two
settings. Violence and Victims, 9(1), 31-44; Astin,
Lawrence, and Foy (1993). Posttraumatic stress
disorder among battered women: Risk and resiliency
factors. Violence and Victims, 8(1), 17-28.

87. See Dutton, M.A., and Goodman, L. (1994).
Posttraumatic stress disorder among battered women:
Analysis of legal implications. Behavioral Sciences
and the Law, 12, 215-234. for a discussion of PTSD
as it applies to forensic cases involving battered
women.

88. See Daubert v. Merrill Dow Pharmaceutical,
Inc., 113 S. Ct. 2786 (1993): "scientific
conclusions are subject to perpetual revision" at
16.

89. See Schneider at supra note 77 (1986 Law
Reporter article); See P. Jenkins and B. Davidson
(1990). Battered women in the criminal justice
system: An analysis of gender stereotypes.
Behavioral Sciences and the Law, 8, 171-180; See A.
Browne (1987). When battered women kill. New York:
The Free Press.

90. See Parish, at supra note 4, at 35 for a legal
discussion of the scope and relevance of expert
testimony.

91. 88 Wash. 2d 221, 559 P. 2d 548 (1977).

92. See E.M. Schneider and S.B. Jordan (1981).
Representation of women who defend themselves in
response to physical or sexual assault. In E.
Bochnak (Ed.), Women's self-defense cases.
Charlottesville, VA: The Michie Company, pp. 1-39.

93. Id. at 20.

94. See, for example, Ibn-Tamas v. United States,
407 A.2d 626 (D.C. Court of Appeals, 1979) which
remanded a case to the trial court for
reconsideration of the decision to exclude expert
testimony. Also see Macpherson, S., Ridolfi, K.,
Sternberg, S., and D. Wiley (1981). Expert
testimony. (Appendix G), In E. Bochnak (Ed.),
Women's self-defense cases: Theory and practice.
Charlottesville, VA: The Michie Company for list of
50 trial court cases involving expert testimony on
the subject of battering. Also see L.E. Walker
(1989). Terrifying love: Why battered women kill
and how society responds. New York: Harper and Row,
Publishers for a discussion of a 1977 case
involving a battered woman charged with homicide in
which Dr. Walker testified as an expert witness.

95. Parrish, at supra note 4.

96. Schneider, at supra note 77, at 198.

97. Maguigan, at supra note 2. 

98. See Vidmar, N., and Schuller, R.A. (1989).
Juries and expert evidence: Social framework
testimony. Law and Contemporary Problems, 133.

99. Specialized knowledge is that based on
experience, training, or skill such as that
acquired by a battered women's advocate or shelter
worker, counselor, or law enforcement officer.
Specialized knowledge is contrasted with scientific
knowledge which is derived from scientific
research.

100. Nelson, R.O., and Hayes, S.C. (1986).
Conceptual foundations of behavioral assessment.
New York: The Guilford Press; Bellack, A.S., and
Hersen, M. (Eds.). (1988). Behavioral assessment: A
practical handbook. New York: Pergamon Press.

101. In some cases, there may be too little
information to generate answers to a particular
hypothesis or question.

102. Nelson and Hayes, at supra note 98; Bellack
and Hersen, at supra note 100.

------------------------------

Trend Analysis: Expert Testimony on Battering and
Its Effects in Criminal Cases

By Janet Parrish, Esquire
Consultant to the National Clearinghouse
for the Defense of Battered Women (NCDBW)

------------------------------

National Clearinghouse for the Defense of Battered
Women
Director and Project Coordinator
Susan Osthoff

This document was prepared for the National
Association of Women Judges for its State Justice
Institute-funded project "Family Violence and the
Courts: Exploring Expert Testimony on Battered
Women"

------------------------------

Contents

Preface

I. Overview

 A. Introduction and Acknowledgements
 B. Summary of Findings and Conclusions

II. Research Methodology

 A. Database for the Trend Analysis
 B. Methodology

III. Expert Testimony Trend Analysis

 A. Admissibility of Expert Testimony
 B. Types of Cases in Which Expert Testimony       
 Admitted
 C. Showing Necessary to Introduce Expert          
 Testimony
 D. Ineffective Counsel Issues
 E. Scope and Relevance of Expert Testimony
 F. Expert Testimony Triggers Adverse Examination 
 G. Case Dispositions on Appeal

IV. Suggested Followup Research Questions

Notes

------------------------------

Preface

The National Clearinghouse for the Defense of
Battered Women is very pleased to be part of the
National Association of Women Judges' project,
Family Violence and the Courts: Exploring Expert
Testimony on Battered Women, funded by State
Justice Institute. The project will provide in-
depth information and analysis about expert
testimony in cases involving battered women. 

At the National Clearinghouse we are acutely aware
of the need for this project. On a daily basis we
are confronted with the widespread misunderstanding
that continues to exist -- even within the legal
community --  about the use of expert testimony in
cases involving battered women. It is true that in
recent years legal scholars have produced a large
body of literature about battered women who are
charged with crimes, and much of it has focused on
expert testimony. Unfortunately, most of these
legal treatises fail to discuss the relationship of
expert testimony to current substantive law,
evidentiary provisions, or procedural rules.
Moreover, almost none of the literature discusses
battered women who are coerced into crime, women
who are charged with "failing to protect" their
children from an abuser's violence, and the use of
expert testimony in these cases.

In our work at the National Clearinghouse we
respond to calls from defense attorneys searching
for an expert witness because they have "one of
those battered women's cases" and want an expert
for their "battered women's defense." Judges,
members of the media, and others call us wanting to
know which states allow or do not allow the
"battered women's defense."

There is no such thing as a "battered women's
defense."1 Yet the perception that there is a
separate defense called the "battered women's
defense," or the "battered woman syndrome defense,"
persists. Due in large part to this misperception,
many battered women's cases continue to be
presented or considered as though new, unique legal
rules apply. Many judges and lawyers fail to
understand that testimony by an expert should be
used to support a battered woman's self-defense or
duress claim, not to replace it. When battered
women are on trial, traditional concepts of
criminal law continue to be discarded or oddly
twisted, and myths and misconceptions about
battered women run rampant.2 

In general, expert testimony should help the jury
and judge understand the defendant's experiences
and actions, not excuse them. The testimony should
be part of the evidence that helps to inform the
factfinder about the social context in which the
incident occurred. Unfortunately, many people
continue to misconstrue the use of evidence of
abuse in criminal trials and, since the Bobbitt and
Menendez trials, there has been increased publicity
decrying the so-called "abuse excuses" as condoning
vigilantism and freeing people who kill from
personal responsibility.3

Supporting the introduction of expert testimony
does not promote vigilantism; it promotes fair
trials. Defendants -- including battered women
defendants -- should be able to introduce all
relevant evidence at their trials, including
evidence of and expert testimony about their
experiences of abuse, that can help the jurors
better understand their situations.

It is essential that we increase understanding in
the lay and legal communities about the role of an
expert in supporting established defenses used by
battered women, such as self-defense. In any self-
defense case, the jury needs to have information
about why the defendant believed she had to defend
herself -- why, to use generic self-defense
language, the defendant was reasonable in her
belief that she was in imminent danger of death or
great bodily harm. Any defendant claiming self-
defense would want to bring in information about
the deceased's history of violence against her or
him; obviously this evidence would help the jury to
better understand why the person was so afraid at
the time of the incident.

Even in a barroom fight between two men, the man
who defended himself -- the defendant -- can bring
in information about the other man's past threats
and violence directed at the defendant (e.g., "A
week ago the other guy threatened me. Four days ago
he pulled a knife on me. Two days ago he punched me
and said he'd kill me the next time he saw me.").
Generally, in cases involving two men in a bar,
there is less history of violence between the two
parties than in cases involving battered women; but
the idea is the same: the information about the
past threats and violence is necessary to fairly
evaluate the situation at the time of the incident.
This type of "social context" information is not
unique to battered women's self-defense claims.

In many cases involving battered women, it is also
necessary to bring in an expert witness to testify
about battering and its effects to help jurors and
judges understand the experiences, beliefs, and
perceptions of women who are beaten by their
intimate partners -- information that the common
lay person usually does not possess. Generally, in
a self-defense case, this testimony is introduced
to help the jurors better understand why, given
this woman's experience of violence at the hands of
her abuser, she was reasonable in her belief that
she was in imminent danger. Although battered women
who kill their abusers are most likely to call an
expert about battering and its effects to support
their self-defense claims, battered women charged
with other crimes have also utilized expert
witnesses at trial, most notably in duress
defenses. Additionally, experts have testified in
civil cases and in cases when batterers are
prosecuted.4

As this Analysis shows, since the mid-1980s there
has been increasing recognition by the courts of
the relevance of expert testimony on battering and
its effects to support battered women's defense
claims. Yet, as you will see below, many battered
women continue to face monumental hurdles when they
come before the court system as defendants.
Although the vast majority of states now allow
expert testimony in support of battered women's
defense claims, some women still are unable to
present an expert witness to testify about the
effects of abuse on their beliefs, experiences, and
perceptions. Based on the calls we receive at the
National Clearinghouse, many attorneys still do not
understand the relevance of such testimony and fail
to offer an expert on behalf of their clients. In
other instances, the court allows an expert but
severely limits the scope of the expert's
testimony.

Due in large part to the fact that expert testimony
about battering and its effects -- as well as
additional evidence about battering from other
sources -- is not being properly integrated into
already existing jurisprudence, battered women's
homicide cases are reversed on appeal at a rate
significantly higher than the national average for
homicide appeals.5 It is our hope that this
research will help practitioners and researchers
alike better understand the true goals and purposes
of introducing expert testimony, so that battered
women defendants -- like all defendants -- will
have an opportunity to introduce all the relevant
evidence at their trials. After all, I think we can
all agree that justice is best served when the
jurors have an opportunity to hear all of the
relevant evidence in order to fairly evaluate the
case before them.

The report which follows -- Trend Analysis: Expert
Testimony on Battering and its Effects in Criminal
Cases -- is the most comprehensive study of its
kind. Building on the seminal work of Professor
Holly Maguigan, Battered Women and Self-Defense:
Myths and Misconceptions in Current Reform
Proposals (140 U. Pa. L. Rev. 379 (1991)6, Attorney
Janet Parrish meticulously researched and analyzed
every criminal case we were able to locate
involving a battered woman defendant who introduced
-- or tried to introduce -- an expert witness at
her trial. This Trend Analysis provides detailed
information about what is actually happening across
the United States regarding the admissibility of
expert testimony about battering and its effects.

The National Clearinghouse for the Defense of
Battered Women looks forward to working with others
in the field to learn more about the uses of expert
testimony. As Janet Parrish states (page 1), "the
[Analysis] raises as many questions as it answers."
This is absolutely correct, but we are fortunate to
have in this Trend Analysis such a solid foundation
to support further exploration of these complex
issues. It is our hope that this work will promote
much needed understanding about the role of experts
in cases of battered women charged with crimes and
help encourage further dialogue to ensure that
justice is served.

Sue Osthoff
Director
National Clearinghouse for the Defense of Battered
Women

------------------------------

I. Overview

A. Introduction and Acknowledgements 

The original version of this analysis (dated
November 1994) was prepared by the National
Clearinghouse for the Defense of Battered Women
(NCDBW) under contract to the National Association
of Women Judges (NAWJ) for its State Justice
Institute (SJI)-funded project, Family Violence and
the Courts: Exploring Expert Testimony on Battered
Women. This revised version (dated May 1995)
contains updated citations for some of the cases
included in the original analysis as well as
information about two additional state statutes not
included in the earlier version.

NCDBW has gathered and analyzed relevant data on
the admissibility of expert testimony on battering
and its effects in criminal cases in state and
federal courts. This resultant analysis is to serve
as an Introductory Working Paper that contains the
most up-to-date information about the current
status of admissibility of such testimony
nationally. In addition, this paper suggests some
key questions that are beyond the scope of this
analysis, but warrant additional investigation and
analysis. These questions are listed at the end of
the analysis. Such questions and other related
issues will be the subject of Working Papers to be
developed as part of the SJI-funded project and
will be discussed at an interdisciplinary
Roundtable to be convened by the NAWJ with NCDBW's
assistance.

We acknowledge that this analysis may raise as many
questions as it answers. We also acknowledge the
limits of this analysis. It is an effort to capture
current trends, notwithstanding the fact that it is
difficult to do a direct state-to-state comparison.
Obviously, the states have varying evidentiary and
substantive criminal law standards, which impact on
their approaches to the purpose, relevance, and
scope of expert testimony in general and on
battering and its effects in particular. Providing
correlations between, for example, a state's self-
defense standard and its views on the admissibility
or relevance of expert testimony for a particular
purpose is beyond the scope of this analysis, but
they certainly would enhance our understanding of
these results.

Throughout this analysis, the term "expert
testimony on battering and its effects" will be
used. This testimony has often been referred to in
court decisions and literature as testimony on
"battered woman syndrome" or "battered women's
syndrome" (which may be abbreviated as "BWS").
However, the syndromic characterization of such
testimony does not adequately reflect the broad
scope of testimony that is allowed in many states.

Many battered women's advocates, experts, and
attorneys have expressed concern about the use of
the term "syndrome" in connection with this issue.
Although it may have been necessary initially to
use the term to demonstrate the scientific validity
of the proffered expert testimony, and although it
is a convenient way of describing a set of
characteristics that are common to many (but not
all) battered women, the use of the term "syndrome"
has also served to stigmatize the battered woman
defendant or to create a false perception that she
"suffers from" a mental disease or defect (one
court even referred to it as a "malady").

Such misconceptions persist even now. For example,
in Ware v. Yukins, 1994 U.S. App. LEXIS 3824, at
*17 (6th Cir. 2/25/94) (unpub. disposition), cert.
denied 114 S.Ct. 2763 (1994), the Sixth Circuit
Court of Appeals characterized the defendant's
theory of her case as being "that [she] had lost
control of her faculties in much the same manner as
would a victim of `Battered Woman Syndrome.'"
Similarly, in State v. Daws, 1994 Ohio App. LEXIS
3295 (7/27/94) (slip op.), appeal allowed by 71
Ohio St.3d 1406, 641 N.E.2d 203 (1994), an Ohio
appellate court, in a lengthy opinion considering
the permissible scope of expert testimony on
battering and its effects, noted that most courts
permit such testimony to counteract jury
misperceptions about battered women; yet,
demonstrating its own misperceptions, the court
also observed (at *25) that "it is not so obvious
that the average juror will be able to interpret
the abnormal behaviors of a person suffering from
the battered woman syndrome...." Rather than
perpetuate such inaccuracies, we use (and urge
others to use) the more generic, more inclusive
language that is utilized by many expert witnesses
and in a number of state statutes on the
admissibility of expert testimony on battering and
its effects.
 
Finally, we acknowledge the invaluable assistance
of the following individuals in this project:
Professor Holly Maguigan; Susan Toler, Esquire;
Rose M. Weber; Ruth A. Cionca; David Dorsey,
Esquire; Holly White; and Leigh R. Krohmer. We also
appreciate the helpful comments and suggestions of
the project Editor, Mary Ann Dutton, Ph.D.

B. Summary of Findings and Conclusions

This analysis of 238 state court decisions, 31
federal court decisions, and 12 state statutes
finds a number of significant trends in the use of
expert testimony on battering and its effects in
criminal cases. Although the analysis should be
read in its entirety (and indeed, the cited cases
and statutes should be carefully reviewed first-
hand by practitioners who intend to rely on them),
the following major findings and conclusions emerge
(primarily from the analysis of state court
decisions).

o Admissibility of expert testimony on battering
and its effects

-- Expert testimony on battering and its effects is
admissible, at least to some degree, or has been
admitted without discussion of the standards for
admissibility, in each of the 50 states plus the
District of Columbia. On the other hand, 18 states
have also excluded expert testimony in some cases;
of these, only as to Wyoming is there still doubt
under case law as to the testimony's admissibility.
However, Wyoming (plus 11 other states) provides
for the admissibility of expert testimony by
statute.

-- Twelve states have enacted statutes providing
for the admissibility of expert testimony, all but
two of which were passed within the last four
years. Notably, in Ohio and Missouri, the courts
have interpreted these statutes in a restrictive
fashion to limit the admissibility of expert
testimony to cases in which self-defense is claimed
(as opposed to, e.g., duress).

-- Of the 19 federal courts that have considered
the issue, all but three have admitted expert
testimony on battering and its effects in at least
some cases.

o Types of cases in which expert testimony admitted

-- Expert testimony on battering and its effects is
most readily accepted by state courts in cases
involving traditional self-defense situations,
i.e., it has been accepted by 90 percent of the
states in such circumstances. Expert testimony has
also been admitted by a substantial number of state
courts in nontraditional self-defense situations,
such as where a battered woman kills her batterer
while he is sleeping (accepted by 29 percent of the
states) or by hiring a third party to kill him
(accepted by 20 percent of the states).

-- In another striking trend, expert testimony on
battering offered by the prosecution has been
admitted or discussed with favor in 29 percent of
the states, e.g., to explain a battered woman
complainant's prior inconsistent statements.

-- A sizable minority of states have admitted
expert testimony in non-self-defense cases, such as
where duress is asserted as a defense (16 percent
of the states) or where a battered woman defendant
has been charged with a crime against a third
party, other than the batterer (14 percent of the
states). Expert testimony on battering has also
been used in civil actions in at least 20 percent
of the states.

-- Two-thirds of the federal courts admitting
expert testimony (11 of 16 courts) do so in a
duress case. More than one-third of the federal
courts admitting this testimony have done so in
traditional self-defense cases.

o Showing necessary to introduce expert testimony

-- Nearly 40 percent of the states require that the
defendant raise a self-defense claim in order to
introduce expert testimony on battering and its
effects. Similarly, 42 percent of the 12 state
statutes providing for the admissibility of such
expert testimony require that there be a claim of
self-defense made.

-- Over 25 percent of the states have required some
evidence that "battered woman syndrome" is accepted
in the scientific community in order to admit the
testimony, while 33 percent of the states have
explicitly required that the proffered expert must
be properly qualified as such.

-- Twenty percent of the states require that the
defendant first show that she is a battered woman
before expert testimony will be admitted.
Similarly, 25 percent of the state statutes have
this requirement.

o Ineffectiveness of counsel issues

-- Of the 15 state jurisdictions that have
considered the issue of whether trial counsel was
ineffective (primarily for failing to offer expert
testimony on battering and its effects), the
majority (60 percent) have found that counsel was
not ineffective. Each of the five states that has
considered whether state funds must be made
available to an indigent battered woman defendant
so she could hire an expert witness has held that
it was acceptable to deny such funds (although one
of these decisions was reversed by the federal
courts).

o Scope and relevance of expert testimony

-- Although there is significant consensus among
the courts as to the issues on which expert
testimony on battering and its effects are relevant
and admissible, variations also exist within a
given jurisdiction from case to case, depending on
the nature of the case (e.g., traditional self-
defense versus a "hire-to-kill" case), the specific
facts of the case, or the specific issues raised by
the defendant on appeal.

-- The vast majority of states (76 percent) have
found expert testimony to be admissible to prove
the defendant is a battered woman or that she
"suffers from 'battered woman syndrome.'" Forty-two
percent of the 12 state statutes provide for such
use of expert testimony, while close to two-thirds
of the 16 federal courts admitting such testimony
permit the expert to testify that the defendant is
a battered woman or exhibits the characteristics of
"battered woman syndrome." Sixty-nine percent of
the states have found "generic" expert testimony
admissible, i.e., to explain battering and its
effects generally without reference to the specific
defendant. Twenty percent of the states have
explicitly precluded experts from testifying that
the defendant is in fact a battered woman or
"suffering from 'battered woman syndrome.'" 

-- Nearly 70 percent of the states have found
expert testimony relevant to supporting a self-
defense claim. More than 50 percent of the states
have found the testimony relevant to assessment of
the reasonableness of the defendant's belief she
was in danger of imminent harm and/or of her
actions in defense of herself or others. A lesser,
but significant, number (37 percent) have found the
testimony relevant to the defendant's perception of
the temporal proximity of the perceived danger to
life or safety. 

-- Nearly 70 percent of the states agree that
expert testimony is relevant to the issue of the
defendant's state of mind at the time of the
charged crime. Similar but somewhat lesser
percentages of the 12 state statutes specifically
permit the use of the testimony to support a self-
defense claim or to elucidate the defendant's state
of mind. Of the 16 federal courts admitting the
expert testimony, 75 percent have found it to be
relevant to the defendant's state of mind.

-- More than 25 percent of the states have found an
expert can give an opinion on the "ultimate
question" for the factfinder of reasonableness or
whether the defendant acted in self-defense. But a
larger group of states (37 percent) have held to
the contrary.

-- Two-thirds of the states consider expert
testimony on battering and its effects to be
relevant to the question of why the defendant did
not leave the battering relationship or to explain
other conduct, such as acts done under duress by
the batterer. A similar proportion of the federal
courts have found the testimony to be relevant for
these purposes. In addition, 33 percent of the
states have explicitly noted that the testimony is
admissible to rebut common myths and misperceptions
about battered women.

-- Almost 30 percent of the states agree that the
expert testimony is admissible to prove a
defendant's diminished capacity, mental defect, or
lack of intent to commit the charged crime. Forty-
four percent of the federal courts admitting expert
testimony have so found.

-- Consistent with the general law of these
jurisdictions, 25 percent of the states have found
expert testimony on battering and its effects to be
admissible to bolster the defendant's credibility.
A similar percentage of the federal courts
admitting the testimony have so found.

-- Expert testimony on battering and its effects
has also been admitted by 20 percent of the states
to show the existence of mitigating factors in the
defendant's favor at the sentencing phase of the
trial. A similar percentage of the admitting
federal courts (notably the 9th Circuit Court of
Appeals) has so found.

o Expert testimony triggers adverse examination

-- Of the 22 percent of the states that have ruled
on the issue whether offering expert testimony on
battering subjects a defendant to an adverse
psychological examination by the prosecution's
expert, the overwhelming majority have found that
introducing expert testimony does trigger an
adverse examination. Only Minnesota has gone the
other way on this issue, albeit with limitations.

-- Both of the two state statutes that address this
issue provide for an adverse examination with
limitations. Of the three federal courts that have
looked at this question, two have found that
introduction of expert testimony does subject the
defendant to an adverse examination.

o Case dispositions on appeal

-- Of the battered women defendants' appeals (152
state court decisions) analyzed here, 63 percent
resulted in affirmance of the conviction and/or
sentence, even though expert testimony on battering
and its effects was admitted or found admissible in
71 percent of the affirmances. This is strong
evidence that the defense's use of or the court's
awareness of expert testimony on battering and its
effects in no way equates to an acquittal on the
criminal charges lodged against a battered woman
defendant.

-- Of the 32 percent of the appeals that resulted
in reversals, less than half (45 percent) were
reversed due to erroneous exclusion of, limitation
of, or failure of counsel to present expert
testimony. The remainder were reversed on grounds
unrelated to the expert testimony issue.

-- Five percent of the appeals were remanded,
nearly all for reasons unrelated to the expert
testimony issue.

-- These findings are roughly similar to those of
Professor Holly Maguigan in her 1991 study,
Battered Women and Self-Defense: Myths and
Misconceptions in Current Reform Proposals (140 U.
Pa. L. Rev. 379). However, it appears that from
1991 to 1994 when this survey was conducted, the
odds that a battered woman defendant's conviction
would be affirmed on appeal in a case in which
expert testimony was used or was at issue increased
by almost 20 percent.

-- Of the battered women's appeals heard in the
federal courts (22 cases), 77 percent resulted in
affirmances of convictions and/or sentences. This
is significantly higher than the 60 percent
affirmance rate for state court appeals found in
both this analysis and Maguigan's 1991 study.

------------------------------

II. Research Methodology

A. Database for the Trend Analysis

The database for this analysis is comprised of 238
state court7 (primarily appellate) decisions and 31
federal court (mostly appellate) decisions.8 As
detailed in Section III.G.1. infra, nearly two-
thirds (152) of the state court cases represent
high or intermediate appellate court decisions
regarding battered women charged with crimes. The
remainder is comprised of 30 trial court-level
cases involving battered women charged with crimes,
12 appellate decisions on pretrial motions in
battered women defendants' cases, 13 civil actions
involving the use of expert testimony on battering
and its effects, and 31 cases involving prosecution
of batterers or male defendants charged with sexual
assault where expert testimony on battering or
sexual assault was discussed by the court.

To ensure that this database was reasonably
complete, it was cross-checked against the case
citations contained in the seminal article by
Professor Holly Maguigan, Battered Women and Self-
Defense: Myths and Misconceptions in Current Reform
Proposals (140 U. Pa. L. Rev. 379 (1991)) and those
contained in the unreported trial court decision in
State v. Hazel (No. 931400263, 4th Judicial
District Court for County of Utah, State of Utah
(Memorandum Decision 9/7/93)), which claimed to
contain an extensive review of decisions on expert
testimony on battering and its effects. The handful
of decisions referred to in Maguigan's article that
were not already in the NCDBW library as of
February 1994 were obtained, abstracted, and added
to the database. The completeness of the database
was further cross-checked against a 1992 article by
Hugh Joel Breyer, The Battered-woman (sic) Syndrome
and the Admissibility of Expert Testimony, 28
Criminal Law Bulletin 99. 

Additionally, LEXIS searches were performed in
March and April 1994 to identify and obtain any
more recent decisions (particularly for 1993 and
1994). (Taking into account the language usually
utilized by the courts, the LEXIS search
specifications were for cases that contained the
language "battered wom*n" or "battered wom*n
syndrome" within 25 words of the language "expert
testimony" and were decided after 1992. Alternative
versions of the search looked for the language
"battered wife" or "battered wife syndrome," and
for "battered spouse" or "battered spouse
syndrome.") As a result, about 30 cases were
identified, of which about half were already in the
database. The others were abstracted and added to
the database. In September 1994, a final LEXIS
search was conducted, and a former NCDBW staff
person provided several cases involving battered
women asserting a duress defense. As a result, ten
more cases (primarily decisions rendered in 1994)
were added to the database. Based on LEXIS searches
conducted in April 1995, the case citations were
updated, where possible, for cases that had
previously been unreported or reported only on
LEXIS or Westlaw.

The database for this analysis of some 270 cases is
more comprehensive than that utilized in any of the
foregoing analyses. Maguigan's review (which
primarily focuses on the application of the states'
self-defense standards) examined more than 80
decisions on the expert testimony admissibility
issue (plus over 180 others cited for their
holdings on self-defense issues); the Hazel case
summarized about 60 cases; and the Breyer article
refers to approximately 40 cases.

In addition to utilizing more appellate level
decisions than previous analyses, the database for
this analysis includes 40 unreported decisions or
trial transcripts available as a collection only
through NCDBW. There is no other more comprehensive
repository for such critical data, yet this body of
cases obviously presents an incomplete picture of
the myriad state trial court decisions since it
represents only those cases judges, attorneys,
expert witnesses, or battered women's advocates
have shared with NCDBW. Nevertheless, it seemed
valuable to include this otherwise unreported data
in this analysis, to get some sense of how the
admissibility and scope of expert testimony are
being treated at the trial level, as compared to
the appellate level. Though it is certainly beyond
the scope of this analysis, it would be highly
valuable to undertake a systematic survey of the
states to obtain a more complete representational
group of trial decisions and experts' testimony. 

For purpose of this analysis, in states where there
was a court decision holding that expert testimony
on battering and its effects was admissible (which
sometimes overruled outright an earlier decision),
the case holding testimony admissible was used as
the chronological starting point for that state.
While it is certainly worthwhile knowing the prior
history of excluding such testimony in earlier
cases, this analysis is focused more on the current
status of the admissibility of such testimony.

To supplement the picture provided by reviewing
case law, state statutes regarding the
admissibility of expert testimony on battering and
its effects were also surveyed. Information on hand
in the NCDBW library was used as a starting point.
LEXIS searches conducted in August and September
1994, and again in February and April 1995,
confirmed that such legislation is in effect only
in the 12 states identified by NCDBW in its current
Legislative Update. Thus, the state statute
database is comprised of 12 statutes.

B. Methodology

As suggested in Section II.A. above, the major
starting point for this research project was
Professor Holly Maguigan's article, Battered Women
and Self-Defense: Myths and Misconceptions in
Current Reform Proposals (140 U. Pa. L. Rev. 379
(1991)), which analyzed more than 80 appellate
decisions involving the use of expert testimony
(and more than 260 battered women's self-defense
cases in total). Because of the widespread respect
accorded Maguigan's excellent scholarship in this
area, this analysis builds on the foundation laid
by her article, rather than "recreating the wheel."
To the extent possible, therefore, Maguigan's
coding system for categorizing the relevant aspects
of the cases was utilized (see 140 U. Pa. L. Rev.
at 462-463). However, because the present analysis
focuses solely on expert testimony cases, it was
necessary to develop additional codes to track
greater detail (particularly as to the scope and
relevance of the expert testimony).

All cases (and to the extent applicable, state
statutes on the admissibility of expert testimony
on battering) were coded as to seven major areas:

1. Is expert testimony on battering and its effects
admissible, and to what degree?

2. What showing is necessary in order to have the
testimony admitted?

3. What kind of case was it (using three categories:
self-defense, non-self-defense (e.g., duress) or
other (e.g., civil))?

4. Was counsel found to be ineffective (primarily
for not proffering expert testimony on battering)?

5. What are the scope and relevance of expert
testimony?

6. Does the use of expert testimony trigger an
adverse psychological examination of the defendant?

7. What was the disposition of the case on appeal
(i.e., affirmed, reversed or remanded)?

In addition, the cases were coded according to the
level of the court rendering the decision (high,
intermediate, or trial level).

To give a more accurate picture of what each state
is actually doing with respect to expert testimony
on battering and its effects, multiple decisions
from a given jurisdiction were coded. That is,
while a state may have one decision or more that
squarely holds expert testimony to be admissible,
it may also have a subsequent decision admitting
such testimony only on a limited basis or excluding
it on the facts of a particular case. To facilitate
analysis of the impact of such decisions, the level
of the court(s) rendering the various decisions
(i.e., high, intermediate, or trial level) was
noted.

For the purpose of categorizing the states'
positions on the admissibility of the expert
testimony, it was decided to assign the state only
one code on this threshold question based on its
most inclusive ruling. Thus, for example, if there
are two decisions -- one with a square holding on
admissibility and one with a limited holding -- the
state is coded as "AH" for "admits squarely," not
"AL" for "admits with limits on scope"). This
permits a general overview as to how the states
break out in terms of the number that have, at some
point, squarely admitted expert testimony, versus
those that have admitted it but only in a limited
fashion or conditionally, versus those that have
actually admitted it or recognized its
admissibility without explicitly ruling on any
admissibility issue. 

The continuing weight to be given this coding, or
the extent to which it can be relied upon, must be
determined not only by examining the way subsequent
decisions in that state have been coded, as
mentioned above, but also by referring to the
"scope and relevance" codes assigned to each
decision, which reflect in more detail the purposes
for which expert testimony will be admitted (or
excluded) in any given jurisdiction.

It should clearly be borne in mind that, even
though a state may have squarely held expert
testimony to be admissible, later decisions by the
same or higher level court may have limited this
holding, as noted in the discussion of
admissibility in Section III.A.1. infra. Later
limiting decisions by a lower court are also noted.
Depending on the nature of the departure from the
prior, square holding decision, they may indicate
clarification of that holding or its minor erosion;
they may also indicate a lack of clarity for the
lower courts as to what the higher court actually
meant, or they may signal resistance to applying
the higher court's holding. Moreover, in some
instances, the impact of court decisions may have
been modified by subsequent passage of a statute
governing admissibility of expert testimony on
battering and its effects; this is noted in the
discussion of state statutes.

Some judgment had to be applied in assigning the
"scope and relevance" codes; in general, the codes
were assigned in accordance with the specific
language utilized by a court in its decision or the
actual scope of the testimony given by an expert
witness (either as evident from a trial transcript
or as described by the court in a decision that did
not necessarily reach the admissibility issue head-
on). The appropriate "scope and relevance" code was
assigned any time a decision or trial transcript
supported it. Occasionally, it was arguable whether
a particular code should be assigned; this is noted
in the footnoted case citations in this analysis.
It should be kept in mind that a coded case may
only be a trial court decision or the actual
testimony of an expert, leaving open the question
whether this use of expert testimony truly has
precedential value in the state. However, to give a
flavor for what is possible and has actually been
done within each state, it was reasonable to opt
for this more inclusive approach.

Initially, case abstracts were utilized to assign
preliminary codes, which were cross-checked against
Maguigan's coding (where it existed). Then, each
case and trial transcript was reviewed individually
to ensure the accuracy and completeness of the
coding.

The data were first recorded manually in a chart;
to facilitate tabulating the data, they were then
entered in a computer database. The coding system
was then utilized to tabulate the results.

------------------------------

III. Expert Testimony Trend Analysis

A. Admissibility of Expert Testimony 

1. Admissibility of expert testimony: admissibility
under state case law

Expert testimony on battering and its effects is
admissible, at least to some degree, or has been
admitted (without any discussion of the standards
for admissibility) in every state. The results of
this survey are discussed in more detail in the
narrative that follows.

In 41 percent of the states (21), there is a square
holding (coded "AH") that such testimony is
admissible,9 which breaks down as follows: 

o In 12 states (Connecticut, Florida, Georgia,
Kansas, Massachusetts, Montana, New Jersey, New
York, Ohio, Pennsylvania, South Carolina, and
Washington), there is a square holding by the
state's high court.10 However, it should be noted
that in half of these states, there is a subsequent
more restrictive decision by the same court
(Connecticut, Georgia, and Kansas),11 a lower court
(New Jersey and Ohio),12 or both the same and a
lower court (Washington).13 (The nature of the
subsequent limiting decisions is briefly discussed
infra.)

o In seven states (California, Hawaii, Illinois,
New Mexico, Oklahoma, Texas, and Wisconsin), plus
seven of the foregoing ones (Florida, Georgia,
Kansas, New Jersey, Ohio, Pennsylvania, and South
Carolina), there is a square holding by the state's
intermediate (appellate) court.14 Again, it should
be noted that in one-third of these states, there
is a subsequent limiting decision by the same15 or
a higher16 court.

o Finally, in two states (Minnesota and Utah), the
only square holding of admissibility is by a trial
court;17 for one of these, there are subsequent
limiting decisions by a higher court.18 

With the exception of Ohio, it would appear that
the subsequent, more restrictive decisions do not
significantly eviscerate the state's earlier square
holding. For example, the later decision only holds
that the expert cannot give his/her opinion as to
the ultimate facts in the case19 or that expert
testimony cannot be used to bolster the defendant's
credibility.20 Or, it represents a more limited
view of the use of expert testimony in a
nontraditional self-defense situation, such as a
"hire-to-kill" case (where a battered woman hires
or arranges with a third party to assault or kill
her batterer).21 

In Ohio, however, the more limiting later decisions
by intermediate appellate courts seem to reflect a
more consistent refusal to permit the use of expert
testimony in anything but a traditional self-
defense situation;22 indeed, as will be discussed
in Section III.A.3. below, some of the decisions go
so far as to find that a state statute enacted
subsequent to the Ohio Supreme Court's Koss
decision, supra note 3 (which overruled its
previous holding that expert testimony on battering
and its effects was inadmissible), excludes the use
of expert testimony in anything but a self-defense
case.23

In seven states (Alabama, Alaska, Louisiana,
Missouri, Nebraska, North Carolina, and Rhode
Island), although there has been no square holding
by any court, there are intermediate or high court
decisions that implicitly recognize the
admissibility of expert testimony on battering and
its effects without discussing the issue (coded
"AR").24

In yet another six states (Idaho, Kentucky,
Michigan, New Hampshire, South Dakota, and
Vermont),25 such testimony is admissible but only
on a limited basis (coded "AL") (usually, not on
the broader question of self-defense or the
defendant's state of mind, but on more specific
issues such as to explain the defendant's conduct;
or it is considered admissible to explain battering
and its effects in general but not whether the
defendant herself is a battered woman or "suffers
from battered woman syndrome"). (The "AL"-coded
cases can reasonably be considered to be a subset
of the "AH"-coded cases, in which case the
percentage of states with a square or essentially
square holding of admissibility would be 53 rather
than 41 percent.)

In six other states (Arkansas, District of
Columbia, Maine, Indiana, Mississippi, and
Oregon)26 (coded as "AC"), expert testimony is
admissible only if certain conditions are first met
(e.g., showing that such testimony is accepted in
the scientific community). 

Finally, in 10 states (Arizona, Colorado, Iowa,
Maryland, Nevada, North Dakota, Tennessee,
Virginia, West Virginia, and Wyoming)27 (coded
"D"), it appears such testimony is admissible, but
there are only intermediate or high court decisions
discussing its content, not the standards for its
admission. And, for the remaining state (Delaware)
(coded "O"), it appears only that expert testimony
has been admitted in one case at the trial level.28

2. Admissibility of expert testimony: exclusion
under state case law

While every state has at least one decision in
which it at least appears from the court's
discussion that expert testimony on battering and
its effects was admitted or considered admissible
(even if the standards for admissibility have not
been the subject of case law), 18 states have
excluded expert testimony in other cases, either
outright (coded "E");29 or -- most commonly -- in a
limited way or on the particular facts of the case
(e.g., because the case involved not a self-defense
claim, but a duress defense) (coded "EL");30 or --
in Wyoming -- unless and until certain conditions
are met (e.g., demonstrating scientific acceptance
of the "battered woman syndrome") (coded "EC").31 

Of these states, Wyoming is the only one where the
admissibility under case law of expert testimony in
still largely in doubt.32 It should also be noted
that of the 35 decisions excluding testimony in
some way, almost 25 percent (8) were Ohio
decisions. Georgia, Louisiana, and Montana each
account for nearly 10 percent (3) of the decisions.

3. Admissibility of expert testimony: admissibility
under state statute

In addition to or apart from the case law
summarized above, in 12 states (California,
Georgia, Louisiana, Maryland, Massachusetts,
Missouri, Nevada, Ohio, Oklahoma, South Carolina,
Texas, and Wyoming), expert testimony on battering
and its effects is admissible pursuant to a state
statute. All but two of these statutes were passed
within the last four years. (In addition,
legislation related to the admissibility of expert
testimony has been introduced in a number of states
since 1990. According to LEXIS searches conducted
in August and September 1994 and April 1995, as
well as information provided to the National
Clearinghouse, legislation was proposed in 1993,
1994, and 1995 in at least 15 states (California,
Colorado, Connecticut, Hawaii, Illinois, Indiana,
Massachusetts, Nebraska, New Jersey, New York,
Pennsylvania, South Carolina, Utah, Vermont, and
Wisconsin) plus the District of Columbia. Some of
this legislation is "dead," while other bills
appear to be pending. More detailed information
about the pending legislation is available in the
National Clearinghouse's Legislative Update.)

In some instances, no court decisions addressing
the admissibility issue appear after enactment of
the statute, suggesting that the statute may have
had the effect of putting an end to any doubt as to
the admissibility of such expert testimony. In
others (notably Ohio and Missouri), enactment of
statutes has been used by the courts to restrict
the admissibility of the testimony to self-defense
cases. While neither statute indicates on its face
that by addressing the self-defense situation the
legislature intended to preclude the use of expert
testimony in any other criminal context, those
states' courts have interpreted these statutes in
this restrictive fashion (see OH [Pargeon and
Lundgren, supra note 6] and MO [Anderson and Clay,
supra note 24]).33 Thus, it is important that
California and Massachusetts have specifically
included language to the effect that enactment of
the statute is not intended to preclude the use of
expert testimony in civil or criminal actions where
it was already admissible under case law, and the
South Carolina statute itself provides that it
"does not preclude the admission of testimony on
battered spouse syndrome in other criminal actions"
beyond those specified therein.34

The majority (eight) (California, Louisiana,
Massachusetts, Missouri, Nevada, Oklahoma, South
Carolina, and Texas) of the statutes use mandatory
rather than permissive language; that is, they
provide either that expert testimony "shall be
admitted," "is admissible" or that the defendant
"shall be permitted to introduce" such evidence.35
The remaining four (Georgia, Maryland, Ohio, and
Wyoming)36 use permissive language such as "may
introduce."

Half of the statutes (California, Maryland,
Missouri, Ohio, South Carolina, and Wyoming) refer
specifically to expert testimony on "battered woman
syndrome"37 or use the related term "battered
spouse syndrome."38 39 The others (Georgia,
Louisiana, Massachusetts, Nevada, Oklahoma, and
Texas) are more generic in their language,
referring to the nature and effects of "domestic
violence,"40 "family violence"41 or "physical,
sexual or psychological abuse"42 on the beliefs,
behavior and perceptions of the person being
abused. Although, as discussed earlier, three
(Ohio, Missouri, and Wyoming) of the five states
whose statutes use syndromic language are notable
for their restrictive case law on the admissibility
of expert testimony, there does not appear to be an
ironclad correlation between the statutory language
used and the way the states (as measured by their
case law) view admissibility. 

For example, Wyoming's restrictive decisions
predated its statute. In addition, Louisiana, one
of the states that uses generic language, ranked
high in the number of decisions excluding expert
testimony (although two of these were rendered
prior to enactment of the statute). On the other
hand, the other five states that use generic
language (Georgia, Massachusetts, Nevada, Oklahoma,
and Texas) do have a record of appellate decisions,
both before and after enactment of the statute,
that is broadly accepting of the admissibility of
expert testimony. So does California, whose statute
refers to testimony on battered woman syndrome but
also, more broadly, on the effects of battering. On
balance then, to avoid misconceptions about the
permissible scope or admissibility of expert
testimony on battering, it would appear preferable
to use more generic statutory language.  

4. Admissibility of expert testimony: admissibility
under federal case law

Of the eight federal appellate courts (11th, 10th,
9th, 8th, 7th, 6th, 5th, and 3rd Circuits) and 11
federal trial courts (N.D.Ill., S.D.N.Y., E.D.N.Y.,
D.Kan., D.Hawaii, S.D.Ohio, N.D.Ala., S.D.Fla.,
W.D.La., E.D.Pa., and U.S. Tax Ct.) that have
considered the issue, all but five (9th Cir., 7th
Cir., 6th Cir., S.D.N.Y., and S.D.Ohio)43 have
admitted expert testimony on battering and its
effects. Only one (7th Cir.)44 of the five has
excluded the testimony outright, while the other
four (9th Cir., 6th Cir., S.D.N.Y., and S.D.Ohio)45
have excluded it on the facts of the case or on
some other limited basis, such as counsel's failure
to give the required advance notice that expert
testimony would be offered. Moreover, two of the
Courts of Appeals (9th and 6th Circuits)46 that
excluded testimony on a limited basis have admitted
such testimony in other cases.

Three of the Courts of Appeals (10th, 9th, and 8th
Circuits)47 have admitted such testimony squarely
(coded "AH"), as have two federal district courts
(D.Kan. and S.D.Fla.).48 Another circuit (6th Cir.)
(plus one of the circuits that also has made a
square holding (8th Cir.)) has recognized the
admissibility of the testimony without discussing
it (coded "AR").49 One district court (N.D.Ill.)
(together with one circuit that has also made a
square holding of admissibility (9th Cir.))
admitted testimony with limitations on its scope
(coded "AL").50 Two district courts (E.D.Pa. and
N.D.Ill.) (one of which -- N.D.Ill. -- recently
admitted the testimony with limitations) have
admitted it conditionally (coded "AC").51

Seven additional federal courts (11th Cir., 5th
Cir., 3rd Cir., E.D.N.Y., N.D.Ala., W.D.La., and
Tax Ct.)52, and three (10th, 9th, and 6th Circuits)
that also have holdings of admissibility coded
"AH," "AR," "AL" or "AC," have discussed the
content of expert testimony but not the standards
for admissibility, indicating that such testimony
has nevertheless been admitted.

B. Types of Cases in Which Expert Testimony
Admitted

As briefly mentioned in Section II.B. supra, each
case was considered to fall within one of three
categories: (1) self-defense, (2) non-self-defense
or (3) other, and was assigned the most appropriate
code within that category.

Thus, cases in which a battered woman defendant
charged with homicide, assault or similar charges
claimed she acted in self-defense were coded as
either a (1) traditional self-defense during a
confrontation (coded "CO"); (2) nontraditional
self-defense situation, e.g., assaulting or killing
the batterer while he slept or was lying down,
referred to for convenience as a "sleeping man
case" (coded "SM"); or (3) "hire to kill case,"
that is, where a battered woman defendant hires or
arranges with a third party to assault or kill her
batterer (coded as "HK").

Non-self-defense cases in which other criminal or
quasi-criminal charges were brought against a
battered woman were coded as either a (1)
duress/coercion case, e.g., where a battered woman
defendant asserted she performed the criminal act
for which she was charged only because she feared
she was in danger of imminent harm from her
batterer (coded "DU"); (2) case involving a crime
against a third party, not the batterer, not
asserted to have been done under duress, e.g.,
killing the batterer's girlfriend (coded "3rd"); or
(3) termination of parental rights case, in which a
battered woman's alleged failure to protect her
children from abuse or harm, generally from her
batterer, results in an effort to terminate her
rights as a parent (coded as "TPR") (note that
cases wherein criminal charges are lodged against
the battered woman for abusing or harming her
children fall within the "3rd" category).

Cases treated as falling within the "other"
category were (1) civil cases, e.g., tort or
domestic relations actions (coded "CI") and (2)
criminal cases involving the prosecution of a male
batterer or male sexual assailant, wherein the
prosecution offered expert testimony on battering
and its effects or the use of such testimony was
discussed by the court (coded "PR"). 

In addition to being coded under one of the three
foregoing categories, where applicable, cases were
assigned a code to reflect a holding that (1) it
was permissible to deny the battered woman
defendant funds to obtain an expert witness (coded
"FY") or (2) it was not permissible to deny funds
for an expert witness (coded "FN"). Finally, each
case was coded as to whether it involved a claim
that a battered woman defendant's trial counsel
rendered ineffective assistance, primarily based on
challenges to failure to offer expert testimony on
battering, i.e., "Y" (counsel was ineffective), "N"
(counsel was not ineffective), or "N/A" (not
applicable).

1. Types of cases in which expert testimony
admitted: "traditional" and "nontraditional" self-
defense/state cases

As would be expected, expert testimony on battering
and its effects is most readily accepted in cases
involving traditional self-defense situations,
i.e., where a battered woman defendant kills her
batterer during a struggle or in response to an
obvious, immediate threat. (There were just a
handful of cases in which the defendant claimed
her/his actions were also or solely taken in
defense of another person,53 so these were not
categorized separately.) Ninety percent of the
states (45)54 have admitted testimony in
traditional self-defense cases, either with a
square or limited holding or without discussing the
standards for admissibility.

As mentioned in the introduction to this section,
for this analysis, cases in which a battered woman
defendant asserted that she acted in self-defense,
where her batterer was killed or assaulted other
than in the midst of a struggle with her or other
than in response to an obvious, present threat,
were coded as one of two kinds of nontraditional
self-defense cases -- a "sleeping man case" or a
"hire-to-kill case." By coding these separately, we
do not intend to indicate that such cases involve
any less of a legitimate self-defense situation
than the more traditional situation. Moreover, we
admittedly made a fine and perhaps arguable
distinction between cases in which, for example, in
the midst of a confrontation, the batterer goes
into another room and the defendant then kills him
(which were coded "CO"), and those in which
following a confrontation, he lies down on a bed or
couch and she then kills him (which were coded
"SM"). However, it seemed reasonable to categorize
and track such cases separately in light of a
popular perception, evidenced by some dramatic
made-for-television movies, that battered women
typically kill their batterers while they are
asleep or during a "lull in the violence,"55 and
also to determine whether the courts treated such
nontraditional self-defense situations differently
(in terms of the admissibility of expert testimony
on battering).56

Expert testimony has been admitted by a substantial
minority of states in the more controversial,
nontraditional self-defense situations. That is, 29
percent of the states (15) (Alabama, California,
Georgia, Kansas, Michigan, Minnesota, Nevada, New
Hampshire, New York, North Carolina, North Dakota,
Ohio, South Carolina, Tennessee, and Wisconsin)57
have admitted expert testimony in a "sleeping man
case." Only three states (Louisiana, New York, and
Ohio)58 (two of which admitted it in other sleeping
man cases) have explicitly refused to admit expert
testimony in some such cases. Moreover, nearly one-
fifth of the states (10) (Alabama, Colorado,
Delaware, Florida, Massachusetts, North Carolina,
Ohio, Tennessee, Texas, and Washington)59 have
admitted such testimony in a "hire to kill case."
Only four states (Illinois, Maryland, Missouri, and
Montana)60 have explicitly refused to admit expert
testimony in such cases.

2. Types of cases in which expert testimony
admitted: as offered by the prosecution/state cases

Apart from its use in self-defense situations, the
most striking trend in the acceptance of expert
testimony on battering is its use by the
prosecution against batterers. Typically, in these
cases, the battered woman has given an initial
statement about the assault on her to the police, a
grand jury or at a deposition, but at trial, she
recants her earlier statement. In rebuttal, the
prosecution then offers expert testimony to explain
and impeach the witness' inconsistent statements.
In another typical fact pattern, expert testimony
on battering is used by the state (often in
rebuttal) to explain other conduct of a complainant
who has been sexually assaulted by her batterer,
such as delayed reporting of the incident, not
leaving the battering relationship or escaping from
a kidnapping-type situation, or lack of consent to
sex.

In 29 percent of the states (15) (Alaska,
Connecticut, Florida, Georgia, Hawaii, Illinois,
Indiana, Minnesota, Nebraska, New Hampshire, New
Jersey, New York, Washington, Wisconsin, and
Wyoming),61 expert testimony on battering and its
effects has been admitted for such purposes, or
discussed with favor by the court in cases
involving prosecutions for sexual assault in a non-
battering context. Note that we did not attempt to
survey and do not here report on all sexual
assault/child sexual abuse cases; rather, in the
course of researching the admissibility of expert
testimony on battering, some cases were found
involving sexual assault issues in a non-battering
situation, where the court discussed the analogous
admissibility of expert testimony on battering as
part of its discussion of the admissibility of
expert testimony, for example, on child sexual
abuse accommodation syndrome or about the typical
characteristics or "profile" of male perpetrators.
Because these cases reflect a jurisdiction's
position on the admissibility of expert testimony
on battering, particularly when offered by the
prosecution, they were included in the database for
this analysis.

Expert testimony has been found admissible for the
purpose of explaining the battered woman's
recanting her earlier complaint in five states
(Alaska, Connecticut, Indiana, Hawaii, and
Wisconsin).62 Moreover, a total of ten states
(Connecticut, Florida, Georgia, Illinois, Nebraska,
New Jersey, New York, Washington, Wisconsin, and
Wyoming) have permitted the use of expert testimony
to explain other conduct of the complainant or
bolster her credibility -- five in cases involving
the conduct of a battered woman63 and the other
five in sexual assault or child abuse cases not
involving a battered woman, but where the
admissibility of expert testimony on battering for
similar purposes was discussed with favor.64 

However, in seven states (Alaska, Georgia, Kansas,
Kentucky, New Jersey, Ohio, and Oregon),65 three of
which have also admitted such testimony in other
cases, "profile" testimony has been found
inadmissible against male defendants, primarily
those charged with sexual assault.

Although it is conceivable that expert testimony on
battering and its effects could be offered by the
prosecution against a batterer in lieu of direct
testimony by a battered woman who refused to
testify at trial, no reported cases were found in
which this occurred. However, two cases were found
in which expert testimony was admitted to
corroborate the out-of-court statements of battered
women who had been killed, and therefore were
unavailable to testify.66

3. Types of cases in which expert testimony
admitted: non-self-defense/state cases

In a sizable minority of states, expert testimony
on battering and its effects has been admitted in
non-self-defense cases, which generally fall into
two, potentially overlapping, categories. To
reiterate the explanation in the introduction to
this section, where a battered woman defendant
committed a crime (e.g., selling drugs) and
asserted as a defense that she did so under duress
or coercion by her batterer, the case was coded
"DU." Where she committed crimes against a third
party, not the batterer (e.g., killing the
batterer's girlfriend), but did not assert that she
did so under duress, the case was coded "3rd."
Seven cases could be coded as either or both,67 but
were tabulated as a duress case only in order to
better track the issue that appears most directly
relevant to the permissible scope of expert
testimony.

Sixteen percent of the states (eight) (California,
Kansas, Minnesota, New Jersey, Oklahoma, Oregon,
Virginia, and West Virginia)68 have admitted
testimony in duress cases, while 10 percent (five)
(Alabama, Kentucky, Michigan, Ohio, and
Washington)69 have refused to do so. Fourteen
percent of the states (seven) (Florida, Illinois,
Indiana, Massachusetts, Minnesota, Missouri,
Montana, and Rhode Island)70 have admitted
testimony in third party cases, while two (Missouri
and Ohio)71 have refused to do so.

While the primary focus of this research was on the
use of expert testimony in criminal actions
involving battered women, in the course of our
research, a small number of civil actions
(comprising five percent of the total state courts'
database of nearly 240 cases) were reviewed.
Typically, these cases involve personal injury
actions brought by a formerly battered woman
against her former batterer, child custody
determinations, or marital dissolutions. While the
use of expert testimony in the civil context
appears to be relatively infrequent (indeed, a
battered woman plaintiff's attorney erroneously
claimed that an August 1994 New Jersey trial court
decision was the first time "battered woman
syndrome" had been used in any civil action in the
United States),72 it is certainly possible that
there are additional civil cases that we did not
become aware of during our search. It may also be
that the use of expert testimony in such civil
actions is occurring at the trial level, and that
the decisions are simply not being reported.
Regardless, with growing awareness of the
applicability of such testimony to the civil
context, it is likely that it will be used in more
cases in the future.

With these caveats in mind, it is noteworthy that
expert testimony on battering and its effects has
been used in civil actions in at least 11 (20
percent of the) states (Colorado, Connecticut,
Idaho, Louisiana, Maryland, Missouri, Montana,
Ohio, Pennsylvania, South Carolina, and Vermont).73
It has also been used in at least three states
(Nebraska, New York, and West Virginia)74 in cases
involving termination of parental rights
(typically, where the batterer is abusing the
children also, and the issue is whether the
battered woman/mother neglected or failed to
protect them). Interestingly, in only four civil
cases75 (and none of the termination cases) was
there explicit or implicit discussion by the court
of the admissibility of the expert testimony; in
all the others (coded "D"),76 there was no square
holding and the court merely discussed the contents
of the testimony (which was allowed to be
introduced).

4. Types of cases in which expert testimony
admitted: provisions of state statutes

Each of the 12 state statutes identified in Section
III.A.3. supra provides for the use of expert
testimony on battering and its effects in a
criminal action in which self-defense has been
raised (although, e.g., Georgia, Nevada, and Texas
restrict the admissibility of the testimony to
cases where the defendant has killed, rather than
merely assaulted, someone).77 Both the California
and Nevada statutes78 provide that the testimony
can be used either in the case in chief or in
rebuttal, suggesting that it can be offered by the
prosecution against an accused batterer.

By statute, Massachusetts and South Carolina79, and
perhaps Nevada80, permit the use of expert
testimony in cases where duress is raised as a
defense. Only the California, Massachusetts, and
Oklahoma statutes appear to contemplate the use of
testimony in a civil matter.81 

5. Types of cases in which expert testimony
admitted: federal cases

The much smaller sample of 31 federal court cases
reveals one major trend -- the use of expert
testimony on battering and its effects in cases
where a duress defense is raised. Since the federal
courts rarely have jurisdiction of battered women's
self-defense cases (except cases where killings
occurred on a Native American reservation or a U.S.
military facility, or habeas corpus petitions), it
is not surprising that most federal case law on the
issue arises out of drug, wiretap, or fraud cases.
Two-thirds of the federal courts admitting expert
testimony (11 of 16 courts) do so in a duress
case.82 Two federal courts (9th and 7th Circuits)83
have refused to admit such testimony in a duress
case, and testimony was also excluded by a federal
district court (S.D.N.Y.) in a limited way in a
conspiracy/bribery case in which the battered woman
defendant disclaimed a duress defense.84

Of the 16 federal courts admitting expert
testimony, more than one-third (six) (10th Cir.,
9th Cir., 8th Cir., 6th Cir., E.D.Pa., and
D.Hawaii)85 have done so in traditional self-
defense cases. But two federal courts (6th Cir. and
S.D.Ohio)86 have excluded the testimony in
traditional self-defense cases, albeit on limited
grounds as discussed in Section III.A.4. supra. It
should be noted that two federal courts (5th Cir.
and W.D.La.)87 have admitted expert testimony in
one hire-to-kill case, and two (9th and 8th
Circuits)88 have admitted it when used by the
prosecution.

C. Showing Necessary to Introduce Expert Testimony

1. Showing necessary to introduce expert testimony:
under state case law

When Maguigan looked at this issue in 1991, there
was very little information discernable from the
reported decisions as to what showing was necessary
before a defendant could have expert testimony on
battering and its effects admitted. While there is
still no information at all on this question for 20
(40 percent of the) states89 (or, it can only be
said that testimony has been admitted without
discussion as to the necessary preliminary
showing), there is somewhat more information
available at this time, and some trends can be
detected.

Of those states that have discussed this issue, the
most common requirement is that there be a self-
defense claim being raised. Nearly 40 percent of
the states (18)90 have this requirement. In
addition, two states (Indiana and Ohio)91 may
require that there be evidence of an overt act of
aggression by the deceased sufficient to
substantiate a self-defense claim, as well as prima
facie evidence of self-defense by the defendant
before expert testimony can be introduced. One
(Missouri)92 requires just prima facie evidence of
self-defense.

Twenty-seven percent of the states (14) (Alaska,
District of Columbia, Florida, Georgia, Kansas,
Kentucky, Massachusetts, Minnesota, New Jersey, New
Mexico, Ohio, Oregon, Washington, and Wyoming)93
have required some evidence that "battered woman
syndrome" is accepted in the scientific community.
However, nine states (Connecticut, Florida,
Illinois, Minnesota, Missouri, New York, Ohio,
Utah, and Washington)94 have specifically said that
there need not be any such showing made, i.e., it
is beyond question that "battered woman syndrome"
is commonly accepted in the scientific community.
Of these nine, four (Florida, Minnesota, Ohio, and
Washington) have also required evidence of
scientific acceptance in other cases; but of the
four, only Florida shows a pattern of requiring
evidence of scientific acceptance in earlier
decisions, followed by later decisions not
requiring such evidence.

One-third of the states (17) (Connecticut, District
of Columbia, Florida, Hawaii, Kentucky, Louisiana,
Maine, New Jersey, New Mexico, New York, Ohio,
Oklahoma, Oregon, Rhode Island, South Carolina,
Utah, and Washington)95 have explicitly required
that the proffered expert must be properly
qualified as such. While qualification of a witness
as an expert is typically required in all kinds of
cases, the language used by these courts suggests
that they are underscoring this requirement when it
is applied to expert witnesses on battering and its
effects.

One-fifth of the states (10) (Florida, Georgia,
Maine, Massachusetts, Ohio, Oklahoma, Pennsylvania,
Washington, Wisconsin, and Wyoming)96 require that
the defendant must first show she is in fact a
battered woman before expert testimony on battering
and its effects can be introduced; only one
(Texas)97 has explicitly held that a defendant need
not first make such a showing. 

2. Showing necessary to introduce expert testimony:
under state statute

Of the 12 state statutes, 42 percent (5) (Georgia,
Louisiana, Ohio, Texas, and Wyoming)98 require that
there be a claim of self-defense in order for the
expert testimony to be admissible. One-fourth of
the state statutes (3) (Louisiana, Maryland, and
Oklahoma)99 require, essentially, that the
defendant first establish that she is a battered
woman (i.e., that there is some evidence of prior
domestic violence at the hands of the deceased).

Also, of the 12 state statutes, three (California,
Ohio, and South Carolina)100 provide that there is
no need to establish that there is acceptance of
"battered woman syndrome" in the scientific
community in order for the expert testimony on
battering to be admitted. The South Carolina
statute also provides that a sufficient foundation
for admission of the testimony is laid "if the
proponent of the evidence establishes its relevancy
and the proper qualifications of the witness"101
and that lay testimony regarding the batterer's
actions and how they contributed to the incident
underlying the criminal charge may be "used to
establish the foundation for evidence on the
battered spouse syndrome."102 Finally, in Missouri,
although the statute refers to "battered spouse
syndrome," an intermediate appellate court has held
that the use of expert testimony on battering is
not to be restricted to cases involving spouses.103

3. Showing necessary to introduce expert testimony:
under federal case law

As to the federal courts, there is only a
smattering of information available on the showing
necessary to introduce expert testimony on
battering and its effects. Of the 19 courts in the
database, three appeals courts (8th, 9th, and 10th
Circuits) and three district courts (E.D.Pa.,
S.D.Ohio, and S.D.N.Y.) have spelled out some
position on what showing must be made in order to
have expert testimony on the effects of battering
admitted. Each of the factors mentioned by these
courts is cited by only one or two courts.

That is, one appeals court (10th Cir.)104 has found
that a claim of self-defense must be asserted in
order to introduce expert testimony, while two (9th
and 8th Circuits)105 have found that the testimony
is not limited to cases where a self-defense claim
is asserted. Two district courts (E.D.Pa. and
S.D.N.Y.)106 have held that the defendant must
first establish evidence that she is a battered
woman before the expert testimony can be
introduced.

As to the more general requirements for
introduction of expert testimony, two district
courts (S.D.Ohio and E.D.Pa.)107 have required some
showing of the acceptance of "battered woman
syndrome" in the scientific community, while
another (S.D.N.Y.),108 in a more recent decision,
has found that no such showing need be made. Two
federal courts (8th Cir. and E.D.Pa.)109 have
explicitly required qualification of the proffered
expert witness. And two federal district courts
(S.D.Ohio and E.D.Pa.)110 have found that the
probative value of the proffered testimony must
outweigh any potential prejudice arising therefrom.

Finally, one circuit (9th Cir.) strictly enforces
procedural rules requiring advance notice of the
intent to introduce expert testimony and has upheld
its exclusion on this basis in two recent
decisions.111

D. Ineffective Counsel Issues

1. Ineffective counsel issues: state cases

In fewer than ten percent (21) of the 238 state
cases in the database, an issue arose as to whether
trial counsel was ineffective, primarily (though
not exclusively) for failing to offer expert
testimony on battering and its effects or failing
to get it admitted. The 15 jurisdictions that have
considered this issue have split into two camps on
how they have disposed of this claim. Sixty percent
of these states (nine) (Alabama, Georgia, Michigan,
Minnesota, New Mexico, New York, Ohio, South
Carolina, and Wisconsin)112 (in a total of 12
decisions) found that counsel was not ineffective;
the other 40 percent (six states) (California,
Delaware, Nevada, Pennsylvania, Tennessee, and
Wisconsin)113 have rendered a total of nine
decisions finding there was ineffective assistance
of counsel.

A somewhat related issue is whether state funds are
sought or are made available to an indigent
defendant to hire an expert witness. Each of the
five states that has considered the issue (Georgia,
Kansas, Mississippi, Montana, and Tennessee)114 has
held that it was acceptable to deny such funds
(although one of these, Kansas' Dunn decision, was
reversed by the federal courts). Ironically, of
these five states, Tennessee has also found counsel
to be ineffective for not presenting expert
testimony, suggesting a "Catch-22" whereby counsel
is ineffective if s/he does not put on an expert,
but funds will not be provided to enable an
indigent defendant to do so.

2. Ineffective counsel issues: federal cases

In the federal courts, the ineffective counsel
issue has only arisen in two circuits (9th and 6th
Circuits) (in three separate cases), and both found
counsel not to have been ineffective.115

The expert witness funds issue has only arisen in
one case, and as alluded to above, both the federal
appellate court (10th Cir.) and the lower federal
court (D.Kan.) found that it was improper to deny
the defense funds to obtain an expert witness on
battering and its effects.116

E. Scope and Relevance of Expert Testimony

There tends to be a fair amount of discussion by
the courts as to the issues on which expert
testimony on battering and its effects are relevant
and admissible. There is significant consensus on a
number of these. To understand the following
results it should be kept in mind that a given
jurisdiction often finds that expert testimony is
relevant and admissible on a number of different
issues. This may reflect the nature of the case
(e.g., traditional self-defense during a
confrontation versus a "hire-to-kill" or duress
case), the specific facts of the case or the
specific issues raised by the defendant on appeal.
It should also be remembered that some of these
holdings are made in the context of civil actions
or prosecutions of male batterers.

1. Scope and relevance of expert testimony: effects
of battering in general/state cases

An astounding 76 percent of the states (39) have
found expert testimony on battering and its effects
admissible to prove the defendant is a battered
woman or "suffers from battered woman syndrome."117
Nearly as many, 35 states or 69 percent,118 have
found "generic" expert testimony admissible, i.e.,
to explain battering and its effects generally. Of
these, 10 states (20 percent) (Alaska, Georgia,
Kentucky, Michigan, Minnesota, Ohio, Pennsylvania,
South Dakota, Vermont, and Wisconsin)119 prohibit
the expert from expressing an opinion whether the
defendant herself is a battered woman or "suffers
from battered woman syndrome." 

In an interesting variation on this issue, expert
testimony on battering and its effects has been
used to help gain reversal of a conviction by
showing that a battered woman defendant had been
unable to assist her trial counsel with the
preparation of her defense.120 

2. Scope and relevance of expert testimony: self-
defense issues/state cases

There is consensus that expert testimony on
battering and its effects is relevant to a
determination of the validity of a self-defense
claim. Nearly 70 percent of the states (35)121 have
found expert testimony to be relevant to supporting
a self-defense claim generally. Similarly, slightly
more than two-thirds, or 35 states,122 agree that
expert testimony is relevant to the defendant's
state of mind at the time of the charged crime.
(Only one state, Wyoming, has found expert
testimony to be not relevant to support a self-
defense claim.)123

It is beyond the scope of this analysis to provide
correlations between the states' self-defense
standards and their view of the scope of expert
testimony on various self-defense issues. However,
in considering the following, more specific
results, it is helpful to keep in mind Maguigan's
finding that

There are only two apparent correlations between a
state's conclusions about the purpose of expert
testimony and its definitions of the standard of
reasonableness and of the temporal proximity of
danger. First, states that define the harm
threatened as imminent are more likely than those
requiring immediacy to receive expert testimony on
the theory that it is relevant to the jury's
assessment of the reasonableness of the defendant's
judgment about the proximity of the harm
threatened. [footnote omitted]
...second...[j]urisdictions that include a
subjective inquiry in the reasonableness standard
are slightly more likely than objective ones to
require a special instruction on the significance
of battered-woman-syndrome testimony or to include
specific reference to the testimony in the jury
charge on the reasonableness standard. [footnote
omitted] (140 U. Pa. L. Rev. at 431.)

Somewhat more than half of the states (27) have
found such testimony relevant to the assessment of
the reasonableness of the defendant's belief that
she was in danger of imminent harm and/or of her
conduct in defense of self or others.124 (Note that
just two states (Georgia and Wyoming) have found
the testimony to be not relevant to the assessment
of reasonableness.)125 In addition, 19 states (37
percent) have found that expert testimony is
relevant to the defendant's perception of the
temporal proximity of the perceived danger to life
or safety.126 A handful of states (6) (California,
Georgia, Maryland, New Jersey, North Dakota, and
Ohio)127 have said that expert testimony is
relevant to show the honesty of the defendant's
belief that she faced imminent danger from the
deceased to her life or safety. One of these states
(Ohio)128 also joins Washington129 in finding the
testimony to be relevant to assessing the
proportionality of the force used by the defendant
in self-defense.

A considerable minority -- more than a quarter of
the states (14) (Alaska, Florida, Georgia, Kansas,
Maine, New Hampshire, New Mexico, New York, North
Carolina, Oregon, South Carolina, Tennessee, Texas,
and Virginia)130 -- have found an expert can give
an opinion on the "ultimate question" for the
factfinder of reasonableness on whether the
defendant acted in self-defense. But a larger group
of 19 states (37 percent)131 has held that an
expert cannot testify on the ultimate issue.

3. Scope and relevance of expert testimony:
understanding the defendant's conduct/state cases

In a related vein, many courts have come to
recognize the difficulty that juries and even trial
judges may have in giving credence to a battered
woman's self-defense claim, due to their feeling
that the defendant should have left the battering
relationship rather than "take matters into her own
hands" in the way she did. Or, they argue that if
the claimed past history of abuse had "really been
so bad," she would have left. 

Thus, it is significant that fully two-thirds of
the states (34) have considered expert testimony on
battering and its effects to be relevant to the
question of why the defendant did not leave the
relationship or to explain other conduct, including
acts done under duress by the batterer.132 However,
six states (Alabama, Illinois, Michigan, Montana,
Ohio, and Washington)133 have found expert
testimony to be not relevant to the question of why
the defendant did not leave the relationship or
other conduct, including actions claimed to have
been taken under duress. 

Understanding a battered woman's actions or failure
to act also has significance in a termination of
parental rights case, where it is typically alleged
that a battered woman failed to protect her
children from an abusive husband or boyfriend.134
This issue can also arise in child custody or
marital dissolution cases. While such cases were
not a major focus of this research, we became aware
of some such cases where expert testimony was
involved. Though this is therefore not an
exhaustive list, in at least three states
(Nebraska, New York, and West Virginia),135 in the
context of parental rights termination actions,
courts have discussed the content of expert
testimony on battering and its effects, used to
explain the woman's apparent failure to take
protective action. In none of the cases we found
was the use of expert testimony for this purpose
precluded. 

While expert testimony on battering generally has
the effect of dispelling myths and misperceptions
about battered women, just one-third of the states
(17)136 have explicitly noted that such testimony
is admissible to rebut common myths and
misperceptions.  

4. Scope and relevance of expert testimony:
establishing diminished capacity/state cases

Almost 30 percent of the states (15)137 agree that
expert testimony on battering and its effects is
admissible to prove the defendant's diminished
capacity, mental defect, or a lack of intent to
commit the charged crime. Of these 15, 73 percent
(11) (Florida, Georgia, Illinois, Kansas,
Louisiana, Minnesota, Missouri, New York, Ohio,
Tennessee, and West Virginia) have also found the
testimony to be relevant to the defendant's state
of mind at the time of the offense.138

Six states (Kentucky, Louisiana, Michigan,
Missouri, New Jersey, and North Carolina) have
found in other cases that expert testimony is not
admissible to prove the defendant's diminished
capacity, mental defect, or lack of intent to
commit the charged crime.139 Interestingly, two of
these states (Kentucky and Michigan) plus six
others (California, Georgia, Massachusetts, Ohio,
South Carolina, and Wyoming) have found such
testimony is not generally relevant to the
defendant's state of mind at the time of the
offense.140 

5. Scope and relevance of expert testimony:
bolstering or attacking credibility/state cases

According to Maguigan (see 140 U. Pa. L. Rev. at
430, note 183), to make some decisions regarding
the relevance and scope of expert testimony on
battering and its effects, the courts resort to
existing evidentiary law on analogous questions.
Thus, in jurisdictions that permit bolstering of
ordinary witnesses' testimony, an expert's
testimony that tends to bolster a defendant's
credibility can be expected to be received (e.g.,
New Jersey). In those which prohibit bolstering in
general, the reverse is likely to occur (e.g.,
Montana). 

One-fourth of the states (12) (California,
Connecticut, Hawaii, Illinois, New Jersey, New
York, Ohio, Pennsylvania, Utah, Vermont, Wisconsin,
and Wyoming)141 have found expert testimony on
battering and its effects to be admissible to
bolster the defendant's credibility. These
jurisdictions generally observe that the testimony
is not rendered inadmissible merely because it also
has the effect of bolstering the defendant's
credibility. But in other cases, two of these
states (Connecticut and Pennsylvania) plus four
others (Kansas, Montana, Oregon, and Washington)142
have found that the testimony is not admissible to
bolster credibility. 

On a somewhat related issue, six states (Kansas,
Maine, New Mexico, New York, Ohio, and Texas)143
have said evidence of the defendant's prior bad
acts is admissible to rebut the expert testimony.
One of these (New York) has also held to the
contrary in another case, as have two other states
(Maryland and Washington).144

6. Scope and relevance of expert testimony: at
sentencing/state cases

Expert testimony on battering and its effects has
not only been introduced at trial on the issue of
the battered woman defendant's guilt. One-fifth of
the states (10) (Alabama, Alaska, Florida,
Illinois, Indiana, Maine, Minnesota, Ohio, Texas,
and Washington)145 have found such testimony to be
admissible to show the existence of mitigating
factors in the defendant's favor or otherwise
affect the sentencing phase of the trial. Two
states (Minnesota and North Carolina)146 have held
to the contrary.

7. Scope and relevance of expert testimony: as
offered by the prosecution/state cases

Given the increasing use by prosecutors of expert
testimony on battering against batterers, it is
unsurprising that five states (Alaska, Connecticut,
Hawaii, Indiana, and Wisconsin)147 have found this
testimony to be relevant to explain the
complainant's recanting prior testimony or
statements given against the batterer. Only one
state (Ohio)148 has held to the contrary.

On a related topic, it should be noted that one
state (New Hampshire) has found expert testimony on
battering relevant to show the batterer was not
insane where he claimed this as a defense.149

8. Scope and relevance of expert testimony: civil
actions/state cases

In the newer context of civil actions (see Section
II.B.3. supra), a few states have explicitly made
each of the following findings: (1) expert
testimony is relevant to a custody determination
(Connecticut, Maryland, and Montana);150 and (2)
expert testimony is relevant to the damages
determination in a tort action (Idaho and
Louisiana).151 Presumably, expert testimony has
actually been used for these purposes in additional
civil actions, which have not been reported or are
not within our limited civil database. 

Moreover, it will be recalled that in the vast
majority of the civil actions reviewed, no square
holding of admissibility was made; rather, the
contents of the testimony were discussed. Thus, it
is unsurprising that most of the courts have not
made specific pronouncements regarding the
permissible scope or relevance of the testimony.

9. Scope and relevance of expert testimony: no
information about scope or relevance/state cases

In 15 states152 there have been decisions wherein
the admissibility of expert testimony on battering
and its effects has been discussed or reference is
made to the use of testimony at the trial level,
but there is no information given in the decision
as to what the court considers to be the
appropriate scope or relevance of such testimony.
Fortunately, for only one such state, Arkansas, is
such a case the only decision on admissibility for
the state. 

10. Scope and relevance of expert testimony: state
statutes

Each of the 12 state statutes (California, Georgia,
Louisiana, Maryland, Massachusetts, Missouri,
Nevada, Ohio, Oklahoma, South Carolina, Texas, and
Wyoming) has some provision regarding the scope or
relevance of expert testimony. California, for
example, uses broad language, providing that expert
testimony on "battered women's syndrome" may
include "the physical, emotional, or mental effects
upon the beliefs, perceptions, or behavior of
victims of domestic violence."153 A shortened
version of this language is echoed in the Oklahoma
statute.154 The Massachusetts statute is also quite
expansive in its approach, providing for the
admissibility of expert testimony 

...regarding the common pattern in abusive
relationships; the nature and effects of physical,
sexual or psychological abuse and typical responses
thereto, including how those effects relate to the
perception of the imminent nature of the threat of
death or serious bodily harm; the relevant facts
and circumstances which form the basis for such
opinion; and evidence whether the defendant
displayed characteristics common to victims of
abuse.155

Seven state statutes (California, Georgia,
Louisiana, Maryland, Nevada, Ohio, and Texas)156
permit use of the testimony as to the defendant's
state of mind. Six (California, Missouri, Nevada,
Ohio, South Carolina, and Wyoming)157 find it
generally relevant to a self-defense claim. Five
(California, Georgia, Massachusetts, Ohio, and
Wyoming)158 specifically note its relevance to the
reasonableness of the defendant's belief that she
was in danger of bodily harm or death. These five
(California, Georgia, Massachusetts, Ohio, and
Wyoming)159 also find it relevant to the
defendant's perception of the temporal proximity of
the perceived danger, and one (Massachusetts)160
also finds it relevant to the proportionality of
the force used. 

Five (Massachusetts, Missouri, Ohio, South
Carolina, and Wyoming)161 state statutes provide
that the testimony may be used to show the
defendant is a battered woman or "suffers from
battered woman syndrome." One of these,
Massachusetts, provides for the admissibility of
such testimony (i.e., "whether the defendant
displayed characteristics common to victims of
abuse"), as well as generic testimony on battering
and its effects.162 

Finally, Ohio permits the testimony to establish
the defendant's diminished capacity, i.e., "to
establish the requisite impairment of the
defendant's reason, at the time of the commission
of the offense, that is necessary for a finding
that the defendant is not guilty by reason of
insanity."163

11. Scope and relevance of expert testimony:
federal cases

Among the 16 federal courts that have admitted
expert testimony, the most notable trend is that
expert testimony on battering and its effects is
relevant to the defendant's state of mind. Twelve
of the courts (75 percent) (10th Cir., 9th Cir.,
8th Cir., 6th Cir., 3rd Cir., N.D.Ill., E.D.N.Y.,
D.Kan., S.D.Ohio, N.D.Ala., S.D.Fla., and Tax
Ct.)164 have so held. Just one court (E.D.Pa.) has
held to the contrary.165 Five (10th Cir., 9th Cir.,
3rd Cir., N.D.Ill., and S.D.Fla.)166 of the 12
"state of mind" jurisdictions plus two other167
federal courts (5th Cir. and W.D.La.) have held
that the testimony is admissible to prove the
defendant's diminished capacity, mental defect, or
lack of intent to commit the charged crime.
However, three courts (9th Cir., 7th Cir., and
N.D.Ill.) have found to the contrary.168 

Nearly two-thirds (10) (10th Cir., 9th Cir., 8th
Cir., 6th Cir., 3rd Cir., E.D.N.Y., Tax Ct.,
W.D.La., E.D.Pa., and D. Hawaii)169 of the 16
courts admitting the testimony have found that it
is admissible to show the defendant is a battered
woman or suffers from "battered woman syndrome."
One of these circuits (8th Cir.)170 has also held
to the contrary in an earlier case. Further, six
(10th Cir., 9th Cir., 8th Cir., W.D.La., E.D.Pa.,
and D. Hawaii)171 of the ten courts that permit
expert testimony that the defendant is a battered
woman, plus one other federal court (S.D.N.Y.)172,
permit an expert to give more generic testimony
about the characteristics of battered women. 

A significant cluster of federal courts (nine)
(10th Cir., 9th Cir., 3rd Cir., N.D.Ill., S.D.N.Y.,
D.Kan., N.D.Ala., S.D.Ohio, and E.D.Pa.)173 have
found the testimony to be relevant to the question
of why the defendant did not leave the
relationship, or to explain other conduct including
actions taken under duress. One appeals court (9th
Cir.)174 has found the testimony admissible to
rebut common myths and misperceptions about
battered women, and one appeals court (8th Cir.)175
has found testimony relevant to explain the
complainant's recanting prior testimony against the
batterer.

In the 10 federal cases involving self-defense
situations, four federal courts (10th Cir., 8th
Cir., 6th Cir., and S.D.Ohio)176 have found expert
testimony to be relevant to supporting a self-
defense claim, and one (E.D.Pa.) has found to the
contrary.177

In a related vein, two federal courts (D.Kan. and
S.D.Ohio)178 have found the testimony to be
relevant to showing the reasonableness of the
defendant's belief that she was in danger of
imminent harm and/or her actions were in self-
defense, and one (S.D.Ohio)179 has found it
relevant to the defendant's perception of the
temporal proximity of the perceived danger to life
or safety.

A small number of the district courts (N.D.Ill.,
S.D.N.Y., and E.D.Pa.)180 have found that the
testimony can be admitted to bolster the
defendant's credibility, while an appeals court
(8th Cir.)181 has held to the contrary. On a
somewhat related issue, two courts (8th Cir. and
D.Hawaii) have said evidence of the defendant's
prior bad acts is admissible to rebut the expert
testimony.182 

Three federal courts (Tax Ct., S.D.Ohio, and
W.D.La.)183 have permitted experts to give an
opinion on the ultimate question before the
factfinder, while three others (9th Cir., N.D.Ill.,
and S.D.Fla.)184 have said this is not permissible.

Finally, three federal courts (notably, 9th Cir.
(which has considered the issue extensively) and
also 8th Cir. and E.D.N.Y.) have found expert
testimony admissible to show mitigating factors in
favor of the defendant or otherwise affect the
sentencing phase of trial.185

F. Expert Testimony Triggers Adverse Examination

1. Expert testimony triggers adverse examination:
state cases

A significant number of courts have considered the
question whether offering expert testimony on
battering subjects the defendant to an adverse
psychological examination by the prosecution. Of
the 11 states (22 percent) that have ruled on this
issue (Florida, Minnesota, Missouri, Montana,
Nebraska, New Hampshire, New Jersey, New York,
Ohio, Oklahoma, and Texas), the overwhelming
majority (10)186 have found that introducing expert
testimony can indeed trigger an adverse examination
by the prosecution. Essentially, what these courts
have found is that by placing her mental state at
issue, the defendant has opened herself up to this
inquiry by the prosecution and that compelling an
adverse examination, therefore, does not violate
her constitutional rights. 

Only Minnesota has gone the other way on this
issue, albeit with limitations; that is, by
limiting expert testimony to a general description
of battered woman syndrome and its characteristics
and by precluding the expert from testifying as to
whether a defendant "suffers from" battered woman
syndrome, Minnesota avoids the need for a compelled
adverse examination that it recognizes would
violate the defendant's constitutional rights.187
At least one Minnesota trial court has concluded
that a defendant may, however, voluntarily waive
her rights in this regard and undergo an adverse
examination, in order to be able to offer
defendant-specific expert testimony.188 

2. Expert testimony triggers adverse examination:
state statutes

Only two of the 12 state statutes (Missouri and
Ohio) address this issue, and both provide for an
adverse examination with limitations. The Missouri
statute189 provides for an adverse examination upon
the state's motion, but with the caveat that the
adverse expert cannot testify to any of the
defendant's statements that may be self-
incriminating. The Ohio statute -- the only state
statute that addresses the introduction of expert
testimony on battering and its effects to support
an insanity defense -- provides for an adverse
examination where any defendant (not only a
battered woman) has entered an insanity plea,190
consistent with the general practice in other
jurisdictions. Ohio also provides that the adverse
expert must consider in his/her findings evidence
that the defendant "suffered, at the time of the
commission of the offense, from the `battered woman
syndrome.'"191

3. Expert testimony triggers adverse examination:
federal cases

Only three federal courts have looked at this issue
-- two appeals courts (9th and 6th Cir.)192 have
found that the introduction of expert testimony
does subject the defendant to an adverse
examination, while one district court (N.D.Ill.)
has found to the contrary.193

G. Case Dispositions on Appeal

1. Case dispositions on appeal: state cases

In her 1991 article, Maguigan found that, of the
cases she studied, 40 percent of the appeals
resulted in reversals due to trial errors, a rate
that was significantly higher than the 8.5 percent
national average reversal rate for all homicide
appeals (140 U. Pa. L. Rev. at 386, 432-33).
Maguigan concluded that this higher reversal rate
for battered women defendants resulted, in the
majority of jurisdictions, from trial judges'
refusal to apply longstanding principles of
substantive, evidentiary, and procedural law to
their self-defense claims (Ibid at 437). Of
greatest interest for purposes of this analysis,
Maguigan found that of the reversals in battered
women's appeals, 16 percent were based on the trial
court's exclusion or limitation of expert testimony
on battering and its effects (Id at 433, note 192).
We also reviewed case dispositions on appeal, in
part to ascertain whether Maguigan's finding
applied equally where, as here, the entire database
was comprised of cases involving the use of expert
testimony. 

In this study, there were 238 state cases analyzed
for which case dispositions were available. Eighty-
six (36 percent) of these were eliminated from the
pool at this point because they represented
prosecutions of batterers or male defendants
charged with sexual assault (31 cases),194 civil
actions (13 cases),195 decisions on pretrial
motions (12 cases),196 or dispositions of cases at
the trial level (30 cases).197 The remaining 152
decisions by intermediate or high courts regarding
battered women defendants charged with crimes were
analyzed to determine how they were disposed of on
appeal. 

Of these 152 decisions, 63 percent (96) affirmed
the battered woman defendant's conviction and/or
sentence.198 This is quite similar to Maguigan's
finding that of all the battered women's self-
defense cases she studied (approximately 270
opinions),199 59 percent of the appeals resulted in
affirmances (Id at 432). 

However, we wanted to compare our finding with the
case disposition results for just the expert
testimony-related cases within Maguigan's total
database, in order to be more directly comparable.
Nearly half (about 130) of the 270 opinions
Maguigan studied were cited in footnotes to her
table of results (Id at 461-78), among them 86
cases also included in our database and which we
therefore identified as involving expert
testimony.200 Consistent with the methodology
described earlier in this section, six cases that
involved prosecutions of male defendants and civil
actions were eliminated from the pool at this
point, yielding 80 expert testimony-related cases
for comparative analysis. The affirmance rate for
these cases was calculated to be 53 percent,201
somewhat lower than the 63 percent rate found for
the 152 decisions in our database. Stated another
way, in the 80 expert testimony cases included in
Maguigan's database, five out of every ten battered
women defendants had their conviction affirmed on
appeal; but in the 152 expert testimony cases
analyzed for case disposition here, six out of
every ten battered women defendants had their
conviction affirmed on appeal. This indicates that
during the period between Maguigan's study and the
current one, the odds that a battered woman
defendant's conviction would be affirmed on appeal
in a case in which expert testimony was used or was
at issue increased by almost 20 percent. 

We also found that, of the 96 cases in our database
with affirmances, expert testimony on battering and
its effects had been admitted or found admissible
(that is, these decisions were coded either "AH,"
"AR," "AL," "AC," or "D") in 68 of them202 (71
percent of all affirmed convictions/sentences).203
Thus, notwithstanding the fact that in nearly
three-fourths of these cases, expert testimony was
used in the defense or the court recognized that it
was admissible, these battered women defendants'
convictions and/or sentences were still affirmed.
This is strong evidence that -- contrary to popular
misconceptions reflected in some media coverage of
this issue -- the defense's use of or the court's
awareness about expert testimony on battering and
its effects in no way equates to acquittal on the
criminal charges lodged against a battered woman
defendant. 

Of the remaining 56 cases in our database, the
conviction was reversed in 49 (32 percent of the
entire group of 152 cases). Of these, 22 (45
percent of all reversals) were reversed based on
erroneous exclusion of,204 limitation of,205 or
failure of counsel to present206 expert testimony
on battering and its effects. Significantly, these
22 cases represent just 14 percent of the 152
decisions in the pool. The other 27 cases (55
percent of all reversals)207 were reversed on other
grounds unrelated to the expert testimony issue. No
cases were found in which the conviction was
reversed due to erroneous jury instructions related
to expert testimony on battering.

The remaining seven cases (5 percent of the pool of
152) were remanded, six208 for reasons unrelated to
the expert testimony issue and one209 due to the
exclusion of expert testimony. 

The foregoing findings on reversals differ somewhat
from Maguigan's 1991 findings. She reported that 

Of the reversals in battered women's appeals, only
16 [percent] were based on the trial court's
exclusion or limitation of expert testimony on
battered woman syndrome. Other evidentiary errors
served as the basis for 32 [percent] of the
reversals. Reversals on sufficiency-of-evidence
grounds represented 10 [percent], while reversals
on the basis of errors in jury instructions
accounted for 41 [percent].

(Id at 433, note 192.)

Thus, at first blush, it appears that, while
Maguigan found that reversals related to exclusion
or limitation of expert testimony accounted for
only 16 percent of all reversals in battered
women's appeals, this analysis finds that errors in
this area accounted for more than three times as
many of the reversals (45 percent). However, the
difference in findings is in reality not that
major, when the comparison is again made to that
portion of Maguigan's base of cases that
represented expert testimony cases. As a check, we
made this comparison first, directly, using the
case disposition codes we assigned to Maguigan's 80
expert testimony cases and then, indirectly, by
extrapolating from Maguigan's findings. 

Using our assigned codes, we found that of the 80
cases, 34 (43 percent) were reversed on appeal.
Consistent with the foregoing comparison of
affirmance rates, this is somewhat higher than the
32 percent reversal rate found with respect to our
database. Of the 34 reversals, 16 (47 percent of
all reversals) were reversed based on erroneous
exclusion of, limitation of, or failure of counsel
to present expert testimony on battering and its
effects, and the other 18 (53 percent) were
reversed on grounds unrelated to the expert
testimony issue. This is quite consistent with the
findings for our database (with 45 percent of
reversals for expert testimony-related reasons and
55 percent of reversals on other grounds). The 16
cases reversed on expert testimony-related grounds
represent 20 percent of the 80 decisions in the
pool. This is somewhat higher than the finding for
our database that cases reversed on expert
testimony grounds represented only 14 percent of
the entire pool. Finally, three cases (4 percent of
the 80 cases) were remanded, two for reasons
unrelated to expert testimony and one due to the
exclusion of expert testimony. This is similar to
our finding that 5 percent of the cases in our
database were remanded.

To back into our indirect comparison, we first
noted that the 80 expert testimony-related cases
represented about 30 percent of Maguigan's
database, whereas expert testimony cases comprised
100 percent of the database used for this analysis.
Extrapolating from Maguigan's finding that where
almost one-third of the cases involve expert
testimony and related errors account for 16 percent
of the errors, one would project that where 100
percent of the cases involve expert testimony,
related errors would account for about three times
as many errors, or something on the order of 45 to
50 percent -- essentially, the conclusion of this
analysis.

Looking at the question another way, if the 40-
percent reversal rate on appeal Maguigan found
applied equally to the 80 expert testimony cases,
one would expect that about 32 of these cases
resulted in reversals. (In fact, our direct
comparison found that there were 34 reversals among
the 80 cases.) It could thus be deduced that
Maguigan found reversal due to expert testimony-
related errors in 17 cases.212 (In fact, according
to our direct comparison, there were 16 cases
reversed due to expert testimony-related errors.)
Therefore, it can be estimated that about 53
percent (or, 17 out of 32) of the reversals in
expert testimony cases were due to expert
testimony-related errors (a bit higher than, but
not that significantly different from, the 45-
percent rate found with respect to our database or
the 47-percent rate found in the direct comparison
of Maguigan's 80 cases).

Finally, it should be noted that these 17 cases
would represent 21 percent of the entire base of
Maguigan's 80 expert testimony cases. (This is very
similar to the direct comparison finding that 16
cases reversed for expert testimony-related errors
represent 20 percent of the entire pool of 80
cases.) By comparison, the 22 cases in our database
found to have been reversed due to an expert
testimony-related error represent 14 percent of the
entire base of 152 cases used in this analysis. 

Consistent with our earlier finding of the
increased chance that a battered woman defendant's
conviction will be affirmed on appeal, the data
regarding reversals indicate that, from 1991 (when
Maguigan's analysis was performed) to 1994 (the
year of this analysis), the chance of prevailing in
an appeal challenging an error related to exclusion
or limiting of expert testimony on battering and
its effects has decreased by one-third. As a
possible explanation for this result, we
hypothesized that the nature of the expert
testimony-related error may have become more subtle
over the years, as the courts have increasingly
accepted the admissibility of such testimony for at
least some purposes. However, this does not appear
to be a valid theory, in that of the 16 reversals
for exclusion of expert testimony,213 half (8) were
decided as recently as 1990 through 1994.214

2. Case dispositions on appeal: federal cases

Thirty-one federal decisions from 19 courts were
analyzed in this study. Nine cases (29 percent)
were eliminated from the pool when case disposition
on appeal was studied, because they represented
prosecutions of batterers/male defendants charged
with sexual assault (two cases),215 decisions on
pretrial motions (two cases),216 dispositions of
cases at the trial level (four cases),217 or
sentencing decisions (one case).218 

Of the remaining 22 cases, 77 percent (17) resulted
in affirmances of convictions and/or sentences.219
This is significantly higher than the 60-percent
affirmance rate for state court appeals found both
in this analysis and by Maguigan, as discussed in
the preceding section. 

Of the four cases in which reversals occurred, two
(less than 10 percent of the entire pool of 22
cases) -- which actually involved the same
defendant -- were reversed based on erroneous
exclusion of expert testimony on battering and its
effects,220 and two were reversed on other grounds,
unrelated to the expert testimony issue.221

------------------------------

IV. Suggested Followup Research Questions

There are a number of research questions beyond the
scope of this paper that were suggested by the
findings of this analysis or that became evident
during the course of doing the data gathering and
analysis. They include:

1. How does a state's position on (a) the
admissibility of and (b) the scope and relevance of
expert testimony on battering and its effects
correlate with its general self-defense standard
(i.e., objective, subjective, or hybrid)?

2. How does a state's position on the admissibility
of expert testimony on battering and its effects
correlate with its self-defense temporal proximity
standard (i.e., "imminence" versus "immediacy" of
the perceived danger to life or safety)?

3. How does a state's position on the admissibility
of expert testimony on battering and its effects
correlate with its standards for admissibility of
other expert testimony (e.g., on Rape Trauma
Syndrome or Child Sexual Abuse Syndrome)? That is,
for what purposes are various kinds of "profile"
testimony admissible? 

4. What are the ramifications of the growing use of
expert testimony on battering and its effects by
the prosecution to explain the battered
woman/complainant's recanting her previous
testimony against her batterer or other related
conduct?

5. How have state statutes, or the ways in which
they have been interpreted by the courts, changed,
restricted, or expanded the admissibility of expert
testimony on battering and its effects and/or its
scope and relevance as compared to the standards
established by state case law? How, if at all, is
the content of these statutes connected to statutes
regarding sentencing, clemency, or parole for
battered women?

6. To what extent does the availability of funds to
pay for expert witnesses appear to be an impediment
to battered women defendants?

7. What definition of "battered woman syndrome" is
being used by the courts and by expert witnesses?
How is it being limited by case law or statute? How
do these definitions or limitations impact on
particular communities, e.g., women of color,
lesbians? To the extent particular terms of art
such as "learned helplessness" are being misused,
does this have the effect of -- rather than
dispelling myths and misperceptions -- creating new
ones?

8. Are there any significant differences between
how expert testimony on battering and its effects
is being used at the trial level and at the
appellate level? How is the testimony being used
for sentencing purposes when a defendant pleads
guilty? How is it being used in clemency
proceedings? In death penalty cases?

9. What are the impacts and ramifications of
various limitations which have been imposed on the
scope of expert testimony on battering and its
effects?

10. What is the impact of having to establish that
a defendant is a battered woman before expert
testimony on battering and its effects can be
admitted?

11. What is the likely impact of Daubert v. Merrell
Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993) on
the admissibility of or scope and relevance of
expert testimony on battering and its effects?

12. What criteria are used in various jurisdictions
for qualifying experts on battering and its
effects? How if at all do these differ from those
applied to other experts?

13. What factors account for the apparent decrease
in the chances of a battered woman defendant's
prevailing in an appeal of her conviction shown by
the comparison of data from Maguigan's 1991 study
and this analysis?

14. Do Maguigan's 1991 findings regarding
dispositions on appeal of all battered women's
self-defense cases (not just expert testimony
cases) still hold true? If not, what accounts for
the differences? What, if any, differences exist
between the outcomes of traditional and
nontraditional self-defense cases? 

------------------------------

Notes

1. With the possible exception of Rhode Island. See
McMaugh v. State, 612 A.2d 725 (R.I. 1992).

2. For example, many people believe that when
battered women kill they do so when their abusers
are asleep. While it is true that some battered
women do kill their abusive partners while they are
sleeping or passed out, most battered women who
kill their partners do so during an ongoing
confrontation. Despite this fact, very few battered
women are actually acquitted at trial. The vast
majority of women who are charged -- between 75 and
80 percent -- accept a plea or are found guilty.
See Charles P. Ewing, Battered Women Who Kill:
Psychological Self-Defense as Legal Justification
(1987) and Angela Browne, When Battered Women Kill
(1987).

3. See, for example, Alan Dershowitz, The Abuse
Excuse and Other Cop-Outs, Sob Stories, and
Evasions of Responsibilities (1994). In this book
he states that "the `abuse excuse' -- the legal
tactic by which criminal defendants claim a history
of abuse as an excuse for violent retaliation -- is
quickly becoming a license to kill and maim." He
goes on to state that "... vigilantism -- whether
it takes the old-fashioned form of the lynch mob or
the new-fashioned form of the abuse victim's
killing her sleeping husband -- threatens the very
fabric of our democracy and sows the seeds of
anarchy and autocracy. The abuse excuse is
dangerous, therefore, both in its narrow
manifestation as a legal defense and in its broader
manifestation as an abrogation of societal
responsibility."

4. The primary focus of the Trend Analysis is the
use of expert testimony in criminal cases, but it
briefly discusses the use of such testimony in
civil cases and as introduced by the state when
prosecuting a batterer.

5. A recent study conducted by the National Center
for State Courts concluded that only 8.5 percent of
homicide appeals result in discharge or the order
of a new trial. Yet, according to the results of a
recent study by Professor Holly Maguigan of New
York University Law School, 40 percent of battered
women's homicide cases have resulted in reversals.
See Holly Maguigan, Battered Women and Self-
Defense: Myths and Misconceptions in Current Reform
Proposals, 140 U. Pa. L. Rev. 379 (1991) at 433
(citing Joy A. Chapper & Roger A. Hansom, National
Center for State Courts, Understanding Reversible
Error in Criminal Appeals: Final Report 38 (1990)).

6. Unlike this analysis, Professor Maguigan's study
did not focus solely on cases involving expert
testimony. Rather, her study focused on cases
involving battered women who claimed self-defense
at trial, only some (approximately 30 percent) of
whom had or tried to have an expert testify at
their trial. However, knowing what a solid and
important foundation Professor Maguigan established
in her excellent article, we chose to build on her
work. See Research Methodology section, pages 3-5
for additional information.

7. "State court" as used in this analysis includes
the 50 states plus the District of Columbia.

8. Note that for 34 state and three federal cases
included in the total database of some 270 cases,
there is not actually a reported court decision;
rather, NCDBW has trial transcripts, copies of
expert testimony given in or other "outside
information" about the use of expert testimony in
these cases. For purpose of this analysis, these
cases have been coded to reflect that expert
testimony on battering and its effects was admitted
as well as the scope of the testimony. To the
extent possible, the outcome of the case has been
ascertained and coded. 

9. It is interesting to observe that, in 1991,
Maguigan found that only 14 states had a square
holding of admissibility: see CA (People v. Aris,
215 Cal. App. 3d 1178, 264 Cal. Rptr. 167 (1989),
review denied (3/1/90)), FL (Terry v. State, 467
So.2d 761 (Fla. Dist. Ct. App. 1985), pet. for
review denied, 476 So.2d 675 (Fla. 1985)), GA
(Smith v. State, 247 Ga. 612, 277 S.E.2d 678
(1981)), IL (People v. Minnis, 118 Ill. App. 3d
345, 455 N.E.2d 209 (1983)), KS (State v. Hodges,
239 Kan. 63, 716 P.2d 563 (1986), overruled on
other grounds, State v. Stewart, 243 Kan. 639, 763
P.2d 572 (1988)), ME (State v. Anaya, 438 A.2d 892
(Me. 1981)), MN (State v. Hennum, 441 N.W.2d 793
(Minn. 1989) (en banc)), NJ (State v. Kelly, 97
N.J. 178, 478 A.2d 364 (1984)), NM (State v.
Gallegos, 104 N.M. 247, 719 P.2d 1268 (N.M. Ct.
App. 1986)), NY (stating there is actually no
square holding but citing In the Matter of Nicole
V., 71 N.Y.2d 112, 518 N.E.2d 914 (1987); People v.
Ciervo, 123 A.D.2d 393, 506 N.Y.S.2d 462 (1986);
and People v. Emick, 103 A.D. 2d 643, 481 N.Y.S.2d
552 (1984)), OH (State v. Koss, 49 Ohio St.3d 213,
551 N.E.2d 970 (1990)), SC (State v. Hill, 287 S.C.
398, 339 S.E.2d 121 (S.C. 1986)), TX (Fielder v.
State, 756 S.W.2d 309 (Tex. Crim. App. 1988)), WA
(State v. Allery, 101 Wash. 2d 591, 682 P.2d 312
(1984)). Essentially, the additional seven states
that now have square holdings had decisions
rendered in 1992, 1993 or 1994, see CT (State v.
Borrelli, 227 Conn. 153, 629 A.2d 1105 (1993);
Knock v. Knock, 244 Conn. 776, 621 A.2d 267
(1993)), HI (State v. Cababag, 9 Haw. App. 496, 850
P.2d 716 (1993), cert. denied, 74 Haw. 652, 853
P.2d 542 (1993)), MA (Commonwealth v. Rodriguez,
418 Mass. 1, 633 N.E.2d 1039 (1994)), MT (State v.
Hess, 252 Mont. 205, 828 P.2d 382 (1992); reh'g
denied (3/31/92)), OK (Bechtel v. State, 840 P.2d 1
(Okla. Crim. App. 1992) (appeal after remand)), UT
(Hazel, supra text, page 7), WI (State v. Bednarz,
179 Wis. 2d 460, 507 N.W.2d 168 (Wis. Ct. App.
1993), review denied, 513 N.W.2d 406 (Wis. 1994);
State v. Slade, 168 Wis. 2d 358, 485 N.W.2d 839
(Wis. Ct. App. 1992), review denied, 490 N.W.2d 23
(Wis. 1992)). 

10. See CT (Borrelli, supra note 3; Knock, supra
note 3), FL (State v. Hickson, 630 So.2d 172 (Fla.
1993)), GA (State v. Chapman, 258 Ga. 214, 367
S.E.2d 541 (1988); Smith, supra note 3), KS (State
v. Crawford, 253 Kan. 629, 861 P.2d 791 (1993);
State v. Clements, 244 Kan. 411, 770 P.2d 447
(1989) (appeal after remand); Hodges, supra note 3;
State v. Stewart, 243 Kan. 639, 763 P.2d 572
(1988); State v. Hundley, 236 Kan. 461, 693 P.2d
475 (1985)), MA (Rodriguez, supra note 3), MT
(Hess, supra note 3), NJ (Kelly, supra note 3), NY
(Nicole V., supra note 3), OH (Koss, supra note 3),
PA (Commonwealth v. Stonehouse, 521 Pa. 41, 555
A.2d 772 (1989)), SC (Robinson v. State, 308 S.C.
74, 417 S.E.2d 88 (S.C. 1992), reh'g denied
(6/3/92); Hill, supra note 3), WA (State v. Kelly,
102 Wash. 2d 188, 685 P.2d 564 (1984); Allery,
supra note 3; State v. Janes, 121 Wash. 2d 220, 850
P.2d 495 (1993) (en banc)).

11. CT (compare Borrelli, supra note 3, with State
v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994)),
GA (compare Chapman (1988), supra note 4, with Pugh
v. State, 260 Ga. 874, 401 S.E.2d 270 (1991)
(appeal after remand)), KS (compare Hodges, supra
note 3, and Stewart, supra note 4, with State v.
Dunn, 243 Kan. 414, 758 P.2d 718 (1988), habeas
corpus granted by Dunn v. Roberts, 768 F. Supp.
1442 (D.Kan. 1991), aff'd, 963 F.2d 308 (10th Cir.
1992); but note that Dunn was reversed by a federal
court, and see the later decision in Crawford,
supra note 4).

12. NJ (compare Kelly, supra note 3, with State v.
McClain, 248 N.J. Super. 409, 591 A.2d 652 (A.D.
1991), certification denied by 126 N.J. 341, 598
A.2d 897 (1991)), OH (compare Koss, supra note 3,
with State v. Engle, 1994 Ohio App. LEXIS 3918
(8/11/94) (slip op.), appeal allowed by 71 Ohio
St.3d 1446, 644 N.E.2d 408 (1995); State v.
Lundgren, 1994 Ohio App. LEXIS 1722 (4/22/94) (slip
op.); State v. Dowd, 1994 Ohio App. LEXIS 132
(1/19/94) (slip op.), dismissed, 69 Ohio St.3d
1476, 634 N.E.2d 1023 (1994); State v. Calvin
Redding, 1992 Ohio App. LEXIS 976 (3/5/92),
dismissed, 65 Ohio St.3d 1407, 598 N.E.2d 1161
(1992); State v. Marcia Redding, 1992 Ohio App.
LEXIS 972 (3/5/92), dismissed, 65 Ohio St.3d 1462,
602 N.E.2d 1171 (1992); State v. Coulter, 75 Ohio
App. 3d 219, 598 N.E.2d 1324 (1992), denial of
post-conviction relief aff'd, 1992 WL 193658 (Ohio
App. 8/10/92); State v. Poling, 1991 Ohio App.
LEXIS 2294 (5/17/91), dismissed, 62 Ohio St.3d
1438, 579 N.E.2d 212 (1991); State v. Pargeon, 64
Ohio App. 3d 679, 582 N.E.2d 665 (1991), reh'g
denied, 62 Ohio St.3d 1466, 580 N.E.2d 787 (1991)  
--  but see Daws, supra text, page 2).

13. WA (compare Kelly, supra note 4, and Allery,
supra note 3, with State v. Ciskie, 110 Wash. 2d
263, 751 P.2d 1165 (1988), and State v. Riker, 123
Wash. 2d 351, 869 P.2d 43 (1994), and State v.
Hanson, 58 Wash. App. 504, 793 P.2d 1001 (1990);
recon. denied (8/31/90), review denied, 115 Wash.
2d 1033, 803 P.2d 325 (1990); but see also later
decision in Janes, supra note 4). 

14. CA (People v. Romero, 13 Cal. Rptr. 2d 332
(Cal. App. 2 Dist. 1992), rev'd on other grounds,
35 Cal. Rptr. 2d 270, 883 P.2d 388 (1994); People
v. Day, 2 Cal. App. 4th 405, 2 Cal. Rptr. 916
(1992); Aris, supra note 3), FL (Rogers v. State,
616 So.2d 1098 (Fla. Dist. Ct. App. 1993), reh'g
denied (5/4/93); approved in part, quashed in part,
630 So.2d 177 (Fla. 1993), Terry, supra note 3), GA
(Motes v. State, 192 Ga. App. 302, 384 S.E.2d 463
(1989)), HI (Cababag, supra note 3), IL (People v.
Fleming, 155 Ill. App.3d 29, 507 N.E.2d 954 (1987),
leave to appeal denied, 116 Ill.2d 566, 515 N.E.2d
116 (1987), rev'd, U.S. ex rel. Fleming v. Huch,
924 F.2d 679 (7th Cir. 1991); People v. Server, 148
Ill. App. 3d 888, 499 N.E.2d 1019 (4 Dist. 1986),
appeal denied, 114 Ill.2d 555, 508 N.E.2d 734
(1987), cert. denied, 484 U.S. 842 (1987), habeas
corpus denied by Server v. Mizell, 902 F.2d 611
(7th Cir. 1990); Minnis, supra note 3), KS (State
v. Cramer, 17 Kan. App. 2d 623, 841 P.2d 1111
(1992), review denied (2/3/93)), NJ (State v.
McGuigen, Docket No. A-1557-85T4, Sup. Ct., App.
Div. (N.J. 2/5/88); State v. Frost, 242 N.J. Super.
601, 577 A.2d 1282 (A.D. 1990), cert. denied, 127
N.J. 321, 604 A.2d 596 (1990); State v. Myers, 239
N.J. Super. 158, 570 A.2d 1260 (1990), cert.
denied, 127 N.J. 323, 604 A.2d 598 (1990)), NM
(Gallegos, supra note 3; State v. Branchal, 101
N.M. 498, 684 P.2d 1163 (N.M. Ct. App. 1984)), OH
(Daws, supra text, page 2; State v. Spinks, 1990 WL
56554 (Ohio App. 5/3/90)), OK (Bechtel, supra note
3), PA (Commonwealth v. Miller, 430 Pa. Super. 297,
634 A.2d 614 (1993), appeal denied, 646 A.2d 1177
(Pa. 1994); Commonwealth v. Kacsmar, 421 Pa. Super.
64, 617 A.2d 725 (1992), appeal denied, 536 Pa.
640, 639 A.2d 25 (1994)), SC (Doe v. Greenville
Hospital System, ___ S.C. App. ___, 448 S.E.2d 564
(1994), reh'g denied (10/6/94), cert. granted
(3/10/95); State v. Wilkins, 305 S.C. 272, 407
S.E.2d 670 (S.C. App. 1991); reh'g denied
(8/29/91); cert. denied (11/21/91)), TX (Fielder,
supra note 3), WI (Bednarz, supra note 3; Slade,
supra note 3).

15. IL (compare Fleming, supra note 8, with People
v. Jackson, 180 Ill. App. 3d 78, 535 N.W.2d 1086
(1989), appeal denied, 126 Ill. 2d 563, 541 N.E.2d
1111 (1989)), NJ (compare Frost, supra note 8, and
Myers, supra note 8, with McClain, supra note 6),
TX (compare Fielder, supra note 3, with Ortiz v.
State, 834 S.W.2d 343 (Tex. Crim. App. 1992)).

16. GA (compare Motes, supra note 8, with Pugh,
supra note 5).

17. MN (State v. Mick, Order and Memorandum on
State's Motion in Limine, File No. K-84-497 (Dist.
Ct., 8th Jud. Ct., Kandiyohi Co., MN, 7/30/84)), UT
(Hazel, see supra text, page 7). Also note that in
three states which have square holdings by a higher
court as well, there are trial court decisions with
a square holding -- FL (State v. Stiles, Case No.
92-16173, Cir. Ct., 13th Jud. Cir., Hillsborough
Co., FL (June 1993) (unpub. op.)), NJ (Cusseaux v.
Pickett, 279 N.J. Super. 335, 652 A.2d 789 (1994))
and NY (People v. Torres, 128 Misc. 2d 129, 488
N.Y.S.2d 358 (N.Y. Crim. Ct. 1985).

18. MN (compare Mick, supra note 11, with Hennum,
supra note 3, and State v. Borchardt, 478 N.W.2d
757 (Minn. 1991)).

19. See, e.g., GA (Pugh, supra note 5), OH (Poling,
supra note 6), WA (Ciskie, supra note 7).

20. See, e.g., CT (Freeney, supra note 5) and WA
(Hanson, supra note 7).

21. See, e.g., IL (Jackson, supra note 9) and TX
(Ortiz, supra note 9).

22. See, e.g., Poling ("sleeping man" case), supra
note 6; Pargeon (expert testimony offered by the
prosecution), supra note 6; C. Redding, supra note
6; M. Redding, supra note 6; Coulter (crime against
third party), supra note 6; Dowd (expert testimony
offered by the prosecution), supra note 6; Lundgren
(duress/crime against third party case), supra note
6; Engle (duress/infanticide case), supra note 6.

23. See Pargeon, supra note 6, and Lundgren supra
note 6.

24. AL (Ex parte Haney, 603 So.2d 412 (Ala. 1992),
reh'g denied (8/28/92), cert. denied, 113 S.Ct.
1297 (1993)), AK (Brandon v. State, 839 P.2d 400
(Alaska App. 1992) (appeal after remand), reh'g
denied (10/29/92)), LA (Laughlin v. Breaux, 515
So.2d 480 (La. App. 1 Cir. 1987)), MO (State v.
Landrum, Cause No. 576441, Div. 17, Team A, Cir.
Ct., St. Louis Co. (MO 8/12/88) (unpub. order of
8/12/88), NE (State v. Doremus, 2 Neb. App. 784,
514 N.W.2d 649 (1994)), NC (State v. Clark, 324
N.C. 146, 377 S.E.2d 54 (1989)), RI (State v.
Ordway, 619 A.2d 819 (R.I. 1992)). Note that in six
additional states (already assigned the most
inclusive code, "AH") where there is a square
holding of admissibility, there are also decisions
that recognize admissibility of the testimony
without discussing it --  GA (Ledford v. State, 254
Ga. 656, 333 S.E.2d 576 (1985)), MN (State v.
Merrill, 1991 Minn. App. LEXIS 790 (8/13/91)
(unpub. op.)), NJ (State v. J.Q., 130 N.J. 554, 617
A.2d 1196 (1993)), NM (State v. Vigil, 110 N.M.
254, 794 P.2d 728 (N.M. 1990)), NY (People v.
Taylor/People v. Banks, 75 N.Y.2d 277, 552 N.E.2d
131 (1990)), OH (State v. Roquemore, 85 Ohio App.
3d 448, 620 N.E.2d 110 (1993); State v. Manning, 74
Ohio App. 3d 19, 598 N.E.2d 25 (1991), reh'g
denied, 62 Ohio St.3d 1466, 580 N.E.2d 786 (1991),
cert. denied, 112 S.Ct. 1961 (1992); State v.
Seymour, 1993 Ohio App. LEXIS 5387 (1993) (slip
op.), dismissed, 69 Ohio St.3d 1436, 632 N.E.2d 519
(1994), recon. denied, 70 Ohio St.3d 1437, 638
N.E.2d 1041 (1994)), PA (Commonwealth v. Tyson, 535
Pa. 391, 635 A.2d 623 (1993)). 

25. ID (State v. Griffiths, 101 Idaho 163, 610 P.2d
522 (1980), overruled on other grounds, State v.
LePage, 102 Idaho 387, 630 P.2d 674 (1981), cert.
denied, 454 U.S. 1057 (1981)), KY (Commonwealth v.
Craig, 783 S.W.2d 387 (Ky. 1990), overruled by Dyer
v. Com., 816 S.W.2d 647 (Ky. 1992); Commonwealth v.
Rose, 725 S.W.2d 588 (Ky. 1987), cert. denied, 484
U.S. 838 (1987), overruled by Com. v. Craig, 783
S.W.2d 387 (1990)), MI (People v. Wilson, 194 Mich.
App. 599, 487 N.W.2d 822 (1992)), NH (State v.
Baker, 120 N.H. 773, 424 A.2d 171 (1980)), SD
(State v. Burtzlaff, 493 N.W.2d 1 (S.D. 1992)), VT
(State v. Verrinder, 161 Vt. 250, 637 A.2d 1382
(1993)). Note that in nine additional states
already assigned the more inclusive codes of "AH"
or "AR," there are also decisions that are coded as
"AL" --  AK (Haakanson v. State, 760 P.2d 1030
(Alaska App. 1988)), CT (Freeney, supra note 5,
State v. Battista, 31 Conn. App. 497, 626 A.2d 769
(1993), cert. denied, 227 Conn. 907, 632 A.2d 696
(1993)), FL (State v. Rhone, 566 So.2d 1367 (Fla.
Dist. Ct. App. 1990) (There is some question
whether this code applies to this case.), GA (Pugh,
supra note 5, Thompson v. State, 203 Ga. App. 339,
416 S.E.2d 755 (1992), cert. denied (4/24/92)), KS
(State v. Meyer, No. 59,213, Kan. Ct. App.
(12/4/86) (unpub. slip op.)), MN (Hennum, supra
note 3; State v. Krage, No. K3-91-155, Dist. Ct.
(3rd Jud. Dist.), MN (unpub. Order and Memorandum
dated 7/18/91)), TX (Ortiz, supra note 9), WA
(Hanson, supra note 7; Ciskie, supra note 7), WI
(State v. Landis, 138 Wis. 2d 527, 406 N.W.2d 171
(Wis. Ct. App. 1987), review denied, 139 Wis. 2d
860, 415 N.W.2d 162 (1987).

26. AR (Thompson v. State, 306 Ark. 193, 813 S.W.2d
249 (1991)), DC (Ibn-Tamas v. U.S., 407 A.2d 626
(D.C. App. 1979) and Ibn-Tamas v. U.S., 455 A.2d
893 (D.C. App. 1983) (appeal after remand)), IN
(Fultz v. State, 439 N.E. 2d 659 (Ind. App. 3rd.
1982)), ME (Anaya (1981), supra note 3), MS (Lentz
v. State, 604 So.2d 243 (Miss. 1992)), OR (State v.
Milbradt, 305 Or. 621, 756 P.2d 620 (1988); State
v. Moore, 72 Or. App. 454, 695 P.2d 985 (1985),
review denied, 299 Or. 154, 700 P.2d 251 (1985).
Also note that for eight other states that have a
more inclusive holding coded "AH," "AR," or "AL,"
there are also decisions admitting expert testimony
on battering and its effects on a conditional basis
--  AL (Ex Parte Hill, 507 So.2d 558 (Ala. 1987)),
FL (Hawthorne v. State, 470 So.2d 770 (Fla. Dist.
Ct. App. 1985) (appeal after remand)), KY (Dyer v.
Commonwealth, 816 S.W.2d 647 (Ky. 1991); Rose,
supra note 19), LA (State v. Burton, 464 So.2d 421
(La. App. 1 Cir. 1985); writ denied, 468 So.2d 570
(La. 1985)), MA (Commonwealth v. Grimshaw, 412
Mass. 505, 590 N.E.2d 681 (1992); Commonwealth v.
Lazarovich, 410 Mass. 466, 574 N.E.2d 340 (1991);
Commonwealth v. Moore, 25 Mass. App. Ct. 63, 514
N.E.2d 1342 (1987)), MN (Borchardt, supra note 12),
MO (State v. Williams, 787 S.W.2d 308 (Mo. App.
1990)), NH (State v. Briand, 130 N.H. 650, 547 A.2d
235 (1988)).

27. AZ (State v. Denny, 27 Ariz. App. 354, 555 P.2d
111 (1976); reh'g denied (8/17/76); pet. for rev.
denied (10/13/76)), CO (People v. Yaklich, 833 P.2d
758 (Colo. App. 1991), reh'g denied (1/9/92), cert.
denied, (8/10/92); People v. Hare, 782 P.2d 831
(Colo. App. 1989); aff'd, 800 P.2d 1317 (Colo.
1990); Morrison v. Bradley, 622 P.2d 81 (Colo. App.
1980), rev'd on other grounds, 655 P.2d 385 (Colo.
1982)), IA (State v. Nunn, 356 N.W.2d 601 (Iowa
App. 1984)), MD (Banks v. State, 92 Md. App. 422,
608 A.2d 1249 (1992)), NV (Larson v. State, 104
Nev. Adv. 113, 766 P.2d 261 (1988)), ND (State v.
Leidholm, 334 N.W.2d 811 (N.D. 1983)), TN (State v.
Zimmerman, 823 S.W.2d 220 (Tenn. Cr. App. 1991);
State v. Furlough, 797 S.W.2d 631 (Tenn. Crim. App.
1990); State v. Devita, 1989 Tenn. Crim. App. LEXIS
292 (4/12/89); State v. Aucoin, 756 S.W.2d 705
(Tenn. Crim. App. 1988), cert. denied, 489 U.S.
1084 (1989), reh'g denied, 490 U.S. 1077 (1989);
State v. Leaphart, 673 S.W.2d 870 (Tenn. Crim. App.
1983)), VA (Wilmoth v. Commonwealth, 10 Va. App.
169, 390 S.E.2d 514 (1990); Pancoast v.
Commonwealth, 2 Va. App. 28, 340 S.E.2d 833
(1986)), WV (In Interest of Betty J.W., 179 W. Va.
605, 371 S.E.2d 326 (1988); State v. Steele, 178 W.
Va. 330, 359 S.E.2d 558 (1987); State v. Duell, 175
W. Va. 233, 332 S.E.2d 246 (1985); State v.
Lambert, 173 W. Va. 60, 312 S.E.2d 31 (1984)), WY
(Frenzel v. State, 849 P.2d 741 (Wyo. 1993);
Griffin v. State, 749 P.2d 246 (Wyo. 1988) (There
is some question whether this code applies to this
case.)). Note that for 28 additional states already
coded with a more inclusive code of "AH," "AR,"
"AL," or "AC," there are also intermediate or high
court decisions discussing the contents but not the
standards for admission of expert testimony on
battering and its effects --  AL (Haney, supra note
18), FL (Jackson v. State, 648 So.2d 85 (Fla.
1994)), GA (Strong v. State, 251 Ga. 2d 540, 307
S.E.2d 912 (1983); Norris v. State, 250 Ga. 38, 295
S.E.2d 321 (1982)), ID (Curtis v. Firth, 123 Idaho
598, 850 P.2d 749 (1993); Curtis v. Firth, 125
Idaho 229, 869 P.2d 229 (1994) (appeal after
remand)), IL (People v. Sheila Smith, 241 Ill. App.
3d 446, 608 N.E.2d 1259 (1993); People v. Novy, 232
Ill. App. 3d 631, 597 N.E.2d 273 (1992); People v.
Gindorf, 159 Ill. App. 3d 647, 512 N.E.2d 770
(1987), appeal denied, 117 Ill.2d 548, 517 N.E.2d
1090 (1987), cert. denied, 486 U.S. 1011 1988)), IN
(Dausch v. State, 616 N.E.2d 13 (Ind. 1993); Allen
v. State, 566 N.E.2d 1047 (Ind. App. 1991)), KY
(Ford v. Commonwealth, 720 S.W.2d 735 (Ky. Ct. App.
1986)), LA (State v. Moore, 568 So.2d 612 (La. App.
4 Cir. 1990)), ME (State v. Anaya, 456 A.2d 1255
(Me. 1983) (appeal after remand)), MA (Commonwealth
v. Grimshaw, 31 Mass. App. Ct. 917, 576 N.E.2d 1374
(1991), aff'd, 412 Mass. 505, 590 N.E.2d 681
(1992)), MN (State v. Loch, 1994 Minn. App. LEXIS
91 (1/25/94)), MO (Hunziger v. Noellsch, Case No.
CV591-5CC, Circuit Ct., Holt Co., MO (3/2/94)
(unpub. op.)), MT (State v. Redcrow, 242 Mont. 254,
790 P.2d 449 (1990); In Re Marriage of Houtchens,
760 P.2d 71 (Mont. 1988)), NE (In re Interest of
C.P., 235 Neb. 276, 455 N.W.2d 138 (1990); State v.
Jackson, 231 Neb. 207, 435 N.W.2d 893 (1989)), NH
(Briand, supra note 20), NJ (State v. Walker, 199
N.J. Super. 354, 489 A.2d 728 (1985)), NM (State v.
Swavola, 114 N.M. 472, 840 P.2d 1238 (N.M. Ct. App.
1992), cert. denied, 114 N.M. 501, 841 P.2d 549
(N.M. 1992)), NY (People v. Barrett, 189 A.D.2d
879, 592 N.Y.S.2d 766 (1993); People v. Rollock,
177 A.D.2d 722, 577 N.Y.S.2d 90 (2nd Dept. 1991),
appeal denied, 79 N.Y.2d 923, 590 N.E.2d 1211
(1992); In the Matter of Glenn G., 154 Misc. 2d
677, 587 N.Y.S.2d 464 (Fam. Ct. Kings Co. 1992);
People v. Anderson, N.Y. Sup. Ct. Bronx Co.
N.Y.L.J. 3/14/91 at p.25; People v. Fratt, 146
Misc. 2d 77, 548 N.Y.S.2d 978 (N.Y.S.Ct. 1989);
Emick, supra note 3; Ciervo, supra note 3), NC
(State v. Torres, 99 N.C. App. 364, 393 S.E.2d 535
(1990), rev'd, 330 N.C. 517, 412 S.E.2d 20 (1992);
State v. Norman, 324 N.C. 253, 378 S.E.2d 8 (1989);
State v. Heidmous, 75 N.C. App. 488, 331 S.E.2d 200
(1985)), OH (State v. Higgs, 1992 Ohio App. LEXIS
5212 (10/7/92); State v. Rice, 1991 Ohio App. LEXIS
2731 (6/6/91), dismissed, 62 Ohio St.3d 1453, 579
N.E.2d 1392 (1991); Scheibert v. Hatton, 1991 Ohio
App. LEXIS 4016 (8/21/91); State v. Lampkin, 1990
Ohio App. LEXIS 4315 (10/3/90), cause dismissed, 60
Ohio St.3d 706, 573 N.E.2d 674 (1991)), OK
(McDonald v. State, 674 P.2d 1154 (Okl. Crim. App.
1984)), OR (State v. Bockorny, 124 Or. App. 585,
863 P.2d 1296 (1993), review denied, 318 Or. 351,
870 P.2d 220 (1994)), PA (Commonwealth v. Dillon,
528 Pa. 417, 598 A.2d 963 (1991)), RI (McMaugh,
supra preface endnote 1), TX (Hayward v. State,
1993 Tex. App. LEXIS 945 (4/1/93); Pierini v.
State, 804 S.W.2d 258 (Tex. Crim. App. 1991)), VT
(Blair v. Blair, 154 Vt. 201, 575 A.2d 191 (1990)),
WA (State v. Hutcheson, 62 Wash. App. 282, 813 P.2d
1283 (1991), recon. denied (9/30/91), review
denied, 118 Wash. 2d 1020, 827 P.2d 1012 (1992);
State v. Walker, 40 Wash. App. 658, 700 P.2d 1168
(1985), recon. denied (6/21/85), review denied, 104
Wash. 2d 1012 (1985); State v. Bowerman, 115 Wash.
2d 794, 802 P.2d 116 (1990); recon. denied
(2/21/91), WI (State v. Felton, 110 Wis. 2d 485,
329 N.W.2d 161 (Wis. 1983)).

28. DE (State v. McBride, Criminal Action Nos. IK-
80-05-0058, IK-80-05-0059, IK-80-05-0027, Super.
Ct. Kent Co. (DE 1982), testimony of Susan
Steinmetz). Note that for 21 other states already
coded with a more inclusive admissibility code, the
database includes information on 33 additional
cases in which expert testimony on battering and
its effects was actually admitted at the trial
level --  AK (State v. Pabst, Case No.
3LN-87-764CR, Super. Ct., 3rd Jud. Dist. at Kenai
(AK 1988), testimony of Frances Purdy; State v.
Charliaga, Kodiak Super. Ct. (AK 10/91),
information in NCDBW files), FL (State v.
Soubielle, Case No. 87-508-CFA, Cir. Ct., Crim.
Div., 18th Jud. Ct., Seminole Co. (FL 1988),
testimony of Lois Veronen), GA (State v. Chapman,
trial transcript from unidentified case no. (GA
1987), voir dire and testimony of Cheryl
Christian), HI (State v. Miller, discussed by
Lenore E. Walker in Terrifying Love (1989) pp. 77-
91), IN (State v. Davidson, Lower Case No. SCR
86-70, Marshall Super. Ct. No. 1 (IN 1991),
testimony of Gail Beaton), IA (State v. Jones,
Crim. No. D7X107208, 1st Jud. Dist., Black Hawk Co.
(IA 1989), testimony of Angela Stukenberg), KS
(State v. Dunn, No. 85-CR-59T, Dist. Ct., Shawnee
Co., 5th Dist. (KS 1992), testimony of Marilyn
Hutchinson), KY (Commonwealth v. Jones, Indictment
No. 92-CR-00006, Rockcastle Circ. Ct. (KY
11/10/93), unpub. order dismissing indictment), ME
(State v. Murchison, Docket No. 84-252, AD-84-23,
Super Ct. Crim. Action (ME 1984), testimony of
Lawrence Salveson), MD (State v. Evelyn Smith,
Crim. Trial 91-2547X, Cir. Ct., Prince George's Co.
(MD 1992), testimony of Neil Howard Blumberg;
Kaliher v. Kaliher, Civil No. 24796, Cir. Ct.,
Montgomery Co. (MD 1990), testimony of Ellen
McDaniel), MA (Commonwealth v. Scott, Case No.
072980, Super. Ct. (MA 1989), testimony and voir
dire of Charles Ewing), MI (People v. Matthews, No.
88-7676, Recorder's Ct., Detroit (MI 9/88); People
v. Jeanette Smith, trial transcript from
unidentified case no. (MI 1979), testimony of
Camela S. Serum), MN (State v. Tisland,
unidentified case no. (MN 1984), outline of the
testimony of Lynn Powers; State v. Vizenor, File
No. 74437-1, 4th Jud. Dist., Hennepin Co. (MN
1980), testimony of Phillip Oxman), NH (State v.
Masters, No. 85-S-220, Super. Ct., Concord (NH
1987), voir dire and testimony of Sheila Stanley),
NY (People v. Sarah Smith, Indictment No. 04824-89,
Sup. Ct., Bronx Co. (NY 1991), testimony of Lois
Veronen; People v. Brundidge, unidentified case
no., Sup. Ct., Monroe Co. (NY 1988), testimony of
Charles Ewing; People v. Pizarro, Indictment No.
6068-86, Sup. Ct. (NY 1988), testimony of Julie
Blackman; People v. Brown, Indictment No. 3175/79,
Sup. Ct., Kings Co. (NY 1981), testimony of Julie
Blackman), OH (State v. Flowers, Case No. 89 CR
463, App. No. 90 T 4452, Ct. of Common Pleas,
Trumbull Co. (OH 6/1/90), testimony of Stan
Palumbo), PA (Commonwealth v. Forsythe,
unidentified case no., Ct. of Common Pleas,
Westmoreland Co. (PA 11/18/86), testimony of
Herbert Levit; Heck v. Heck, No. 168, February
1986, Ct. Common Pleas, Berks Co. (PA 11/23/87),
testimony of Julie Blackman; Commonwealth v.
Beadriz Singh, Nos. 77-78, June Term 1986, Ct.
Common Pleas, Philadelphia Co. (PA 12/9/87), voir
dire and testimony of Julie Blackman; Commonwealth
v. Gatewood, No. 85-12-1086-1088, Ct. of Common
Pleas, Philadelphia Co. (PA 12/16/86), testimony of
Julie Blackman), TX (State v. King, Trial Ct. Cause
No. 461,560, 351st Dist. Ct., Harris Co. (TX 1987),
testimony of Toby Meyers; In the Interest of....,
unidentified case no., 321st Jud. Dist. Ct. Sitting
as a Juv. Ct., Smith Co., Tyler (TX 2/11/92),
testimony of Robert Geffner), VA (Commonwealth v.
Plantz, No. CR90-1176, Cir. Ct. Virginia Beach (VA
1990), testimony of Alice Twining; Commonwealth v.
Credle, Cir. Ct., Newport News (VA 1990), testimony
of Alice Twining), WA (State v. Alaniz, Skagit Co.
Super. Ct. 88-1-00047-5 (WA 1988), based on case
summary by Robert Jones, defense counsel), WV
(State v. McClanahan, unidentified case no., Cir.
Ct., Pendleton Co. (WV 11/1/93)). It will be
recalled that the foregoing listing of unreported
trial decisions is not exhaustive; rather, it
represents all of the unreported cases that are on
file with NCDBW.

29. OH (Pargeon, supra note 6), WY (Braley v.
State, 741 P.2d 1061 (Wyo. 1987)).

30. AL (Neelley v. State, 624 So.2d 494 (Ala. Crim.
App. 1993)), AR (State v. Green, unidentified case
no. Garland Co. Cir. Ct. (8/94) (information in
NCDBW files), GA (Clenney v. State, 256 Ga. 116,
344 S.E.2d 216 (1986); Pruitt v. State, 164 Ga.
App. 247, 296 S.E.2d 795 (1982); Mullis v. State,
248 Ga. 338, 282 S.E.2d 334 (1981)), IL (Jackson,
supra note 9; People v. White, 90 Ill. App. 3d
1067, 414 N.E.2d 196 (1980)), KS (Dunn (88), supra
note 5), KY (Foster v. Commonwealth, 827 S.W.2d 670
(Ky. 1992), cert. denied, 113 S.Ct. 337 (1992);
Brandenburg v. Commonwealth, No. 86-CA-1834-MR, Ky.
Ct. App. (8/5/88) (unpub. op.)), LA (State v.
Clayton, 570 So.2d 519 (La. App. 5 Cir. 1990);
State v. Necaise, 466 So.2d 660 (La. App. 5th Cir.
1985); State v. Edwards, 420 So.2d 663 (La. 1982)),
MD (Boyd v. State, 321 Md. 69, 581 A.2d 1 (1990)),
MI (People v. Moseler, 202 Mich. App. 296, 508
N.W.2d 192 (1993), appeal denied, 519 N.W.2d 899
(Mich. 1994)), MO (State v. Anderson, 785 S.W.2d
596 (Mo. App. 1990), denial of habeas corpus aff'd
by Anderson v. Goeke, 44 F.3d 675 (8th Cir. 1995),
reh'g denied (2/15/95); State v. Clay, 779 S.W.2d
673 (Mo. App. 1989); State v. Martin, 666 S.W.2d
895 (Mo. App. 1984)), MT (State v. Dannels, 226
Mont. 80, 734 P.2d 188 (1987)), NJ (State v.
McClain, supra note 6), NY (People v. Powell, 83
A.D.2d 719, 442 N.Y.S.2d 645 (1981)), OH (Engle,
supra note 6; Lundgren, supra note 6; Dowd, supra
note 6; Coulter, supra note 6; C. Redding, supra
note 6; M. Redding, supra note 6; Poling, supra
note 6;), TN (State v. Pendergrast, 1992 Tenn.
Crim. App. LEXIS 766(10/8/92)), WA (Riker, supra
note 6), WI (State v. Balke, 173 Wis. 2d 306, 498
N.W.2d 913 (Wis. Ct. App. 1992), review denied, 501
N.W.2d 458 (Wis. 1993)).

31. WY (Jahnke v. State, 682 P.2d 991 (Wyo. 1984);
Buhrle v. State, 627 P.2d 1374 (Wyo. 1981)).

32. Expert testimony was conditionally excluded in
the Buhrle decision in 1981, when the scientific
acceptance of the "battered woman syndrome" was far
less widespread than in later years, and the issue
has not been squarely raised since. However,
subsequent decisions may be read to indicate such
testimony could be admitted in a self-defense case,
where the defendant has established she is a
battered woman, and that acceptance of "battered
woman syndrome" in the scientific community can now
be demonstrated to the court's satisfaction. But
see Section III.A.3 infra for more information on
Wyoming's 1993 statute permitting introduction of
expert testimony on battering and its effects.

33. Indeed, the Ohio statute on its face (Ohio Rev.
Code Ann. section 2945.392 (Anderson 1990)) also provides
that expert testimony on battered woman syndrome
and that the defendant "suffered from that
syndrome" may be introduced "to establish the
requisite impairment of the defendant's reason, at
the time of the commission of the offense" where
the defendant has entered a plea of not guilty by
reason of insanity.

34. Cal. Evid. Code section 1107 (West 1993) (see Section
2 of Stats.1991, c. 812 (A.B.785)), Mass. Gen. Laws
Ann. ch.233, section 23E (West 1994), S.C. Code Ann. section 17-
23-170(A) (Law. Co-op. 1995).

35. Cal. Evid. Code section 1107, La. Code Evid. Ann. art.
404(A)(2) (West 1989), Mass. Gen. Laws Ann. ch.
233, section 23E, Mo. Ann. Stat. (Crimes & Punishment)
section 563.033 (Vernon 1991), Nev. Rev. Stat. section 48.061
(1993), Okla. Stat. Ann. tit. 22, section 40.7 (West
1992), S.C. Code Ann. section 17-23-170(A), Tex. Penal
Code section 19.06 (West 1992). 

36. Ga. Code Ann. section 16-3-21(d) (Michie 1994), Md.
Cts. & Jud. Proc. Code Ann. section 10-916 (1991), Ohio
Rev. Code Ann. section 2901.06(B) (Anderson 1990), Wyo.
Stat. (Crimes and Offenses) section 6-1-203 (1993).

37. Cal. Evid. Code section 1107 (this statute also refers
to the admissibility of expert testimony regarding
the "physical, emotional, or mental effects upon
the beliefs, perceptions, or behavior of victims of
domestic violence"),Ohio Rev. Code Ann. section 2901.06,
Wyo. Stat. section 6-1-203.

38. Md. Cts. & Jud. Proc. Code Ann. section 10-916, Mo.
Ann. Stat. (Crimes and Punishment) section 563.033, S.C.
Code Ann. section 17-23-170.

39. A Missouri intermediate appeals court held that
application of the statute is not dependent on the
parties' marital status, notwithstanding its use of
the term "battered spouse syndrome." See Williams,
supra note 20.

40. La. Code Evid. Ann. art. 404(A)(2), Okla. Stat.
Ann. tit. 22, section 40.7, Nev. Rev. Stat. section 48.061.

41. Ga. Code Ann. section 16-3-21(d), Tex. Penal Code
section 19.06(b)(1).

42. Mass. Gen. Laws Ann. ch. 233, section 23E.

43. 9th Cir. (U.S. v. Archer, 1993 App. LEXIS 24875
(9th Cir. 9/23/93); U.S. v. Homick, 964 F.2d 899
(9th Cir.1992)), 7th Cir. (U.S. v. Mark Thomas, 11
F.3d 1392 (7th Cir. 1993)), 6th Cir. (Kathy Thomas
v. Arn, 728 F.2d 813 (6th Cir. 1984), cert.
granted, 470 U.S. 1027 (1985) and aff'd, 474 U.S.
140 (1985), reh'g denied, 474 U.S. 1111 (1986)),
S.D.N.Y. (U.S. v. Taylor, 820 F. Supp. 124
(S.D.N.Y. 1993)), S.D.Ohio (Tourlakis v. Morris,
738 F. Supp. 1128 (S.D.Ohio 1990)).

44. 7th Cir. (Thomas, supra note 37).

45. 9th Cir. (Archer, supra note 37; Homick, supra
note 37), 6th Cir. (Thomas v. Arn, supra note 37),
S.D.Ohio (Tourlakis, supra note 37), S.D.N.Y.
(Taylor, supra note 37).

46. Compare 9th Cir. (Archer, supra note 37;
Homick, supra note 37) with 9th Cir. (U.S. v.
Carolyn Johnson, 956 F.2d 894 (9th Cir. 1992),
opinion supplemented on denial of reh'g by U.S. v.
Emilio, 969 F.2d 849 (9th Cir. 1992) and on remand
to U.S. v. Longoria, 1992 WL 252122 (D.Or.
9/25/92), aff'd by U.S. v. Baracco, 15 F.3d 1090
(9th Cir. 1993); U.S. v. Winters, 729 F.2d 602 (9th
Cir. 1984); U.S. v. Sebresos, 1992 U.S. App. LEXIS
17757 (9th Cir. 7/22/92) (unpub. disposition); U.S.
v. Gable, 1994 U.S. App. LEXIS 22969 (9th Cir.
6/15/94) (unpub. disposition), cert. denied, 115
S.Ct. 376 (1994) and Funderburk v. U.S., 115 S.Ct.
376 (1994); U.S. v. Russell, 1993 U.S. App. LEXIS
6952 (9th Cir. 3/24/93) (unpub. disposition); U.S.
v. July, 1992 U.S. App. LEXIS 6394 (9th Cir.
3/25/92) (unpub. disposition) and compare 6th Cir.
(Thomas v. Arn, supra note 37, with Ware, supra
text, page 2); Meeks v. Bergen, 749 F.2d 322 (6th
Cir. 1984)).

47. 10th Cir. (Dunn v. Roberts, 963 F. 2d 308 (10th
Cir. 1992)), 9th Cir. (Johnson, supra note 40;
Winters, supra note 40), 8th Cir. (Arcoren, 929
F.2d 1235 (8th Cir. 1991), cert. denied, 502 U.S.
913 (1991)).

48. D.Kan. (Dunn v. Roberts, 768 F. Supp. 1442
(D.Kan. 1991), aff'd, 963 F.2d 308 (10th Cir.
1992)), S.D.Fla. (U.S. v. Ellis, Memorandum Order,
No. 87-5970-CR-Aronovitz (U.S. Dist. Ct., S.D.Fla.,
2/15/88)).

49. 6th Cir. (Ware, supra text, page 2). See also
8th Cir. (U.S. v. Whitetail, 956 F.2d 857 (8th Cir.
1992)). 

50. N.D.Ill. (U.S. v. Bell, 1994 U.S. Dist. LEXIS
8520 (N.D.Ill. 4/28/94)). See also 9th Cir.
(Sebresos, supra note 40).

51. E.D.Pa. (Fennell v. Goolsby, 630 F. Supp. 451
(E.D.Pa. 1985)). See also N.D.Ill. (U.S. v.
Gregory, 1988 U.S. Dist. LEXIS 10060 (N.D.Ill.
9/2/88)).

52. 11th Cir. (U.S. v. Sixty Acres in Etowah
County, 930 F.2d 857 (11th Cir. 1991), reh'g
denied, 952 F.2d 413 (11th Cir. 1991), reh'g
denied, 952 F.2d 413 (11th Cir. 1991)), 5th Cir.
(U.S. v. Karen Gordon, 812 F.2d 965 (5th Cir.
1987), cert. denied, Woodcock v. U.S., 482 U.S. 908
(1987) and Gordon v. U.S., 483 U.S. 1009 (1987)),
3rd Cir. (U.S. v. Santos, 932 F.2d 244 (3rd Cir.
1991), cert. denied, 502 U.S. 985 (1991)), E.D.N.Y.
(U.S. v. Gaviria, 804 F. Supp. 476 (E.D.N.Y.
1992)), N.D.Ala. (U.S. v. Sixty Acres, 736 F. Supp.
1579 (N.D.Ala. 1990), rev'd, 930 F.2d 857 (11th
Cir. 1991) reh'g denied, 952 F.2d 413 (11th Cir.
1991)), W.D.La. (U.S. v. Karen Gordon, 638 F. Supp.
1120 (W.D.La. 1986), aff'd, 812 F.2d 956 (5th Cir.
1987), cert. denied, Woodcock v. U.S., 482 U.S. 908
(1987) and Gordon v. U.S., 483 U.S. 1009 (1987)),
U.S. Tax. Ct. (Toner v. Commissioner of Internal
Revenue, 1990 WL 154691 (U.S. Tax Ct. 10/17/90),
aff'd sub. nom., Doe v. Commissioner of Internal
Revenue, No. 91-1678 (3rd Cir. 2/14/92), unpub.
Judgment Order). See also 10th Cir. (Lumpkin v.
Ray, 977 F.2d 508 (10th Cir. 1992)), 9th Cir.
(Gable, supra note 40; Russell, supra note 40;
July, supra note 40; Sebresos, supra note 40), 6th
Cir. (Meeks, supra note 40).

53. OH (Redding, C. supra note 6; Redding, M.,
supra note 6), TN (Furlough, supra note 21), VT
(Verrinder, supra note 19), WY (Braley, supra note
23).

54. AK (Charliaga, supra note 22), AZ (Denny, supra
note 21), AR (Thompson, supra note 20), CA (Day,
supra note 8), CO (Hare, supra note 21), DC (Ibn-
Tamas (1979), supra note 20; Ibn-Tamas (1983),
supra note 20), FL (Rogers, supra note 8; Hickson,
supra note 4; Hawthorne, supra note 20; Terry,
supra note 3; Soubielle, supra note 22), GA (Pugh,
supra note 5; Motes, supra note 8; Smith, supra
note 3; Ledford, supra note 18; Strong, supra note
21; Norris, supra note 21), HI (Miller, supra note
22), ID (Griffiths, supra note 19), IL (Fleming,
supra note 8; Minnis, supra note 3), IN (Fultz,
supra note 20; Davidson, supra note 22), IA (Jones,
supra note 22; Nunn, supra note 21), KS (Cramer,
supra note 8; Hodges, supra note 3; Hundley, supra
note 4; Meyer, supra note 19), KY (Craig, supra
note 19; Rose, supra note 19; Ford, supra note 21;
Jones, supra note 22), LA (Moore, supra note 21;
Burton, supra note 20), ME (Anaya (1981), supra
note 3; Anaya (1983), supra note 21; Murchison,
supra note 22), MD (Banks, supra note 21; Smith,
supra note 22), MA (Rodriguez, supra note 3; Scott,
supra note 22; Moore, supra note 20), MI (Matthews,
supra note 22; Smith, supra note 22), MN (Tisland,
supra note 22; Vizenor, supra note 22; Borchardt,
supra note 12), MS (Lentz, supra note 20), MO
(Landrum, supra note 18 (There is some question
whether this code applies to this case.)), MT
(Hess, supra note 3), NE (Jackson, supra note 21),
NH (Masters, supra note 22 (There is some question
whether this code applies to this case.)), NJ
(Myers, supra note 8; Kelly, supra note 3), NM
(Swavola, supra note 21; Vigil, supra note 18;
Branchal, supra note 8), NY (Barrett, supra note
21; Rollock, supra note 21; Anderson, supra note
21; Fratt, supra note 21; Ciervo, supra note 3;
Torres, supra note 11; Smith, supra note 22;
Brundidge, supra note 22; Pizarro, supra note 22),
NC (Torres, supra note 21; Heidmous, supra note 21
(There is some question whether this code applies
to this case.)), OH (Daws, supra text, page 2;
Flowers, supra note 22; Higgs, supra note 21; Rice,
supra note 21; Koss, supra note 3 (There is some
question whether this code applies to this case.);
Spinks, supra note 8; Seymour, supra note 18), OK
(Bechtel, supra note 3), OR (Moore, supra note 20),
PA (Forsythe, supra note 22; Miller, supra note 8;
Kacsmar, supra note 8; Dillon, supra note 21;
Stonehouse, supra note 4; Tyson, supra note 18), RI
(Ordway, supra note 18), SC (Wilkins, supra note 8;
Hill, supra note 3), SD (Burtzlaff, supra note 19),
TN (Zimmerman, supra note 21; Furlough, supra note
21; Devita, supra note 21), TX (Hayward, supra note
21; Pierini, supra note 21; Fielder, supra note 3;
King, supra note 22; In The Interest Of, supra note
22), UT (Hazel, see supra text, page 7), VT
(Verrinder, supra note 19), VA (Wilmoth, supra note
21; Plantz, supra note 22; Credle, supra note 22),
WA (Hanson, supra note 7; Walker, supra note 21;
Kelly, supra note 4; Allery, supra note 3; Janes,
supra note 4), WV (Steele, supra note 21; Duell,
supra note 21; McClanahan, supra note 22), WY
(Griffin, supra note 21 (There is some question
whether this code applies to this case.)).

55. Also note the appellate court's observation in
Aris, supra note 3, that "[i]t is not uncommon for
a battered woman to kill the batterer while he
sleeps." 

56. Although not within the scope of this analysis,
it would also be useful to investigate and
determine whether the outcomes of trials in
nontraditional self-defense cases (whether or not
expert testimony was used or was an issue) differ
significantly from those in traditional self-
defense situations.

57. AL (Hill, supra note 20), CA (Aris, supra note
3), GA (Chapman (1988), supra note 4), KS (Stewart,
supra note 4), MI (Wilson, supra note 19), MN
(Hennum, supra note 3), NV (Larson, supra note 21),
NH (Briand, supra note 20), NY (Emick, supra note
3), NC (Norman, supra note 21), ND (Leidholm, supra
note 21), OH (Manning, supra note 18), SC
(Robinson, supra note 4), TN (Aucoin, supra note
21), WI (Landis, supra note 19; Felton, supra note
21).

58. LA (Necaise, supra note 24), NY (Powell, supra
note 24), OH (Poling, supra note 6).

59. AL (Haney, supra note 18), CO (Yaklich, supra
note 21), DE (McBride, supra note 22), FL (Stiles,
supra note 11), MA (Grimshaw (1992), supra note
20), NC (Clark, supra note 18), OH (Lampkin, supra
note 21), TN (Leaphart, supra note 21), TX (Ortiz,
supra note 9), WA (Hutcheson, supra note 21;
Bowerman, supra note 21; Alaniz, supra note 22).

60. IL (Jackson, supra note 9), MD (Boyd, supra
note 24), MO (Anderson, supra note 24; Martin,
supra note 24), MT (Dannels, supra note 24).

61. AK (Brandon, supra note 18), CT (Freeney, supra
note 5; Borrelli, supra note 3; Battista, supra
note 19), FL (Rhone, supra note 19), GA (Thompson,
supra note 19), HI (Cababag, supra note 3), IL
(Server, supra note 8), IN (Dausch, supra note 21),
MN (Merrill, supra note 18), NE (Doremus, supra
note 18), NH (Baker, supra note 19), NJ (J.Q.,
supra note 18; Frost, supra note 8), NY (Nicole V.,
supra note 3; Taylor, supra note 18), WA (Ciskie,
supra note 7), WI (Bednarz, supra note 3; Slade,
supra note 3), WY (Frenzel, supra note 21).

62. AK (Brandon, supra note 18 -- although expert
testimony was not actually presented by the
prosecution), CT (Borrelli, supra note 3), IN
(Dausch, supra note 21), HI (Cababag, supra note
3), WI (Bednarz, supra note 3).

63. CT (Battista, supra note 19 (to explain delayed
reporting by battered woman)); Freeney, supra note
5 (to explain why woman gave disjointed version of
events and did not attempt to escape)), FL (Rhone,
supra note 19 (to show battered woman's lack of
consent to sex, and why she did not escape or
complain to relatives)), GA (Thompson, supra note
19 (to show sexual assault victim's behavior
consistent with "battered woman syndrome")), WA
(Ciskie, supra note 7 (to explain battered woman's
failure to report rape or end relationship)), WI
(Slade, supra note 3 (to explain characteristics of
batterers, why battered women do not leave)).

64. IL (Server, supra note 8 (testimony on rape
trauma syndrome admitted to show behavior
consistent with that of child victims of sexual
assault)), NE (Doremus, supra note 18 (to show
mildly retarded man's lack of consent to sex)), NJ
(J.Q., supra note 18 (to explain delayed reporting
and that symptoms consistent with child sexual
abuse accommodation syndrome)), NY (Taylor, supra
note 18 (to explain reluctance of rape victim to
identify defendant)), WY (Frenzel, supra note 21
(to explain delayed reporting in child sexual abuse
case)).

65. AK (Haakanson, supra note 19 (profile testimony
inadmissible)), GA (Pruitt, supra note 24 (although
error was harmless, expert testimony on battered
woman syndrome should not have been admitted since
case did not involve woman defendant asserting
self-defense and there was no evidence woman was
battered)), KS (Clements, supra note 4 (profile
testimony inadmissible)), KY (Brandenburg, supra
note 24 (battered woman's state of mind irrelevant
to whether defendant assaulted her); Dyer, supra
note 20 (profile evidence inadmissible unless
qualified expert can express opinion as to
defendant's mental condition)), NJ (Walker, supra
note 21 (expert testimony not admissible to explain
excited utterances of hospitalized battered woman
before she died from injuries inflicted)), OH
(Dowd, supra note 6 (follows Pargeon and holds
expert testimony on "battered woman syndrome"
inadmissible because probative value outweighed by
prejudice to defendant, it amounts to impermissible
evidence of defendant's prior bad acts and it is
accepted in Ohio only in support of battered
woman's self-defense claim); Pargeon, supra note 6;
see also Roquemore, supra note 18 (profile
testimony inadmissible against defendant charged
with rape-murder)), OR (Milbradt, supra note 20
(expert testimony that directly gives opinion that
sexual assault complainant is credible is not
permissible)).

66. MN (Merrill, supra note 18), NH (Baker, supra
note 19 -- expert testimony used to rebut male
defendant's claim of insanity). In a third case, NY
(Nicole V., supra note 3), expert testimony was
admitted to corroborate the out-of-court statements
of a non-testifying child victim of sexual assault
whose complaints only needed to be verified by
other evidence. In addition, NCDBW has been
informed but has not yet fully verified reports
that prosecutors in a few states have used expert
testimony on battering and its effects to explain
why a battered woman/complainant refused to testify
at trial. According to Sue McGee, director of the
Domestic Violence Project/SAFE House in Ann Arbor,
MI, such expert testimony by battered women's
advocates, social workers with an M.S.W., or
psychologists in lieu of testimony by the battered
woman herself has been used by prosecutors in their
local courts in approximately 8 to 12 cases in the
past two years, and its use is increasing
(conversation with NCDBW resource coordinator,
Holly White on November 22, 1994). In addition, the
San Diego City Attorney's Office occasionally
offers expert testimony in unusual circumstances
(perhaps six times in one year), such as where a
battered woman complainant recants her testimony on
the stand or surprises the prosecution by refusing
to testify on the eve of trial, and where there is
not sufficient other evidence (e.g., medical
evidence, record of telephone call to 911) to
enable the prosecution to still go forward with
their case (conversation with Jean Emmons,
assistant to Casey Guinn, Esquire on November 22,
1994).

67. AL (Neelley, supra note 24), KY (Foster, supra
note 24), MI (Moseler, supra note 24), OH (Engle,
supra note 6; Lundgren, supra note 6), OK
(McDonald, supra note 21), OR (Bockorny, supra note
21).

68. CA (Romero, supra note 8), KS (Crawford, supra
note 4; Dunn (1992), supra note 22), MN (Mick,
supra note 11; Krage, supra note 19), NJ (McGuigen,
supra note 8), OK (McDonald, supra note 21), OR
(Bockorny, supra note 21), VA (Pancoast, supra note
21), WV (Lambert, supra note 21).

69. AL (Neelley, supra note 24), KY (Foster, supra
note 24), MI (Moseler, supra note 24), OH (Engle,
supra note 6; Lundgren, supra note 6), WA (Riker,
supra note 7). Note that KS (Dunn (1988), supra
note 5) also excluded expert testimony in a duress
case, but since this decision was overruled by the
federal district court, it was not counted here.

70. FL (Jackson, supra note 21), IL (Smith, supra
note 21; Novy, supra note 21; Gindorf, supra note
21), IN (Allen, supra note 21), MA (Lazarovich,
supra note 20), MN (Loch, supra note 21), MO
(Williams, supra note 20), MT (Redcrow, supra note
21), RI (McMaugh, supra preface endnote 1).

71. MO (Clay, supra note 24), OH (Coulter, supra
note 6).

72. The attorney was quoted in an Associated Press
story and in the August 15, 1994 edition of New
Jersey Lawyer (3 NJL 1573) (on file with NCDBW). In
the Cusseaux case (supra note 11), the court held,
in a case of first impression, that "the `battered-
woman's (sic) syndrome' is now a cognizable cause
of action under the laws of New Jersey." However,
as discussed infra, in doing the research for this
analysis, we found at least a dozen other cases
from other states where expert testimony on
battering and its effects was used in civil
actions.

73. CO (Morrison, supra note 21), CT (Knock, supra
note 3), ID (Curtis (1993), supra note 21; Curtis
(1994), supra note 21), LA (Laughlin, supra note
18), MD (Kaliher, supra note 22), MO (Hunziger,
supra note 21), MT (Houtchens, supra note 21), OH
(Scheibert, supra note 21), PA (Heck, supra note
22), SC (Doe, supra note 8), VT (Blair, supra note
21). Given the August 1994 ruling by a New Jersey
court (Cusseaux, supra note 11) that "battered
woman syndrome" states a civil cause of action,
presumably expert testimony will also be used in
civil actions in that state as well.

74. NE (C.P., supra note 21), NY (Glenn G., supra
note 21), WV (Betty J.W., supra note 21).

75. CT (Knock, supra note 3) (coded "AH"), LA
(Laughlin, supra note 18) (coded "AR"), NJ
(Cusseaux, supra note 11) (coded "AH") and SC (Doe,
supra note 8) (coded "AH").

76. CO (Morrison, supra note 21), ID (Curtis
(1993), supra note 21; Curtis (1994), supra note
21), MO (Hunziger, supra note 21), MT (Houtchens,
supra note 21), OH (Scheibert, supra note 21), VT
(Blair, supra note 21), NE (C.P., supra note 21),
NY (Glenn G., supra note 21), WV (Betty J.W., supra
note 21). The remaining two cases -- MD (Kaliher,
supra note 22) and PA (Heck, supra note 22) -- 
were actually coded "O" (i.e., these were trial
court cases for which trial transcripts of expert
testimony were reviewed).

77. Ga. Code Ann. section 16-3-21(d), Nev. Rev. Stat.
section 48.061(2), Tex. Penal Code section 19.06.

78. Cal. Evid. Code section 1107(a), Nev. Rev. Stat.
section 48.061.

79. Mass. Gen. Laws Ann. ch. 233, section 23E, S.C. Code
Ann. section 17-23-170(A).

80. The Nevada statute provides for the
admissibility of expert testimony concerning the
effect of domestic violence to show the defendant's
state of mind when determining whether a person is
excepted from criminal liability (Nev. Rev. Stat.
section 48.061(1)).

81. Cal. Evid. Code section 1107 (see Section 2 of Stats.
1991, c. 812 (A.B. 785)), Mass. Gen. Laws Ann. ch.
233, section 23E, Okla. Stat. Ann. tit. 22 section 40.7.

82. 11th Cir. (Sixty Acres (1991), supra note 46),
10th Cir. (Dunn (1992), supra note 41), 9th Cir.
(Gable, supra note 40; Russell, supra note 40;
Johnson, supra note 40; Sebresos, supra note 40),
6th (Ware, supra text, page 2), 3rd Cir. (Santos,
supra note 46), N.D.Ill. (Bell, supra note 44;
Gregory, supra note 45), E.D.N.Y. (Gaviria, supra
note 46), N.D.Ala. (Sixty Acres (1990), supra note
46), S.D.Fla. (Ellis, supra note 42), D.Kan. (Dunn
(1991), supra note 42), U.S. Tax Ct. (Toner, supra
note 46). 

83. 9th Cir. (Archer, supra note 37; Homick, supra
note 37) (but note that in both 9th Circuit cases,
testimony was excluded on procedural grounds, i.e.,
failure to give advance notice of the testimony),
7th Cir. (U.S. v. Mark Thomas, supra note 37).

84. S.D.N.Y. (Taylor, supra note 37).

85. 10th Cir. (Lumpkin, supra note 46), 9th Cir.
(July, supra note 40), 8th Cir. (Whitetail, supra
note 43), 6th Cir. (Meeks, supra note 40), E.D.Pa.
(Fennell, supra note 45), D.Hawaii (U.S. v. Wilson,
Crim. No. 91-01502ACK, U.S. Dist. Ct. (D. Hawaii
1991), testimony of Marilyn Hutchinson).

86. 6th Cir. (Thomas v. Arn, supra note 37),
S.D.Ohio (Tourlakis, supra note 37).

87. 5th Cir. (Gordon (1987), supra note 46),
W.D.La. (Gordon (1986), supra note 46).

88. 9th Cir. (Winters, supra note 40), 8th Cir.
(Arcoren, supra note 41).

89. AL, AZ, AR, CA, CO, DE, ID, IA, MI, MT, NE, NV,
NH, NC, ND, SD, TN, VT, VA, WV.

90. FL (Terry, supra note 3), GA (Pruitt, supra
note 24), IL (Jackson, supra note 9), KS (Dunn
(1988), supra note 5; Stewart, supra note 4; Meyer,
supra note 19), LA (Burton, supra note 20), MD
(Boyd, supra note 24), MA (Rodriguez, supra note
3), MS (Lentz, supra note 20), MO (Williams, supra
note 20; Clay, supra note 24), NM (Branchal, supra
note 8), OH (Lundgren, supra note 6; Dowd, supra
note 6; C. Redding, supra note 6; M. Redding, supra
note 6; Pargeon, supra note 6; Poling, supra note
6; Koss, supra note 3), OK (Bechtel, supra note 3),
SC (Hill, supra note 3), TX (Fielder, supra note 3;
Ortiz, supra note 9 (There is some question whether
this code applies to this case.)), UT (Hazel, supra
text, page 7 (There is some question whether this
code applies to this case.)), WA (Hanson, supra
note 7; Walker, supra note 21), WI (Balke, supra
note 24), WY (Jahnke, supra note 25).

91. IN (Fultz, supra note 20), OH (Lundgren, supra
note 6 (There is some question whether this code
applies to this case.)); note that LA (Burton,
supra note 20) formerly had this requirement under
case law, but no longer does under the terms of its
admissibility statute.

92. MO (Anderson, supra note 24; Martin, supra note
24).

93. AK (Haakanson, supra note 19), DC (Ibn-Tamas
(1979), supra note 20; Ibn-Tamas (1983), supra note
20), FL (Hawthorne, supra note 20; Terry, supra
note 3), GA (Chapman (1987), supra note 22), KS
(Hodges, supra note 3; Meyer, supra note 19), KY
(Dyer, supra note 20; Brandenburg, supra note 24;
Rose, supra note 19), MA (Moore, supra note 20), MN
(Borchardt, supra note 12), NJ (Kelly, supra note
3), NM (Gallegos, supra note 3), OH (Koss, supra
note 3), OR (Milbradt, supra note 20; Moore, supra
note 20), WA (Riker, supra note 7), WY (Frenzel,
supra note 21; Buhrle, supra note 25; Jahnke, supra
note 25).

94. CT (Borrelli, supra note 3), FL (Rogers, supra
note 8; Hickson, supra note 4; Stiles, supra note
11), IL (Minnis, supra note 3), MN (Hennum, supra
note 3), MO (Williams, supra note 20), NY (Torres,
supra note 11), OH (Flowers, supra note 22), UT
(Hazel, supra text, page 7), WA (Hanson, supra note
7).

95. CT (Borrelli, supra note 3), DC (Ibn-Tamas
(1979), supra note 20), FL (Rogers, supra note 8;
Stiles, supra note 11; Hawthorne, supra note 20;
Terry, supra note 3), HI (Cababag, supra note 3),
KY (Dyer, supra note 20; Craig, supra note 19;
Rose, supra note 19), LA (Moore, supra note 21), ME
(Anaya (1981), supra note 3), NJ (Kelly, supra note
3; Cusseaux, supra note 11), NM (Gallegos, supra
note 3), NY (Barrett, supra note 21), OH (Rice,
supra note 21; Koss, supra note 3), OK (Bechtel,
supra note 3), OR (Moore, supra note 20), RI
(Ordway, supra note 18), SC (Hill, supra note 3),
UT (Hazel, supra text, page 7), WA (Allery, supra
note 3).

96. FL (Stiles, supra note 11; note that this was a
"hire to kill" case), GA (Pruitt, supra note 24),
ME (Anaya (1981), supra note 3), MA (Rodriguez,
supra note 3), OH (Daws, supra text, page 2;
Roquemore, supra note 18; Coulter, supra note 6;
Rice, supra note 21; Pargeon, supra note 6; Poling,
supra note 6; Koss, supra note 3; Seymour, supra
note 18), OK (Bechtel, supra note 3), PA (Dillon,
supra note 21; Stonehouse, supra note 4; Tyson,
supra note 18), WA (Allery, supra note 3), WI
(Balke, supra note 24 (There is some question
whether this code applies to this case.)), WY
(Griffin, supra note 21 (There is some question
whether this code applies to this case.)).

97. TX (Fielder, supra note 3).

98. Ga. Code Ann. section 16-3-21(d), La. Code Evid. Ann.
art. 404 (A)(2), Ohio Rev. Code Ann. section 2901.06(B),
Tex. Penal Code section 19.06(b)), Wyo. Stat. (Crimes and
Offenses) section 6-1-203(b).

99. La. Code Evid. Ann. art. 404(A)(2), Md. Cts. &
Jud. Proc. Code Ann. section 10-916(b), Okla. Stat. Ann.
tit. 22, section 40.7.

100. Cal. Evid. Code section 1107(b), Ohio Rev. Code Ann.
section 2901.06(A)(1), S.C. Code Ann. section 17-23-170(B).

101. S.C. Code Ann. section 17-23-170(D).

102. S.C. Code Ann. section 17-23-170(C).

103. See Mo. Ann. Stat. (Crimes and Punishment)
section 563.033, and Williams, supra note 20.

104. 10th Cir. (Lumpkin, supra note 46).

105. 9th Cir. (Johnson, supra note 40), 8th Cir.
(Arcoren, supra note 41).

106. E.D.Pa. (Fennell, supra note 45), S.D.N.Y.
(Taylor, supra note 37). 

107. S.D.Ohio (Tourlakis, supra note 37), E.D.Pa.
(Fennell, supra note 45).

108. S.D.N.Y. (Taylor, supra note 37).

109. 8th Cir. (Arcoren, supra note 41), E.D.Pa.
(Fennell, supra note 45).

110. S.D.Ohio (Tourlakis, supra note 37), E.D.Pa.
(Fennell, supra note 45).

111. 9th Cir. (Archer, supra note 37; Homick, supra
note 37).

112. AL (Neelley, supra note 24), GA (Thompson,
supra note 19), MI (Moseler, supra note 24), MN
(Loch, supra note 21 (grounds not specified)), NM
(Swavola, supra note 21; Vigil, supra note 18), NY
(Rollock, supra note 21), OH (Engle, supra note 6;
Coulter, supra note 6 (on grounds not related to
expert testimony); Seymour, supra note 18), SC
(Robinson, supra note 4), WI (Balke, supra note
24). Note that a WI court has also found counsel to
be ineffective in another decision (Felton, supra
note 21).

113. CA (Romero, supra note 8; Day, supra note 8),
DE (State v. Scott, 1989 WL 90613 (Del. Super.
7/19/89) (on grounds not related to expert
testimony), NV (Larson, supra note 21), PA (Miller,
supra note 8; Stonehouse, supra note 4; Tyson,
supra note 18), TN (Zimmerman, supra note 21), WI
(Felton, supra note 21). Note that a WI court also
found counsel not ineffective in a more recent
decision (Balke, supra note 24). 

114. GA (Ledford, supra note 18), KS (Dunn (1988),
supra note 5), MS (Lentz, supra note 20), MT
(Dannels, supra note 24), TN (Aucoin, supra note
21).

115. 9th Cir. (Archer, supra note 37) (note that
the court did not reach the issue on the merits)),
6th Cir. (Ware, supra text, page 2; Meeks, supra
note 40).

116. D.Kan. (Dunn (1991), supra note 42).

117. AK (Charliaga, supra note 22), AL (Haney,
supra note 18), CA (Aris, supra note 3), CO
(Yaklich, supra note 21), CT (Knock, supra note 3),
DC (Ibn-Tamas (1979), supra note 20), DE (McBride,
supra note 22), FL (Jackson, supra note 21; Rogers,
supra note 8; Soubielle, supra note 22; Hickson,
supra note 4 (only if prior notice to state and
chance for adverse examination)), GA (Thompson,
supra note 19; Pugh, supra note 5; Chapman (1988),
supra note 4; Chapman (1987), supra note 22;
Clenney, supra note 24; Norris, supra note 21;
Smith, supra note 3), ID (Curtis (1993), supra note
21), IL (Smith, supra note 21; Novy, supra note 21;
Jackson, supra note 9; Fleming, supra note 8;
Gindorf, supra note 21), IN (Dausch, supra note 21;
Davidson, supra note 22), KS (Cramer, supra note 8;
Dunn (1992), supra note 22; Stewart, supra note 4;
Hodges, supra note 3), KY (Jones, supra note 22;
Dyer, supra note 20 (There is some question whether
this code applies to this case.); Craig, supra note
19), LA (Laughlin, supra note 18; Burton, supra
note 20; Necaise, supra note 24 (only if plead
insanity)), ME (Murchison, supra note 22; Anaya
(1983), supra note 21), MD (Smith, supra note 22;
Kaliher, supra note 22; but see Boyd, supra note 24
(expert testimony proffered but not introduced
because trial court said it did not generate self-
defense issue)), MA (Rodriguez, supra note 3 (high
court notes state statute allows such testimony);
Lazarovich, supra note 20; Scott, supra note 22),
MN (Mick, supra note 11; Krage, supra note 19 (such
specific testimony allowed only if defendant waives
5th Amendment right not to be subjected to adverse
examination)), MO (Hunziger, supra note 21;
Williams, supra note 20; Landrum, supra note 18),
MT (Houtchens, supra note 21; Hess, supra note 3;
Dannels, supra note 24), NE (C.P., supra note 21
(note court sees "battered woman syndrome" as
"malady")), NH (Briand, supra note 20; Masters,
supra note 22), NM (Swavola, supra note 21), NY
(Barrett, supra note 21; Glenn G., supra note 21;
Anderson, supra note 21; Fratt, supra note 21;
Brundidge, supra note 22; Pizarro, supra note 22;
Ciervo, supra note 3; Torres, supra note 11; Emick,
supra note 3; Brown, supra note 22), NC (Clark,
supra note 18; Norman, supra note 21; Heidmous,
supra note 21), ND (Leidholm, supra note 21), OH
(Higgs, supra note 21; Poling, supra note 6;
Flowers, supra note 22), OK (McDonald, supra note
21), OR (Bockorny, supra note 21), PA (Dillon,
supra note 21; Forsythe, supra note 22; Heck, supra
note 22; Gatewood, supra note 22), RI (McMaugh,
supra preface endnote 1), SC (Wilkins, supra note
8), TN (Furlough, supra note 21; Devita, supra note
21), TX (Hayward, supra note 21; Ortiz, supra note
9; Pierini, supra note 21; King, supra note 22; In
The Interest Of, supra note 22), VA (Credle, supra
note 22; Plantz, supra note 22; Wilmoth, supra note
21), WA (Kelly, supra note 4; Bowerman, supra note
21 (according to Hutcheson, supra note 21)), WV
(McClanahan, supra note 22; Steele, supra note 21;
Duell, supra note 21).

118. AL (Hill, supra note 20 (There is some
question whether this code applies to this case.)),
AK (Pabst, supra note 22; Haakanson, supra note 19
(There is some question whether this code applies
to this case.)), CO (Hare, supra note 21), CT
(Battista, supra note 19; Borrelli, supra note 3),
DC (Ibn-Tamas (1979), supra note 20), DE (McBride,
supra note 22), FL (Rogers, supra note 8; Hickson,
supra note 4; Soubielle, supra note 22), GA
(Thompson, supra note 19; Chapman (1987), supra
note 22; Smith, supra note 3), IL (Smith, supra
note 21), IN (Dausch, supra note 21; Davidson,
supra note 22), IA (Jones, supra note 22), KS (Dunn
(1992), supra note 22; Hodges, supra note 3;
Hundley, supra note 4), KY (Jones, supra note 22;
Rose, supra note 19), LA (Burton, supra note 20),
ME (Murchison, supra note 22), MD (Smith, supra
note 22), MA (Grimshaw (1991), supra note 21;
Lazarovich, supra note 20; Scott, supra note 22;
Rodriguez, supra note 3 (high court also notes that
state statute permits testimony whether defendant
is a battered woman)), MI (Wilson, supra note 19;
Smith, supra note 22), MN (Krage, supra note 19;
Hennum, supra note 3; Tisland, supra note 22;
Vizenor, supra note 22), MO (Williams, supra note
20 (court notes testimony admissible even if
defendant not married to batterer)), NH (Masters,
supra note 22), NJ (Frost, supra note 8), NY (Glenn
G., supra note 21; Smith, supra note 22; Brundidge,
supra note 22; Pizarro, supra note 22; Torres,
supra note 11; Emick, supra note 3; Brown, supra
note 22), OH (Poling, supra note 6; Flowers, supra
note 22), OR (Moore, supra note 20), PA (Dillon,
supra note 21; Stonehouse, supra note 4; Singh,
supra note 22; Forsythe, supra note 22; Heck, supra
note 22; Gatewood, supra note 22), SD (Burtzlaff,
supra note 19), TN (Furlough, supra note 21;
Leaphart, supra note 21), TX (King, supra note 22;
In The Interest Of, supra note 22 (in context of
post-traumatic stress disorder)), VT (Verrinder,
supra note 19), VA (Credle, supra note 22; Plantz,
supra note 22; Wilmoth, supra note 21), WA (Ciskie,
supra note 7; Allery, supra note 3), WI (Bednarz,
supra note 3; Slade, supra note 3; Landis, supra
note 19; Felton, supra note 21), WV (McClanahan,
supra note 22; Betty J.W., supra note 21), WY
(Frenzel, supra note 21; Griffin, supra note 21
(There is some question whether this code applies
to this case.)).

119. AK (Haakanson, supra note 19), GA (Clenney,
supra note 24 (court made this holding as to former
spouses)), KY (Rose, supra note 19), MI (Wilson,
supra note 19), MN (Hennum, supra note 3), OH
(Dowd, supra note 6; Pargeon, supra note 6), PA
(Singh, supra note 22), SD (Burtzlaff, supra note
19), VT (Verrinder, supra note 19), WI (Bednarz,
supra note 3; Landis, supra note 19).

120. RI (McMaugh, supra preface endnote 1).

121. AL (Neelley, supra note 24), CA (Romero, supra
note 8), CO (Yaklich, supra note 21), CT (Borrelli,
supra note 3 (notes with seeming approval use of
expert testimony for this purpose permitted in
other jurisdictions)), FL (Stiles, supra note 11;
Terry, supra note 3), GA (Motes, supra note 8;
Chapman (1988), supra note 4; Pruitt, supra note
24; Chapman (1987), supra note 22), IL (Jackson,
supra note 9; Fleming, supra note 8; Minnis, supra
note 3), IN (Fultz, supra note 20), IA (Nunn, supra
note 21), KS (Crawford, supra note 4; Clements,
supra note 4; Stewart, supra note 4; Hodges, supra
note 3; Meyer, supra note 19), LA (Burton, supra
note 20), ME (Anaya (1981), supra note 3), MA
(Grimshaw (1991), supra note 21; Moore, supra note
20), MI (Matthews, supra note 22), MN (Hennum,
supra note 3), MO (Anderson, supra note 24;
Williams, supra note 20 (court holds such testimony
admissible even if defendant not married to
batterer); Clay, supra note 24; Martin, supra note
24), MS (Lentz, supra note 20), MT (Hess, supra
note 3), NV (Larson, supra note 21), NH (Briand,
supra note 20), NJ (Myers, supra note 8; Kelly,
supra note 3; Cusseaux, supra note 11), NM
(Gallegos, supra note 3; Branchal, supra note 8),
NY (Anderson, supra note 21; Rollock, supra note
21; Brundidge, supra note 22; Ciervo, supra note 3;
Torres, supra note 11; Emick, supra note 3), NC
(Norman, supra note 21), ND (Leidholm, supra note
21), OH (Daws, supra text, page 2; Lundgren, supra
note 6; C. Redding, supra note 6; M. Redding, supra
note 6; Manning, supra note 18; Pargeon, supra note
6; Poling, supra note 6; Rice, supra note 21; Koss,
supra note 3; Spinks, supra note 8), OK (Bechtel,
supra note 3), OR (Moore, supra note 20), PA
(Miller, supra note 8; Tyson, supra note 18;
Kacsmar, supra note 8; Dillon, supra note 21;
Stonehouse, supra note 4; Forsythe, supra note 22),
SC (Robinson, supra note 4; Wilkins, supra note 8;
Hill, supra note 3), TN (Zimmerman, supra note 21;
Furlough, supra note 21), TX (Ortiz, supra note 9),
UT (Hazel, supra text, page 7), WA (Riker, supra
note 7; Janes, supra note 4; Hanson, supra note 7;
Walker, supra note 21; Allery, supra note 3; Kelly,
supra note 4), WV (Steele, supra note 21).

122. AK (Pabst, supra note 22), AZ (Denny, supra
note 21), CA (Aris, supra note 3), CO (Yaklich,
supra note 21; Morrison, supra note 21), DE
(McBride, supra note 22), FL (Jackson, supra note
21; Stiles, supra note 11; Rhone, supra note 19;
Soubielle, supra note 22), GA (Chapman (1987),
supra note 22), ID (Griffiths, supra note 19), IL
(Smith, supra note 21; Novy, supra note 21; Server,
supra note 8), IA (Nunn, supra note 21), KS
(Hundley, supra note 4), KY (Dyer, supra note 20;
Ford, supra note 21), LA (Laughlin, supra note 18;
Necaise, supra note 24), ME (Murchison, supra note
22; Anaya (1981), supra note 3), MI (Smith, supra
note 22), MN (Krage, supra note 19), MO (Hunziger,
supra note 21; Williams, supra note 20), MT
(Dannels, supra note 24), NE (Doremus, supra note
18), NJ (J.Q., supra note 18; Myers, supra note 8;
McGuigen, supra note 8; Kelly, supra note 3;
Cusseaux, supra note 11), NM (Gallegos, supra note
3; Branchal, supra note 8), NY (Barrett, supra note
21; Anderson, supra note 21; Fratt, supra note 21;
Brundidge, supra note 22; Pizarro, supra note 22;
Nicole V., supra note 3; Torres, supra note 11), NC
(Clark, supra note 18), OH (Daws, supra text, page
2; Roquemore, supra note 18; Manning, supra note
18; Poling, supra note 6; Rice, supra note 21;
Flowers, supra note 22), OK (Bechtel, supra note
3;), PA (Miller, supra note 8; Kacsmar, supra note
8; Dillon, supra note 21; Forsythe, supra note 22),
SC (Wilkins, supra note 8; Hill, supra note 3), SD
(Burtzlaff, supra note 19), TN (Zimmerman, supra
note 21; Furlough, supra note 21), TX (Fielder,
supra note 3; In The Interest Of, supra note 22),
UT (Hazel, supra text, page 7), WA (Riker, supra
note 7; Hutcheson, supra note 21; Ciskie, supra
note 7; Allery, supra note 3), WI (Felton, supra
note 21), WV (Steele, supra note 21; Duell, supra
note 21).

123. Braley, supra note 23.

124. CA (Romero, supra note 8; Aris, supra note 3
(but held expert testimony on the subjective
reasonableness of the defendant's conduct was
irrelevant to the issue of a reasonable person's
conduct, i.e., the objective part of a complete or
"perfect" self-defense claim)), DC (Ibn-Tamas
(1979), supra note 20), FL (Stiles, supra note 11;
Soubielle, supra note 22; Hawthorne, supra note 20;
Terry, supra note 3), IL (Fleming, supra note 8),
IN (Fultz, supra note 20), IA (Nunn, supra note
21), KS (Crawford, supra note 4; Clements, supra
note 4; Dunn (1988), supra note 5; Stewart, supra
note 4; Meyer, supra note 19; Hundley, supra note
4), LA (Burton, supra note 20), MD (Banks, supra
note 21), MA (Grimshaw (1991), supra note 21;
Moore, supra note 20), MI (Wilson, supra note 19;
Matthews, supra note 22), MN (Hennum, supra note 3;
Mick, supra note 11), NJ (Myers, supra note 8;
Kelly, supra note 3; Cusseaux, supra note 11), NM
(Gallegos, supra note 3; Branchal, supra note 8),
NY (Barrett, supra note 21; Torres, supra note 11),
ND (Leidholm, supra note 21), OH (Daws, supra text,
page 2; Lundgren, supra note 6; C. Redding, supra
note 6; Koss, supra note 3), OK (Bechtel, supra
note 3), PA (Miller, supra note 8; Tyson, supra
note 18; Dillon, supra note 21; Stonehouse, supra
note 4; Forsythe, supra note 22), SC (Robinson,
supra note 4; Wilkins, supra note 8), TN
(Zimmerman, supra note 21), TX (Fielder, supra note
3), UT (Hazel, supra text, page 7), VA (Plantz,
supra note 22; Pancoast, supra note 21; Wilmoth,
supra note 21), WA (Riker, supra note 7; Janes,
supra note 4; Hanson, supra note 7; Walker, supra
note 21; Allery, supra note 3; Kelly, supra note
4), WV (McClanahan, supra note 22; Steele, supra
note 21), WY (Jahnke, supra note 25).

125. GA (Mullis, supra note 24), WY (Buhrle, supra
note 25).

126. CA (Romero, supra note 8; Aris, supra note 3),
DC (Ibn-Tamas (1979), supra note 20), FL (Stiles,
supra note 11; Hawthorne, supra note 20; Terry,
supra note 3), GA (Chapman (1988), supra note 4),
IL (Fleming, supra note 8), IN (Fultz, supra note
20), IA (Nunn, supra note 21), KS (Crawford, supra
note 4; Dunn (1988), supra note 5; Meyer, supra
note 19; Hundley, supra note 4), LA (Burton, supra
note 20), MA (Grimshaw (1991), supra note 21;
Moore, supra note 20), NJ (Myers, supra note 8), NM
(Gallegos, supra note 3; Branchal, supra note 8),
OH (Daws, supra text, page 2; Lundgren, supra note
6; C. Redding, supra note 6; Manning, supra note
18; Pargeon, supra note 6), OK (Bechtel, supra note
3), PA (Tyson, supra note 18), SC (Robinson, supra
note 4; Wilkins, supra note 8), TN (Furlough, supra
note 21), VA (Plantz, supra note 22), WA (Janes,
supra note 4; Allery, supra note 3; Kelly, supra
note 4).

127. CA (Day, supra note 8; Romero, supra note 8;
Aris, supra note 3), GA (Pugh, supra note 5), MD
(Banks, supra note 21), NJ (Myers, supra note 8;
Kelly, supra note 3; Cusseaux, supra note 11), ND
(Leidholm, supra note 21), OH (C. Redding, supra
note 6; Pargeon, supra note 6; Koss, supra note 3).

128. Pargeon, supra note 6; Koss, supra note 3.

129. Walker, supra note 21.

130. AK (Pabst, supra note 22), FL (Soubielle,
supra note 22), GA (Smith, supra note 3), KS (Dunn
(1992), supra note 22), ME (Anaya (1981), supra
note 3), NH (Masters, supra note 22), NM (Gallegos,
supra note 3), NY (Brundidge, supra note 22;
Ciervo, supra note 3; Emick supra note 3), NC
(Clark, supra note 18; Norman, supra note 21), OR
(Bockorny, supra note 21 (court approved state's
expert testimony that jail inmates in general tend
to "work over their story" to rebut defense
expert's testimony that defendant was being
truthful); Moore, supra note 20), SC (Wilkins,
supra note 8), TN (Furlough, supra note 21), TX
(King, supra note 22; In The Interest Of, supra
note 22), VA (Pancoast, supra note 21 (although
note that this was not expert testimony on
"battered woman syndrome")).

131. CA (Aris, supra note 3), DC (Ibn-Tamas (1979),
supra note 20), GA (Pugh, supra note 5; Chapman
(1987), supra note 22), ID (Griffiths, supra note
19), KY (Craig, supra note 19; Rose, supra note
19), MD (Kaliher, supra note 22), MA (Scott, supra
note 22), MI (Wilson, supra note 19), MN (Loch,
supra note 21 (implied holding)), NY (Pizarro,
supra note 22 (although the testimony actually
seems to be going to the ultimate fact)), OH
(Poling, supra note 6; Flowers, supra note 22), OK
(Bechtel, supra note 3), PA (Forsythe, supra note
22), SD (Burtzlaff, supra note 19), UT (Hazel,
supra text, page 7), VA (Wilmoth, supra note 21),
WA (Ciskie, supra note 7), WI (Bednarz, supra note
3; Slade, supra note 3), WY (Frenzel, supra note 21
(note that this holding applies to the parallel use
of expert testimony on child sexual abuse
accommodation syndrome); Buhrle, supra note 25).

132. AK (Pabst, supra note 22), CA (Day, supra note
8; Romero, supra note 8), CO (Yaklich, supra note
21), CT (Freeney, supra note 5; Battista, supra
note 19; Borrelli, supra note 3), DC (Ibn-Tamas
(1979), supra note 20), FL (Rhone, supra note 19;
Soubielle, supra note 22; Hawthorne, supra note 20;
Terry, supra note 3), GA (Thompson, supra note 19;
Chapman (1988), supra note 4; Chapman (1987) supra
note 22), IL (Server, supra note 8; Minnis, supra
note 3), IN (Dausch, supra note 21; Davidson, supra
note 22), IA (Jones, supra note 22), KS (Dunn
(1992), supra note 22; Stewart, supra note 4;
Hodges, supra note 3; Hundley, supra note 4), KY
(Jones, supra note 22), LA (Laughlin, supra note
18; Burton, supra note 20), ME (Murchison, supra
note 22; Anaya (1981), supra note 3; Anaya (1983),
supra note 21), MA (Rodriguez, supra note 3;
Grimshaw (1991), supra note 21; Lazarovich, supra
note 20; Scott, supra note 22; Moore, supra note
20), MI (Wilson, supra note 19; Matthews, supra
note 22; Smith, supra note 22), MO (Hunziger, supra
note 21), NH (Masters, supra note 22), NJ (J.Q.,
supra note 18; Frost, supra note 8; Kelly, supra
note 3; Cusseaux, supra note 11), NM (Swavola,
supra note 21; Vigil, supra note 18), NY (Barrett,
supra note 21; Glenn G., supra note 21; Smith,
supra note 22; Taylor, supra note 18; Brundidge,
supra note 22; Pizarro, supra note 22; Nicole V.,
supra note 3; Torres, supra note 11; Emick, supra
note 3), NC (Norman, supra note 21; Heidmous, supra
note 21), OH (Roquemore, supra note 18; Higgs,
supra note 21; Scheibert, supra note 21; Koss,
supra note 3; Flowers, supra note 22), OK
(McDonald, supra note 21), PA (Kacsmar, supra note
8; Stonehouse, supra note 4; Forsythe, supra note
22; Heck, supra note 22; Gatewood, supra note 22),
RI (McMaugh, supra preface endnote 1), SC (Doe,
supra note 8), TX (Pierini, supra note 21; Fielder,
supra note 3; King, supra note 22; In The Interest
Of, supra note 22), VT (Verrinder, supra note 19;
Blair, supra note 21), VA (Credle, supra note 22;
Plantz, supra note 22), WA (Hanson, supra note 7;
Ciskie, supra note 7; Allery, supra note 3), WI
(Slade, supra note 3), WV (Steele, supra note 21),
WY (Frenzel, supra note 21; Griffin, supra note 21
(There is some question whether this code applies
to this case.)).

133. AL (Neelley, supra note 24), IL (White, supra
note 24), MI (Moseler, supra note 24), MT (Dannels,
supra note 24 (implied holding)), OH (Dowd, supra
note 6; Pargeon, supra note 6), WA (Riker, supra
note 7 (holds testimony irrelevant in context of
non-battering relationship)).

134. Note that criminal charges may also be brought
against the battered woman/mother in such
circumstances; see, e.g., Engle, supra note 6.
Engle and other similar cases where the battered
woman/mother asserted a duress defense to such
charges are referred to in Section III.B.3. supra. 

135. NE (C.P., supra note 21), NY (Glenn G., supra
note 21), WV (Betty J.W., supra note 21).

136. CA (Day, supra note 8; Romero, supra note 8),
CT (Borrelli, supra note 3), DC (Ibn-Tamas (1979),
supra note 20), KS (Hodges, supra note 3), MI
(Wilson, supra note 19; Smith, supra note 22), MN
(Hennum, supra note 3), NH (Masters, supra note
22), NJ (J.Q., supra note 18; Kelly, supra note 3),
NM (Vigil, supra note 18), NY (Torres, supra note
11; Taylor, supra note 18 (in context of a rape
case), Brown, supra note 22), OH (Daws, supra text,
page 2; Coulter, supra note 6; Koss, supra note 3),
OK (Bechtel, supra note 3), PA (Dillon, supra note
21; Stonehouse, supra note 4; Singh, supra note
22), UT (Hazel, supra text, page 7), VT (Blair,
supra note 21), WY (Frenzel, supra note 21).

137. FL (Rhone, supra note 19), GA (Norris, supra
note 21), IL (Novy, supra note 21; Gindorf, supra
note 21), KS (Dunn (1988), supra note 5), LA
(Laughlin, supra note 18; Moore, supra note 21 (in
context of insanity defense)), MA (Lazarovich,
supra note 20), MN (Mick, supra note 11), MO
(Hunziger, supra note 21), NV (Larson, supra note
21), NY (Anderson, supra note 21), OH (Lampkin,
supra note 21), RI (McMaugh, supra preface endnote
1), TN (Devita, supra note 21), WA (Bowerman, supra
note 21), WV (Duell, supra note 21; Lambert, supra
note 21).

138. See cases cited in note 137, supra.

139. KY (Foster, supra note 24 (expert testimony on
battering and its effects held inadmissible as to
battered woman defendant because she was a
lesbian)), LA (Edwards, supra note 24 (holding
based on defendant's failure to plead not guilty or
not guilty by reason of insanity)), MI (Moseler,
supra note 24), MO (Martin, supra note 24), NJ
(McClain, supra note 6), NC (Clark, supra note 18).

140. CA (Day, supra note 8), GA (Clenney, supra
note 24 (note case dealt with post-arrest state of
mind issue)), KY (Brandenburg, supra note 24), MA
(Scott, supra note 22 (note this issue was the
basis for defendant's 1991 appeal, but was not
decided because defendant dropped her appeal as
well as her motion for a new trial in July 1993
when her sentence was reduced to the 22 months time
she had already served and she was placed on three
years probation)), MI (Moseler, supra note 24), OH
(Coulter, supra note 6), SC (Doe, supra note 8), WY
(Braley, supra note 23).

141. CA (Day, supra note 8; Romero, supra note 8),
CT (Battista, supra note 19), HI (Cababag, supra
note 3), IL (Server, supra note 8), NJ (Frost,
supra note 8), NY (Nicole V., supra note 3), OH
(Daws, supra text, page 2), PA (Kacsmar, supra note
8), UT (Hazel, supra text, page 7), VT (Verrinder,
supra note 19), WI (Slade, supra note 3), WY
(Frenzel, supra note 21).

142. CT (Freeney, supra note 5), KS (Hodges, supra
note 3), MT (Dannels, supra note 24), OR (Milbradt,
supra note 20), PA (Singh, supra note 22), WA
(Hanson, supra note 7).

143. KS (Cramer, supra note 8), ME (Anaya (1983),
supra note 21), NM (Swavola, supra note 21), NY
(Ciervo, supra note 3), OH (Daws, supra text, page
2; Higgs, supra note 21), TX (Hayward, supra note
21). Also, although it was not stated explicitly by
the court in another case, in effect, the
defendant's prior bad acts were used to rebut
expert testimony, IA (Jones, supra note 22).

144. MD (Banks, supra note 21), NY (Barrett, supra
note 21), WA (Kelly, supra note 4).

145. AL (Neelley, supra note 24), AK (Pabst, supra
note 22), FL (Jackson, supra note 21), IL (Smith,
supra note 21; Jackson, supra note 9), IN (Allen,
supra note 21), ME (Murchison, supra note 22), MN
(Merrill, supra note 18), OH (Lampkin, supra note
21), TX (Ortiz, supra note 9 (also holds expert
testimony may be used to rebut "battered woman
syndrome" as mitigating factor)), WA (Alaniz, supra
note 22). Note that, by statute, Washington also
allows judges to consider as mitigating factors in
the exercise of their discretion to impose a
sentence outside the standard range, that the
defendant committed crimes under duress or that the
defendant or defendant's children suffered physical
or sexual abuse by the deceased and the offense was
in response to the abuse (Wash. Rev. Code
section 9.94A.390(1)(a),(c),(h)).

146. MN (Loch, supra note 21), NC (Torres, supra
note 21).

147. AK (Brandon, supra note 18), CT (Borrelli,
supra note 3), HI (Cababag, supra note 3), IN
(Dausch, supra note 21), WI (Bednarz, supra note
3). There is also anecdotal evidence that the
expert testimony can be used to explain a battered
woman's first confessing to having committed a
crime, and then recanting once her batterer has
been incarcerated and she regards herself as being
"safe;" or alternatively, her first denying that
she had been assaulted by her batterer, and later
admitting that he is the one who had assaulted her
(conversation with Mary Ann Dutton, Ph.D. on
October 28, 1994). On the other hand, NCDBW has
limited information about a 1993 Washington State
Court of Appeals decision, affirming the murder
conviction of Imogene Farrell, despite the trial
court's exclusion of expert testimony on battering
to explain the defendant's having "covered" for her
abusive boyfriend who she asserted had actually
committed the murders of her father and another
person (The Equal Times, Summer 1993, p. 3
(newsletter of the Northwest Women's Law Center)).

148. OH (Dowd, supra note 6).

149. NH (Baker, supra note 19).

150. CT (Knock, supra note 3), MD (Kaliher, supra
note 22), MT (Houtchens, supra note 21).

151. ID (Curtis (1993), supra note 21; Curtis
(1994), supra note 21), LA (Laughlin, supra note
18). Also note that, although this issue was not
explicitly addressed by the New Jersey Superior
Court in Cusseaux v. Pickett, supra note 11, it can
reasonably be anticipated, based on its ruling that
battered woman syndrome states a civil cause of
action, that expert testimony (of which it clearly
recognized the admissibility in a self-defense
context) would be admissible in support of a
damages determination.   

152. AR (Thompson, supra note 20), DC (Ibn-Tamas
(1983), supra note 20), DE (Scott, supra note 107),
GA (Strong, supra note 21; Ledford, supra note 18),
HI (Miller, supra note 22), LA (Clayton, supra note
24), MA (Grimshaw (1992), supra note 20), MT
(Redcrow, supra note 21), NE (Jackson, supra note
21), NY (Powell, supra note 24 (no information
because proffer of expert testimony refused)), OH
(Engle, supra note 6 (the court did imply that
expert testimony was not relevant to a duress
defense)); Seymour, supra note 18), PA
(Commonwealth v. McFadden, 402 Pa. Super. 517, 587
A.2d 740 (1991)), RI (Ordway, supra note 18 (only
information is that it is permissible for the
adverse expert to testify)), TN (Pendergrast, supra
note 24; Aucoin, supra note 21), WI (Balke, supra
note 24).

153. Cal. Evid. Code section 1107(a).

154. "...[t]estimony of an expert witness
concerning the effects of such domestic abuse on
the beliefs, behavior and perception of the person
being abused shall be admissible as evidence"
(Okla. Stat. Ann. tit. 22, section 40.7).

155. Mass. Gen. Laws Ann. ch. 233, section 23E.

156. Cal. Evid. Code section 1107, Ga. Code Ann. section 16-3-
21(d)(2) (permits expert testimony "regarding the
condition of the [defendant's] mind at the time of
the offense, including those relevant facts and
circumstances relating to the family
violence...that are the bases of the expert's
opinion"), La. Code Evid. Ann. art. 404(A)(2), Md.
Cts. & Jud. Proc. Code Ann. section 10-916(b), Nev. Rev.
Stat. section 48.061(1), Ohio Rev. Code Ann. section 2901.06, Tex.
Penal Code section 19.06(a) and (b)(2).

157. Cal. Evid. Code section 1107, Mo. Ann. Stat. (Crimes
and Punishment) section 563.033.1, Nev. Rev. Stat.
section 48.061(2), Ohio Rev. Code Ann. section 2901.06, S.C. Code
Ann. section 17-23-170(A), Wyo. Stat. (Crimes and
Offenses) section 6-1-203(b). In a related vein, the South
Carolina statute also provides that the evidence is
admissible on the issue of whether the defendant
lawfully acted in defense of another, of necessity
or under duress, S.C. Code Ann. section 17-23-170(A).

158. Cal. Evid. Code section 1107, Ga. Code Ann. section 16-3-
21(d), Mass. Gen. Laws Ann. ch. 233, section 23E, Ohio
Rev. Code Ann. section 2901.06(B), Wyo. Stat. (Crimes and
Offenses) section 6-1-203(b).

159. See citations in preceding note.

160. Mass. Gen. Laws Ann. ch. 233, section 23E.

161. Mass. Gen. Laws Ann. ch. 233, section 23E, Mo. Ann.
Stat. (Crimes and Punishment) section 563.033, Ohio Rev.
Code Ann. section 2901.06(B), S.C. Code Ann. section 17-23-
170(A), Wyo. Stat. (Crimes and Offenses) section 6-1-
203(b).

162. Mass. Gen. Laws Ann. ch. 233, section 23E(b).

163. Ohio Rev. Code Ann. section 2945.392(B). Note that
California also permits expert testimony on the
emotional and mental effects of domestic violence
on the defendant's perceptions (Cal. Evid. Code
section 1107).

164. 10th Cir. (Dunn (1992), supra note 41), 9th
Cir. (Archer, supra note 37; July, supra note 40;
Homick, supra note 37; Sebresos, supra note 40),
8th Cir. (Whitetail, supra note 43), 6th Cir.
(Ware, supra text, page 2; Meeks, supra note 40
(note that the court impliedly made this finding)),
3rd Cir. (Santos, supra note 46), N.D.Ill. (Bell,
supra note 44), E.D.N.Y. (Gaviria, supra note 46),
D.Kan. (Dunn (1991), supra note 42), S.D.Ohio
(Tourlakis, supra note 37), N.D.Ala. (Sixty Acres
(1990), supra note 46), U.S. Tax Ct. (Toner, supra
note 46), S.D.Fla. (Ellis, supra note 42).

165. E.D.Pa. (Fennell, supra note 45).

166. 10th Cir. (Dunn (1992), supra note 41), 9th
Cir. (Gable, supra note 40; Archer, supra note 37;
Johnson, supra note 40; Homick, supra note 37), 3rd
Cir. (Santos, supra note 46), N.D.Ill. (Gregory,
supra note 45), S.D.Fla. (Ellis, supra note 42).
Note that one of these appeals courts (9th Cir.
(Sebresos)) and one of these district courts
(N.D.Ill. (Bell)) have also held to the contrary.

167. 5th Cir. (Gordon (1987), supra note 46),
W.D.La. (Gordon (1986), supra note 46).

168. 9th Cir. (Sebresos, supra note 40), 7th Cir.
(U.S. v. Mark Thomas, supra note 37 (There is some
question whether this code applies in this case.)),
N.D.Ill. (Bell, supra note 44).

169. 10th Cir. (Dunn (1992), supra note 41), 9th
Cir. (Gable, supra note 40; July, supra note 40;
Johnson, supra note 40), 8th Cir. (Whitetail, supra
note 43), 6th Cir. (Meeks, supra note 40 (implied
holding)), 3rd Cir. (Santos, supra note 46),
E.D.N.Y. (Gaviria, supra note 46), U.S. Tax Ct.
(Toner, supra note 46), W.D.La. (Gordon(1986),
supra note 46), E.D.Pa. (Fennell, supra note 45),
D.Hawaii (Wilson, supra note 79). 

170. 8th Cir. (Arcoren, supra note 41).

171. 10th Cir. (Dunn (1992), supra note 41), 9th
Cir. (July, supra note 40), 8th Cir. (Arcoren,
supra note 41; Whitetail, supra note 43), W.D.La.
(Gordon (1986), supra note 46), E.D.Pa. (Fennell,
supra note 45), D.Hawaii (Wilson, supra note 79).

172. S.D.N.Y. (Taylor, supra note 37).

173. 10th Cir. (Dunn (1992), supra note 41), 9th
Cir. (Johnson, supra note 40; Winters, supra note
40), 3rd Cir. (Santos, supra note 46), N.D.Ill.
(Bell, supra note 44), S.D.N.Y. (Taylor, supra note
37), D.Kan. (Dunn (1991), supra note 42), N.D.Ala.
(Sixty Acres (1990), supra note 46), S.D.Ohio
(Tourlakis, supra note 37), E.D.Pa. (Fennell, supra
note 45). Note that the 9th Circuit has also held
such testimony is not relevant to explain the
defendant's conduct, Sebresos, supra note 40.

174. 9th Cir. (Winters, supra note 40).

175. 8th Cir. (Arcoren, supra note 41).

176. 10th Cir. (Lumpkin, supra note 46), 8th Cir.
(Whitetail, supra note 43), 6th Cir. 
(Meeks, supra note 40 (implied holding)), S.D. Ohio
(Tourlakis, supra note 37).

177. E.D.Pa. (Fennell, supra note 45).

178. D.Kan. (Dunn (1991), supra note 42), S.D.Ohio
(Tourlakis, supra note 37).

179. S.D.Ohio (Tourlakis, supra note 37).

180. N.D.Ill. (Bell, supra note 44), S.D.N.Y.
(Taylor, supra note 37), E.D.Pa. (Fennell, supra
note 45).

181. 8th Cir. (Arcoren, supra note 41).

182. 8th Cir. (Whitetail, supra note 43), D.Hawaii,
(Wilson, supra note 79).

183. U.S. Tax Ct. (Toner, supra note 46), S.D.Ohio
(Tourlakis, supra note 37), W.D.La. (Gordon (1986),
supra note 46).

184. 9th Cir. (July, supra note 40), N.D.Ill.
(Bell, supra note 44), S.D.Fla. (Ellis, supra 
note 42).

185. 9th Cir. (Gable, supra note 40; Russell, supra
note 40; Johnson, supra note 40), 8th Cir.
(Whitetail, supra note 43), E.D.N.Y. (Gaviria,
supra note 46).

186. FL (Rhone, supra note 19; see also Hickson,
supra note 4, a subsequent decision by a higher
court, providing for an adverse examination with
limitations), MO (Landrum, supra note 18), MT
(Hess, supra note 3), NE (Doremus, supra note 18
(holding adverse examination appropriate where
state's expert testifies about an essential element
of the crime)), NH (Briand, supra note 20), NJ
(Myers, supra note 8), NY (Fratt, supra note 21
(found an adverse examination is triggered, with
limitations)), OH (Manning, supra note 18), OK
(Bechtel, supra note 3), TX (Ortiz, supra note 9 -- 
at sentencing). Also note that in OR (Bockorny,
supra note 21), although an adverse examination was
not triggered, the state presented rebuttal
testimony by an expert.

187. See Hennum, supra note 3. 

188. See Krage, supra note 19.

189. Mo. Ann. Stat. (Crimes and Punishment)
sections 563.033.2, 563.033.3.

190. Ohio Rev. Code Ann. section 2945.39(A) provides that
the court may order one or more, but not more than
three, such evaluations of the defendant's mental
condition at the time the offense was committed.

191. Ohio Rev. Code Ann. section 2945.39(A)(3).

192. 9th Cir. (July, supra note 40 (Note that the
court made this finding even though the defendant
did not present "battered woman syndrome" evidence
as a mental state defense)); 6th Cir. (Ware, supra
text, page 1 (cited by the court as a reason why
the defendant had agreed with her counsel that she
would not present her own expert testimony)).

193. N.D.Ill. (Bell, supra note 44 (holding that,
since mental state is irrelevant in a duress
defense and the defendant did not present a
diminished capacity defense, the government is not
entitled to compel a psychiatric examination of a
defendant who intends to present expert testimony
on battering and its effects)).

194. AK (Brandon, supra note 18; Haakanson, supra
note 19), CT (Freeney, supra note 5; Borrelli,
supra note 3; Battista, supra note 19), FL (Rhone,
supra note 19), GA (Pruitt, supra note 24;
Thompson, supra note 19), HI (Cababag, supra note
3), IL (Server, supra note 8), IN (Dausch, supra
note 21), KS (Clements, supra note 4), KY
(Brandenburg, supra note 24; Dyer, supra note 20),
MN (Borchardt, supra note 12; Merrill, supra note
18), NE (Doremus, supra note 18), NH (Baker, supra
note 19), NJ (Frost, supra note 8; J.Q., supra note
18; Walker, supra note 21), NY (Nicole V., supra
note 3; Taylor, supra note 18), OH (Dowd, supra
note 6; Roquemore, supra note 18; Pargeon, supra
note 6), OR (Milbradt, supra note 20), WA (Ciskie,
supra note 7), WI (Bednarz, supra note 3; Slade,
supra note 3), WY (Frenzel, supra note 21). 

195. CO (Morrison, supra note 21), CT (Knock, supra
note 3), ID (Curtis (1993), supra note 21; Curtis
(1994), supra note 21), LA (Laughlin, supra note
18), MD (Kaliher, supra note 22), MO (Hunziger,
supra note 21), MT (Houtchens, supra note 21), NJ
(Cusseaux, supra note 11), OH (Scheibert, supra
note 21), PA (Heck, supra note 22), SC (Doe, supra
note 8), VT (Blair, supra note 21).

196. FL (Hickson, supra note 4; Stiles, supra note
11), MN (Mick, supra note 11; Krage, supra note
19), MO (Landrum, supra note 18), NH (Briand, supra
note 20), NY (Glenn G., supra note 21; Anderson,
supra note 21; Fratt, supra note 21; Torres, supra
note 11), OH (Spinks, supra note 8), UT (Hazel,
supra text, page 7).

197. AK (Pabst, supra note 22; Charliaga, supra
note 22), AR (Green, supra note 24), DE (McBride,
supra note 22), FL (Soubielle, supra note 22), GA
(Chapman (1987), supra note 22), HI (Miller, supra
note 22), KS (Dunn (1992), supra note 22), ME
(Murchison, supra note 22), MD (Smith, supra note
22), MA (Scott, supra note 22), MI (Matthews, supra
note 22; Smith, supra note 22), MN (Tisland, supra
note 22; Vizenor, supra note 22), NH (Masters,
supra note 22), NY (Smith, supra note 22;
Brundidge, supra note 22; Pizarro, supra note 22;
Brown, supra note 22), OH (Flowers, supra note 22),
PA (Singh, supra note 22; Gatewood, supra note 22;
Forsythe, supra note 22), TX (King, supra note 22;
In The Interest Of, supra note 22), VA (Plantz,
supra note 22; Credle, supra note 22), WA (Alaniz,
supra note 22), WV (McClanahan, supra note 22).

198. AL (Hill, supra note 20; Haney, supra note 18;
Neelley, supra note 24), AR (Thompson, supra note
20), CA (Aris, supra note 3), CO (Yaklich, supra
note 21; Hare, supra note 21), DC (Ibn-Tamas
(1983), supra note 20), GA (Pugh, supra note 5;
Motes, supra note 8; Clenney, supra note 24;
Ledford, supra note 18; Mullis, supra note 24;
Strong, supra note 21; Norris, supra note 21), ID
(Griffiths, supra note 19), IL (Smith, supra note
21; Novy, supra note 21; Fleming, supra note 8;
Gindorf, supra note 21; Jackson, supra note 9;
White, supra note 24), IN (Fultz, supra note 20),
IA (Nunn, supra note 21), KS (Crawford, supra note
4; Cramer, supra note 8; Dunn (1988), supra note 5;
Meyer, supra note 19), KY (Foster, supra note 24;
Rose, supra note 19), LA (Clayton, supra note 24;
Moore, supra note 21; Necaise, supra note 24;
Burton, supra note 20), ME (Anaya (1983), supra
note 21), MD (Boyd, supra note 24), MA (Grimshaw
(1991), supra note 21; Grimshaw (1992), supra note
20; Lazarovich, supra note 20; Moore, supra note
20), MI (Moseler, supra note 24), MN (Loch, supra
note 21 (conviction on one charge -- solicitation
of child to engage in sexual conduct -- was
reversed, but conviction was affirmed in all other
respects)); Hennum, supra note 3), MS (Lentz, supra
note 20), MO (Anderson, supra note 24; Clay, supra
note 24; Martin, supra note 24), MT (Hess, supra
note 3; Redcrow, supra note 21; Dannels, supra note
24), NE (C.P., supra note 21; Jackson, supra note
21), NJ (McClain, supra note 6; Myers, supra note
8), NM (Swavola, supra note 21; Vigil, supra note
18), NY (Rollock, supra note 21; Powell, supra note
24), NC (Torres, supra note 21; Norman, supra note
21; Clark, supra note 18), OH (Engle, supra note 6;
Lundgren, supra note 6; Coulter, supra note 6;
Higgs, supra note 21; C. Redding, supra note 6; M.
Redding, supra note 6; Rice, supra note 21; Poling,
supra note 6; Manning, supra note 18; Lampkin,
supra note 21; Seymour, supra note 18), OK
(McDonald, supra note 21), OR (Bockorny, supra note
21; Moore, supra note 20), SC (Robinson, supra note
4), SD (Burtzlaff, supra note 19), TN (Pendergrast,
supra note 24; Devita, supra note 21; Aucoin, supra
note 21; Leaphart, supra note 21), TX (Hayward,
supra note 21), VT (Verrinder, supra note 19), VA
(Wilmoth, supra note 21; Pancoast, supra note 21),
WA (Riker, supra note 7; Hutcheson, supra note 21;
Hanson, supra note 7; Walker, supra note 21;
Bowerman, supra note 21), WV (Steele, supra note
21), WI (Balke, supra note 24; Landis, supra note
19), WY (Griffin, supra note 21; Jahnke, supra note
25; Buhrle, supra note 25).

199. Maguigan describes her methodology starting at
p. 479 of her article. Notably, she started with
more than 400 opinions, but excluded over 130 cases
that fell into one of several categories: those in
which the discussion did not include a history of
abuse of the defendant by the deceased; those in
which the defendant was male; those in which the
defendant and deceased were not involved in an
intimate heterosexual relationship; those in which
the charge was other than homicide; those in which
no self-defense claim was raised; those that did
not address trial or pre-trial errors; and trial
level opinions. By contrast, our overall analysis
included all these categories, while our analysis
of dispositions on appeal excluded only trial level
opinions, appellate decisions on pre-trial issues,
and cases in which the defendant was male.

200. It is possible that there were additional
expert testimony cases among the other 135 or so
cases in Maguigan's database that were not
reflected in her table.

201. Of the 80 battered women defendants/expert
testimony-related cases included in Maguigan's
total database, the conviction and/or sentence was
affirmed on appeal in 42, according to the case
disposition codes we assigned to those cases.

202. AL (Hill, supra note 20; Haney, supra note
18), AR (Thompson, supra note 20), CA (Aris, supra
note 3), CO (Yaklich, supra note 21; Hare, supra
note 21), DC (Ibn-Tamas (1983), supra note 20), GA
(Pugh, supra note 5; Motes, supra note 8; Ledford,
supra note 18; Strong, supra note 21; Norris, supra
note 21), ID (Griffiths, supra note 19), IL (Smith,
supra note 21; Novy, supra note 21; Fleming, supra
note 8; Gindorf, supra note 21), IN (Fultz, supra
note 20), IA (Nunn, supra note 21), KS (Crawford,
supra note 4; Cramer, supra note 8; Meyer, supra
note 19), KY (Rose, supra note 19), LA (Moore,
supra note 21; Burton, supra note 20), ME (Anaya
(1981), supra note 3), MA (Grimshaw (1991), supra
note 21; Grimshaw (1992), supra note 20,
Lazarovich, supra note 20; Moore, supra note 20),
MN (Loch, supra note 21; Hennum, supra note 3), MS
(Lentz, supra note 20), MT (Hess, supra note 3;
Redcrow, supra note 21), NE (C.P., supra note 21;
Jackson, supra note 21), NJ (Myers, supra note 8),
NM (Swavola, supra note 21; Vigil, supra note 18),
NY (Rollock, supra note 21), NC (Torres, supra note
21; Norman, supra note 21; Clark, supra note 18),
OH (Higgs, supra note 21; Rice, supra note 21;
Manning, supra note 18; Lampkin, supra note 21;
Seymour, supra note 18), OK (McDonald, supra note
21), OR (Bockorny, supra note 21; Moore, supra note
20), SC (Robinson, supra note 4), SD (Burtzlaff,
supra note 19), TN (Devita, supra note 21; Aucoin,
supra note 21; Leaphart, supra note 21), TX
(Hayward, supra note 21), VT (Verrinder, supra note
19), VA (Wilmoth, supra note 21; Pancoast, supra
note 21), WA (Hutcheson, supra note 21; Hanson,
supra note 7; Walker, supra note 21; Bowerman,
supra note 21), WV (Steele, supra note 21), WI
(Landis, supra note 19), WY (Griffin, supra note
21).

203. It is certainly possible that expert testimony
was used in additional cases, but may not have
given rise to an issue on appeal. Thus, it may well
be that the 71 percent calculation is too low.

204. FL (Rogers, supra note 8; Terry, supra note
3), GA (Smith, supra note 3), IL (Minnis, supra
note 3), ME (Anaya (1981), supra note 3), MO
(Williams, supra note 20), NJ (Kelly, supra note
3), OH (Koss, supra note 3; Daws, supra text, page
2), OK (Bechtel, supra note 3), PA (Kacsmar, supra
note 8; Stonehouse, supra note 4; Tyson, supra note
18), SC (Wilkins, supra note 8; Hill, supra note
3), TX (Fielder, supra note 3), WA (Allery, supra
note 3).

205. KY (Craig, supra note 19), NM (Gallegos, supra
note 3).

206. CA (Romero, supra note 8; Day, supra note 8),
DE (Scott, supra note 107 (There is some question
whether this code applies to this case.)), TN
(Zimmerman, supra note 21).

207. AZ (Denny, supra note 21), FL (Hawthorne,
supra note 20), GA (Chapman (1988), supra note 4),
IA (Jones, supra note 22), KS (Hodges, supra note
3; Hundley, supra note 4), KY (Ford, supra note
21), LA (Edwards, supra note 24), MD (Banks, supra
note 21), MA (Rodriguez, supra note 3), NV (Larson,
supra note 21), NJ (McGuigen, supra note 8), NM
(Branchal, supra note 8), NY (Barrett, supra note
21; Ciervo, supra note 3; Emick, supra note 3), ND
(Leidholm, supra note 21), PA (Dillon, supra note
21), RI (Ordway, supra note 18; McMaugh, supra
preface endnote 1), TN (Furlough, supra note 21),
TX (Pierini, supra note 21), WA (Kelly, supra note
4), WV (Betty J.W., supra note 21; Duell, supra
note 21; Lambert, supra note 21), WI (Felton, supra
note 21).

208. IN (Allen, supra note 21), MI (Wilson, supra
note 19), NC (Heidmous, supra note 21), PA
(McFadden, supra note 146), TX (Ortiz, supra note
9), WA (Janes, supra note 4).

209. DC (Ibn-Tamas (1979), supra note 20).

210. Results are reported in this table for 79 of
the 80 cases. The other case involved an appeal by
the state of an acquittal of a battered woman
defendant.

211. Number and percentage are estimated so that
affirmances and reversals will total to 100 percent
because the number of cases remanded for new trial
is unknown.

212. Maguigan's base was 270 cases; if 40 percent
were reversed, then 108 cases were reversals. She
reported that 16 percent of these represented
expert testimony-related errors; thus, 16 percent
of 108 equals 17 cases.

213. See cases cited supra at note 198.

214. FL (Rogers, supra note 8), MO (Williams, supra
note 20), OH (Koss, supra note 3; Daws, supra text,
page 2), OK (Bechtel, supra note 3), PA (Kacsmar,
supra note 8; Tyson, supra note 18), SC (Wilkins,
supra note 8). 

215. 9th Cir. (Winters, supra note 40), 8th Cir.
(Arcoren, supra note 41).

216. S.D.N.Y. (Taylor, supra note 37), S.D.Fla.
(Ellis, supra note 42). 

217. U.S. Tax Ct. (Toner, supra note 46), N.D.Ill.
(Gregory, supra note 45), W.D.La. 
(Gordon (1986), supra note 46), D.Hawaii (Wilson,
supra note 79).

218. E.D.N.Y. (Gaviria, supra note 46).

219. 11th Cir. (Sixty Acres (1991), supra note 46),
10th Cir. (Lumpkin, supra note 46 (habeas corpus
denied)) 9th Cir. (Gable, supra note 40; Russell,
supra note 40; Archer, supra note 37; July, supra
note 40; Johnson, supra note 40 (also remanded on
other grounds); Homick, supra note 37), 8th Cir.
(Whitetail, supra note 43 (also remanded on other
grounds)), 7th Cir. (U.S. v. Mark Thomas, supra
note 37), 6th Cir. (Ware, supra text, page 2
(habeas corpus denied); Meeks, supra note 40
(habeas corpus denied); Thomas v. Arn, supra note
37 (habeas corpus denied)), 5th Cir. (Gordon
(1987), supra note 46), 3rd Cir. (Santos, supra
46), S.D.Ohio (Tourlakis, supra note 37 (habeas
corpus denied)), E.D.Pa. (Fennell, supra note 45
(habeas corpus denied)). 

220. 10th Cir. (Dunn (1992), supra note 41), D.Kan.
(Dunn (1991), supra note 42).

221. 9th Cir. (Sebresos, supra note 40), N.D.Ala.
(Sixty Acres (1990), supra note 46).

------------------------------ 

Impact of Evidence Concerning Battering and Its
Effects in Criminal Trials Involving Battered Women

Prepared by 

Mary Ann Dutton, Ph.D.
Professorial Lecturer of Law
National Law Center
The George Washington University

------------------------------

Contents

Introduction

Background

Impact of Evidence Concerning Battering 
and Its Effects
 Direct Effects
  Implications for the deliberation process
  Implications for the disposition of cases

 Indirect Effects
  Implications for the judiciary
  Implications for legal counsel
  Implications for other legal matters
  Implications for resource availability
  Implications for the community

Conclusion

Notes

------------------------------

Introduction

The Violent Crime Control and Law Enforcement Act
of 1994, Section 40507 of Title IV, the Violence
Against Women Act requires a report on the
"assessment by State, tribal, and Federal judges,
prosecutor, and defense attorneys of the effects
that evidence of battered woman syndrome may have
in criminal trials." This report is a response to
that legislative requirement and it provides a
framework for two companion documents also
developed in response to the same Section of the
Violence Against Women Act: (a) Trend Analysis:
Expert Testimony on Battering and its Effects in
Criminal Cases1 and (b) Validity of "Battered Woman
Syndrome" in Criminal Cases.2 A related report,
Expert Testimony in Criminal Cases Involving
Battered Women: A Resource Monograph,3 developed by
the National Association of Women Judges, provides
a discussion of key issues in these cases.

The present document presents a discussion of the
impact that evidence of battering and its effects
had on criminal trials.4 This report is based
largely on the results of a focus group conducted
over three days consisting of federal and state
court judges, prosecutors, defense attorneys,
expert witnesses, and advocates.5 See the Overview
for further elaboration of this process. The
introduction of evidence on battering and its
effects in criminal cases has been to increase
recognition in the courtroom of the problem of
domestic violence. The purpose of this report is to
explore both the direct and indirect effects of the
use of this testimony.

------------------------------

Background

When evidence of battering and its effects is
introduced in a criminal trial, it may be offered
both through fact witness and expert witness
testimony. The battered woman and other fact
witnesses (e.g., family, neighbors, coworkers,
police officers, physicians, therapists) often
provide testimony as to various aspects of the
battered woman's experience through their
descriptions of violent acts directed toward the
battered woman, resultant injuries, and the
battered woman's responses to the violent and
abusive behavior. 

In contrast, an expert witness can offer an opinion
about the battered woman's experience, based on an
analysis of relevant information. The Rule 702 of
the congressionally-enacted Federal Rules of
Evidence states the following:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of an
opinion or otherwise.

Expert testimony has been introduced in criminal
cases involving battered women since the late
1970s.6 A 1977 Supreme Court of Washington
decision, State v. Wanrow,7 ruled in a self-defense
case involving a woman defendant that she was
"entitled to have the jury consider her actions in
the light of her own perceptions of the
situation."8 The lawyers successfully argued that
the jury instructions offered at trial did not
consider the woman's perspective, thereby failing
to correctly apply the existing standard of self-
defense: "requiring the jury to consider the
defendant's action `seeing what (s)he sees and
knowing what (s)he knows,' taking into account all
the circumstances as she knew them at the time."9
Thus, the original intent of expert testimony in
criminal cases involving battered women was to
explain "the common experiences of, and the impact
of repeated abuse on, battered women."10 

Expert testimony was developed to show the trier of
fact the context of a battered woman's actions.11
This type of expert testimony has been called
social framework testimony: "employing social
science research . . . to provide a social and
psychological context in which the trier can
understand and evaluate claims about the ultimate
fact."12 Based on a recent analysis, "expert
testimony on battering and its effects is
admissible, at least to some degree, or has been
admitted (without any discussion of the standards
for admissibility) in every state."13 See Trend
Analysis: Expert Testimony on Battering and its
Effects in Criminal Cases14 for a review of case
law and state statutes regarding admissibility.

The testimony of an expert witness is offered as
either general or case-specific testimony. General
testimony refers to that which is known concerning
battering and its effects based on an understanding
of the scientific and specialized15 knowledge in
the field. In this type of testimony, there is no
attempt to form specific opinions or conclusions
related to a particular case. Alternately, case-
specific testimony offers an analysis about a
particular battered woman and the context of her
life. Case-specific testimony places the unique
facts of a particular case into the framework of
more general knowledge. In this type of testimony,
in which opinions and conclusions about a
particular battered woman are offered, a face-to-
face evaluation of the battered woman is required.
In addition, other information is usually relied
upon for the evaluation, including a review of
relevant documents and information obtained from
people other than the battered woman. 

Expert testimony on battering and its effects can
be introduced in criminal cases involving battered
women by both defense counsels and prosecuting
attorneys. Expert testimony is used by defense
counsels in various types of criminal defenses such
as self-defense, duress, and insanity. This
testimony may also be used by the defense for
purposes of mitigation during the sentencing phases
of a trial. Prosecutors use expert testimony to
explain the battered victim's recantation or lack
of cooperation with the prosecution of a batterer.
Further, both prosecution and defense use expert
witness testimony to provide explanations for what
may be misconceptions about battered women,
battering, and its effects.16 See the companion
report, Validity of the Use of Medical and
Psychological Expert Testimony in Criminal Cases
Involving Battered Women,17 for an extended
discussion of the content of expert witness
testimony.

------------------------------

Impact of Evidence Concerning Battering and Its
Effects

In this report, evidence concerning battering and
its effects in criminal trials involving battered
women is examined for both its direct and indirect
effects. Direct effects examined in this report are
the implications for (a) the deliberation process
and (b) the disposition of cases. Indirect effects
include implications for (a) the judiciary, (b)
legal counsel, (c) other legal matters, (d)
resource availability, and (e) the larger
community.

Direct Effects

Implications for the deliberation process

This section addresses the implications for the
deliberation process by the factfinder of
introducing evidence concerning battering and its
effects. The major purpose of such evidence is to
assist the triers of fact in their deliberations
concerning the ultimate issues. The ultimate issues
are the legal elements explicated in the jury
instructions that must be proven in the case.18
Another purpose of introducing evidence concerning
battering and its effects is to dispel common myths
and misunderstanding concerning domestic violence,
including stereotypes of both battered women and of
batterers, that may interfere with the factfinders'
ability to consider these and other issues in the
case.19 See the Trend Analysis: Expert Testimony on
Battering and its Effects in Criminal Cases20 for
an extensive review of the scope of expert
testimony defined by case law and state statutes.

There was clear and strong agreement among judges,
defense attorneys, prosecutors, expert witnesses,
and advocates that expert testimony concerning
battering and its effects can assist the factfinder
in more effectively evaluating the evidence in a
criminal case involving a battered woman. However,
there was also consensus that the concept "battered
woman syndrome" is not adequate to portray the
necessary information to assist the factfinder "to
understand the evidence or to determine a fact in
issue."21 The dilemma that results is that, on the
one hand, there is historical and/or legal
precedent for "battered woman syndrome" as a term
to refer to such testimony and, on the other hand,
"battered woman syndrome" is not adequate as a
construct to incorporate the breadth of knowledge
about battering and its effects that may be
relevant in these cases. 

Historically, there is precedent for referring to
expert testimony in cases involving battered women
as "battered woman syndrome" testimony. The term
has been used to refer both to the dynamics of a
battering relationship and to the various effects
of battering on victims.22 There is the perception
that "battered woman syndrome" is a condition for
which distinct criteria exist. Such a perception is
reflected in the question, "Does she suffer from
the "battered woman syndrome?". The courts have
come to recognize the term as familiar and some
states have incorporated the language of "battered
woman syndrome" or its variants, such as "battered
spouse syndrome," in laws codified to govern the
admissibility of such testimony. See Trend
Analysis: Expert Testimony on Battering and its
Effects in Criminal Cases23 for a complete review
of state statutes governing admissibility of expert
testimony concerning battering and its effects.
Therefore, precedent would support continuing to
refer to such testimony using the term "battered
woman syndrome." 

However, the consensus among participants was that
the concept "battered woman syndrome" is inadequate
to convey the information that is available for the
purpose either to assist the factfinder in
understanding the evidence or to determine a fact
in issue. As stated earlier, "battered woman
syndrome" has been used to refer to both the
dynamics of battering and to the psychological
effects of battering. As it has been used in the
courtroom, the term is imprecise and, thus,
confusing. The questions relevant to battering and
its effects that may be raised during expert
testimony are many; they do not lend themselves to
characterization by a single construct. Thus,
"battered woman syndrome" was thought by the focus
group to be both too ambiguous and too narrow. The
term does not incorporate the breadth of available
knowledge concerning battering and its effects that
may be relevant in a criminal case involving a
battered woman. There is considerable scientific
and scholarly knowledge that supports this
consensus. See Validity of the Use of Medical and
Psychological Expert Testimony in Criminal Cases
Involving Battered Women24 for a critique of
"battered woman syndrome." 

To elaborate, a major concern of participants in
the focus group is the use of "battered woman
syndrome," as a specific checklist of battered
woman characteristics, to establish either that one
is a battered woman or that one "qualifies" for
expert testimony. Such an approach excludes
battered women who do not demonstrate a specified
pattern of effects, thus creating a stereotype of
the "real" or the "worthy" battered woman. There is
no basis to suggest that only particular
psychological effects of violence are relevant in
criminal cases involving battered women.

The effects of violence on battered women, like
trauma victims generally, vary based on
characteristics of the violence (e.g., type,
severity, chronicity, patterning), of the recovery
environment (e.g., socioeconomic conditions, social
support, community response), and of the individual
(e.g., prior history of victimization, coping
style).25 Thus, there is no single effect or set of
effects that characterize all battered women; there
is a range of effects demonstrated in the
literature characteristic of trauma victims,
including battered women. For example, given a
particular level of violence, one battered woman
may demonstrate resilience to the negative effects
of violence due, in part, to her greater access to
social support and economic resources when
responding to the violence and abuse. Assuming the
same level of violence, another woman may
experience debilitating effects due, partially, to
the cumulative effects of victimization based on a
lifetime of physical and sexual assault during
childhood and adulthood. Alcohol or drug use as a
strategy for coping might also contribute to the
negative effects of violence in some cases. Thus,
expert testimony concerning the effects of violence
on a battered woman, and the factors that influence
those effects, may be useful to the triers of fact
for considering the issues in the case. Such
testimony that derives from the body of scientific
knowledge is more useful to the factfinder than
dated or stereotypic notions of battered women as
passive or helpless.

Thus, there is a growing body of knowledge related
to battering and its effects that may be relevant
to a particular criminal case involving a battered
woman and useful to the triers of fact in the
deliberation process. This knowledge base has
developed greatly since the early introduction of
"battered woman syndrome" as the rubric under which
expert testimony is offered. The consensus of the
focus group was that expert testimony is an
important vehicle for providing the factfinder with
access to such relevant information. Therefore, the
introduction of expert testimony in this area has
created the demand that developments in knowledge
(e.g., new theories, empirical findings,
observations in applied settings) be incorporated
in expert witness testimony concerning evidence of
battering and its effects.

A second major concern raised by the focus group
was the extent to which the term "battered woman
syndrome" signals disorder, pathology, or a
clinical condition. Although battered women may
experience a number of clinical symptoms or
diagnoses associated with their being victims of
violence, these do not constitute a legal defense
per se.26 A battered woman's reasonable belief that
an intimate partner was going to kill her and that
immediate action was necessary to prevent it can
most often be explained by inductive reasoning
based on the battered woman's repeated experiences
of abuse.27 Because of such violence, it can be
explained that the battered woman has learned to
detect behaviors that signal a beating is
inevitable. However, such a perception does not
require the notion of a syndrome or other
pathological condition. Only on some occasions is
posttraumatic stress disorder relevant to this
explanation.28 Thus, for these reasons the focus
group concluded that the term "battered woman
syndrome" is not only inadequate, but can
potentially mislead the factfinder in consideration
of a criminal matter involving a battered woman.

To summarize, the panel concluded that evidence
about battering and its effects was relevant and
important in criminal cases involving battered
women to assist the triers of fact in their
deliberation of the issues. There was consensus
that the knowledge base or experience upon which
expert testimony is based must reflect the
diversity of battered women's experience in order
for expert testimony concerning battering and its
effects to best assist the factfinder in the case.
Second, the panel concluded that the notion of a
syndrome, although descriptive of some battered
women, does not represent the recognized variation
in battered women's experience nor the corpus of
scientific knowledge in the field. Therefore,
"battered woman syndrome" is inadequate as a term
to characterize such testimony. As an alternative,
reference to expert testimony concerning battering
and its effects allows for the introduction of
relevant scientific and specialized knowledge
across various types of criminal cases involving
battered women. Of course, opinions or conclusions
offered by an expert witness qualified due to
"knowledge, skill, experience, training, or
education"29 must necessarily be derived from a
foundation of "scientific, technical, or other
specialized knowledge"30 to serve the intended
purpose: to "assist the trier of fact to understand
the evidence or to determine a fact in issue."31
See Validity of the Use of Medical and
Psychological Expert Testimony in Criminal Cases
Involving Battered Women32 for a review of the
professional literature that supports the use of
expert testimony in these cases.

Implications for the disposition of cases

The effect of evidence concerning battering and its
effects in criminal cases involving battered women
can also be examined in terms of the disposition of
cases. However, at the trial level, there are no
available data summarizing the disposition of cases
involving a battered woman either as defendant or
as victim based on the introduction of evidence
concerning battering and its effects, whether
through the use of expert or fact witness
testimony. This may be due, in part, to the
difficulty in tracking cases at the trial court
level in which domestic violence issues are raised.

However, the panel discussed factors that may
contribute to a particular disposition in these
cases. First is the issue of whether expert
testimony presents an understanding of the battered
woman within the social context of the battering
relationship and the social problem of domestic
violence more generally. A second factor thought to
influence case disposition was the attorney's
understanding of domestic violence and his or her
skill in best utilizing an expert witness. It was
thought that expert witnesses are often
underutilized due to the attorney's inexperience in
this area. Related to this issue is the extent to
which an attorney can bridge the link for the
factfinder between this expert witness' testimony
and the specific issues in the case, thus making
explicit the relevancy of the testimony. Finally, a
third factor thought to influence the outcome of
the case relates to qualities of the expert
witness. Specifically, the expert should understand
the phenomenology of battered women's experience
through direct contact with battered women --
rather than through academic endeavors alone.

Although a summary of case dispositions on a trial
level is not available, case dispositions based on
appellate decisions in criminal cases involving
battered women defendants have been examined. A
review of state court cases reported in the Trend
Analysis: Expert Testimony on Battering and its
Effects in Criminal Cases,33 found that convictions
of battered women were reversed in 32 percent of
cases,34 of which 45 percent of these reversals
were due to erroneous exclusion of, limitation of,
or failure of counsel to present expert testimony
on battering and its effects. Further, the Trend
Analysis found that 63 percent of
conviction/sentences were affirmed on appeal by
either intermediate or high courts regarding
battered woman defendants. Based on the Trend
Analysis, expert testimony was found to have been
admitted or found admissible in 71 percent of cases
that affirmed convictions or sentences. 

These findings suggest that even with the
introduction of expert witness testimony in cases
involving a battered woman defendant, most
convicted cases are affirmed on appeal. What can be
concluded from the available data from the Trend
Analysis is that "contrary to popular
misconceptions reflected in some media coverage of
this issue -- the defense's use of or the court's
awareness about expert testimony on battering and
its effects in no way equates to acquittal on the
criminal charges lodged against a battered woman
defendant."35 See Trend Analysis: Expert Testimony
on Battering and its Effects in Criminal Cases36
for a comprehensive review of case dispositions on
appeal in both state and federal cases to reach a
conclusion about the effect of the use of expert
testimony in criminal cases involving battered
women. 

Indirect Effects

Besides the direct impact, several indirect effects
of evidence concerning battering and its effects
were identified. While the specific impact of these
indirect effects may be more difficult to determine
in a particular case, their influence was,
nevertheless, considered.

Implications for the judiciary

The introduction of expert testimony in criminal
cases involving battered women has had numerous
implications for the judges who serve in these
cases. The United States Attorney General's Task
Force on Family Violence, in its final report
states,

Judges are the ultimate legal authority in the
criminal justice system. If they fail to handle
family violence cases with the appropriate judicial
concern, the crime is trivialized and the victim
receives no real protection or justice.37

Accordingly, it is imperative that judges who
handle cases involving domestic violence have a
basic understanding of battering and its effects.
Without some familiarity with such information, the
trial court judge may fail to determine the
relevancy of expert witness testimony to the issues
at hand, a factor necessary for ruling on
admissibility and other matters. Even where
admissibility of such expert testimony is already
established,38 the judge is in a position to rule
on issues such as jury instructions and scope of
expert testimony allowed before the triers of fact.
The "judge sets the tone in the courtroom, and it
is the judge who makes the most critical decisions
affecting the lives of the victims, the
perpetrators, and the children."39 It follows that
one impact of the introduction of evidence on
battering and its effects in the courtroom has been
on the enterprise of judicial education.

Determining the validity of expert testimony
according to the criteria set forth in Daubert v.
Merrill Dow Pharmaceuticals, Inc.40 places an
increased burden on the trial court judge. As
discussed in Daubert, validity must also consider
the "fit" for the purpose used. Thus, expert
testimony that may have been determined to be valid
in one case may not be when offered for a somewhat
different purpose or in a different set of
circumstances in another case. The impact for the
trial court judge is one that requires competence
in understanding validity of knowledge, based on
both scientific41 and nonscientific evidence.42
While there are standard principles of scientific
validity, for various types of scientific
methodology (e.g., experimental design,
correlational, factor analysis, descriptive, or
qualitative), the evaluation of validity differs
accordingly. Therefore, a general understanding of
the scientific methods used in domestic violence
research is useful for the trial court judge to
determine validity of scientific evidence in these
cases.

Thus, for reasons cited, judicial education
concerning domestic violence has become more in
demand. One type of effort has been directed at the
development of judicial training curricula and
other materials in the area of domestic violence.
The State Justice Institute has funded the
development of three judicial curricula: Family
Violence: Effective Judicial Intervention, prepared
by the National Association of Women Judges, and
Domestic Violence: The Crucial Role of the Judge in
Criminal Court Cases: A National Model for Judicial
Education, and Domestic Violence in Civil Court
Cases, both prepared by The Family Violence
Prevention Fund. These and other curricula have
been applied in judicial training across the
country. In addition, The State Justice Institute
has funded numerous curriculum-adaptation projects
related to domestic violence, adapting a general
curriculum to state-specific case law, statutes,
and criminal codes of evidence.

On another front, the National Judicial College has
made a commitment to meet the needs of the
judiciary to understand and deal with the pressing
issues related to domestic violence.43 Among their
course offerings related to domestic violence, The
National Judicial College annually offers a week-
long course focused solely on the topic of domestic
violence. In addition, The Family Violence Project,
a program of the National Council of Juvenile and
Family Court Judges through the Conrad N. Hilton
Foundation Model Code Project, provided training on
domestic violence to 555 legislators, judges, and
other professionals in the six-month period between
July and December, 1995. The American Bar
Association Judicial Administration Division has
sponsored judicial training through the National
Judicial College and through their own seminar
series for appellate judges. Both the 1994 and 1995
Annual Meetings of the American Bar Association
offered educational programs on the topic of
domestic violence available for judges and lawyers.
There have been many other national, state, and
local training conferences specifically geared to
the issues of domestic violence for judges at all
levels of the court.

In summary, introduction of evidence concerning
battering and its effects has increased the demand
for judicial education on this topic. An additional
burden is placed on trial court judges, based on
the ruling in the Daubert decision, to "ensure that
any and all scientific testimony or evidence
admitted is not only relevant, but reliable"44
which requires "a valid scientific connection to
the pertinent inquiry as a precondition to
admissibility."45 Taken together, these factors
point to the need for judges to be well versed in
both the subject matter of domestic violence as
well as the methods of scientific inquiry related
to it.

Implications for legal counsel

There are also important implications for both
defense and prosecuting attorneys for the
introduction of evidence concerning battering and
its effects. The focus group identified the
importance of attorneys recognizing the need for
knowledge related to battering and the effects it
has on victims to competently work on these cases.
Without this competence, both defense attorneys and
prosecutors rely on the same misconceptions and
misunderstandings about domestic violence as does
the lay public. Without an adequate understanding
of the dynamics of domestic violence, and the ways
in which this experience can impact on victims,
lawyers are ill-equipped to recognize the relevance
of this type of evidence where it exists. Where
lawyers do understand the relevance of this
information to the issues in the case, they can
introduce appropriate evidence, whether through the
battered victim, other witnesses, or an expert
witness.

Another implication of the introduction of such
evidence in self-defense cases, historically, has
been the recognition of the relevance of similar
evidence in other criminal cases. One type of non-
self-defense case in which expert witness testimony
concerning battering and its effects has been
introduced is when a battered woman is charged with
a crime to which she asserts as a defense that she
engaged in the criminal acts under duress or
coercion by her batterer. The other type of case is
one in which the battered woman committed a crime
against a third party, not the batterer, but did
not assert that she did so under duress. See Trend
Analysis: Expert Testimony on Battering and its
Effects in Criminal Cases46 for a review of cases
in which expert testimony has been introduced in
non-self-defense criminal cases. 

There is another implication that the introduction
of domestic violence-related expert testimony has
held for prosecuting attorneys. Prosecutors rely on
such testimony in a case against the batterer when
the battered woman, who is a victim/witness in the
case, has recanted previous testimony, is unwilling
to cooperate with the prosecution, or has engaged
in behavior that the factfinder may find puzzling
regarding the facts of the case.47 See Trend
Analysis: Expert Testimony on Battering and its
Effects in Criminal Cases48 for a review of case
law and state statutes allowing the introduction of
expert testimony concerning battering and its
effects by the prosecution. Thus, some purposes for
which prosecutors and defense attorneys use the
evidence in criminal cases are quite similar.

An important implication of evidence of battering
and its effects introduced in criminal trials for
prosecuting attorneys has been greater attention to
these issues at the charging stage, sometimes
involving the grand jury. In some cases,
prosecutors use such evidence to influence their
decisions about whether to bring charges in a given
case and at what level. Under some circumstances,
this evidence is presented to a grand jury to
assist them in their decisions about returning an
indictment in a criminal case.49

The demand for increased understanding of domestic
violence has resulted in greater training
opportunities for lawyers working these cases. The
National College of District Attorneys offered
their Fifth Annual National Conference on Domestic
Violence in 1995. The American Bar Association
Section of Criminal Justice offered a National
Institute, "Defending Battered Women in Criminal
Cases" in 1992 and 1993. Other national, state, and
local opportunities for legal education have been
created in response to the demand.

Another means by which an individual attorney can
gain a better understanding of the relevance of
domestic violence in a particular case is through
consultation with an expert witness. Thus, another
implication of the introduction of such testimony
is that attorneys use experts not only to provide
testimony but also to consult about issues of
domestic violence in their cases. The consultants
may be shelter workers, battered woman advocates,
counselors, psychologists, psychiatrists, or social
workers. 

Implications for other legal matters

The introduction of evidence of battering and its
effects in criminal trials has preceded the use of
such testimony in most other contexts.
Nevertheless, such evidence has been introduced in
various types of civil cases, including dissolution
of marriage, custody, civil protection orders, tort
actions, and contract cases. In these, as in
criminal cases, the evidence is offered for the
purpose of assisting the factfinder, the jury or a
judge, in consideration of the issues in the case. 

Further, evidence of battering and its effects has
been relied upon to evaluate clemency petitions.
Florida Governor Lawton Chiles established
interdisciplinary panels of experts to review
evidence related to domestic violence and to
provide relevant information to the Governor and to
the Parole Board for their determination of
clemency petitions by alleged battered victims.50
Thus, the impact of evidence concerning battering
and its effects in criminal cases has been
associated with the recognition that similar
evidence can be useful in matters other than
criminal legal cases. 

Implications for resource availability

Increased efforts to introduce evidence of
battering and its effects have created a greater
demand for resources needed in order for expert
witnesses to consult with attorneys and to testify
in these cases. The focus group expressed concern
for the problems that result from the lack of
access to expert witnesses. This lack of access
stems from two major sources. First, the use of
expert witnesses requires financial resources.
Case-specific expert witness testimony requires a
comprehensive assessment, including a face-to-face
evaluation with the battered woman. Time required
for reading and integrating other documents in the
case, trial preparation, consultation with an
attorney, and actual trial testimony can be
extensive. Even general expert testimony requires
several hours in consultation with the attorney to
determine the specific information relevant to the
case at hand and to prepare for testimony.
Therefore, lack of funds can present a significant
problem in a case where expert testimony may be
useful, but in which there is no source of funds to
pay for an expert's time. Of course, some experts
contribute a portion of their time pro bono, but
that is not a sufficient solution to the problem,
nor can it be routinely expected.

A second issue associated with the greater demand
for the availability of expert witnesses is the
reluctance of some judges to rule that testimony
from a nonprofessional is admissible as expert
witness testimony. Rule 702 of the Federal Rules
state that an expert witness is qualified by reason
of "knowledge, skill, experience, training, or
education." Thus, a shelter worker, police officer,
trauma technician, or hotline worker, for example,
may qualify as an expert witness based on her or
his extensive experience working with battered
women, and thus could testify generally about their
observations and knowledge of battered women's
experiences. While such an expert witness would not
be qualified to form a professional opinion of an
individual battered woman, it is not always
necessary to provide such evidence. A final note:
Expertise based on experience working with battered
women was considered by the focus group to be
essential, regardless of the expert's other
qualifications. 

Thus, the increased applicability of evidence
related to battering and its effects has created a
need for increased resources to respond to the need
for expert witness testimony in various legal
matters. The need exists both in terms of financial
resources for experts and in terms of admissibility
of expert witness testimony from non-credentialed
persons experienced with domestic violence.

Implications for the community

The impact of introduction of evidence concerning
battering and its effects in the courts has been
felt in the community at large. Legislatures have
modified statutes and criminal codes in response to
the impact of such evidence in the criminal
process. See Trend Analysis: Expert Testimony on
Battering and its Effects in Criminal Cases51 for a
review of state statutes and criminal codes related
to admissibility, the showing necessary to
introduce expert testimony, type of cases in which
expert testimony is admitted, scope and relevance
of expert testimony, and whether expert testimony
triggers adverse examination. As the community
demands a more effective response to domestic
violence, the local, state, and national
legislative bodies have responded with legislation
to assist in that effort. For example, The Violence
Against Women Act is federal legislation that
increases penalties for specific violent crimes,
creates new categories of criminal behavior related
to domestic violence, provides greater protection
for victims of domestic violence, and funds an
array of initiatives focused toward preventing
domestic violence. In addition, many states have
passed comprehensive domestic violence laws.

Further, the introduction of evidence concerning
battering and its effects introduced into the
courtrooms has been associated with the development
of domestic violence coordinating councils across
the country. A domestic violence coordinating
council, often headed by the court, consists of
community organizations, agencies, and individuals
involved with the problem of domestic violence.
Typical membership includes representatives from
the court, the state attorney's office, the
prosecutor's office, law enforcement, batterer
treatment programs, battered women's shelters,
schools, hospitals, law clinics, child welfare
agencies, and other government agencies and
organizations, for example. A key focus of the
activities of coordinating councils has been to
improve the effectiveness in the way domestic
violence cases are handled in the community at all
levels. These activities have led to reform in
every segment of the community that responds to
domestic violence. See for example, the Dade County
Domestic Violence Plan, "a comprehensive plan to
reduce the rate of incidents of domestic violence
in the community."52 The plan includes a Domestic
Violence Court, a criminal court with a civil
component that mandates punishment for the
defendant but also emphasizes meaningful treatment
for the offender, victim, and children. Another
example is the Duluth Model, a comprehensive
community effort to coordinate law enforcement, the
justice system, and mental health agencies in
Duluth, Minnesota. This model has recently
incorporated three new entities: public health,
child welfare, and private and public sector
employee assistance programs.53 Finally, the
District of Columbia Superior Court has recently
approved an integrated, interagency Domestic
Violence Plan54 that adopts numerous innovative
methods for responding to domestic violence,
especially in the courts.

------------------------------

Conclusion

This report provides a summary of the assessment by
judges, defense attorneys, prosecutors, expert
witnesses, and advocates of the effects of evidence
concerning battering and its effects in criminal
cases involving battered women. This group
concluded that the most important impact of such
testimony was to assist the factfinders in
considering evidence presented in the case. The
strong consensus was that expert testimony is most
likely to clarify the evidence for the factfinder
when it is drawn from the extensive body of
available scientific and clinical knowledge and
when that connection is made relevant to the
factfinder. Equally compelling was the conclusion
that the concept "battered woman syndrome" is
inadequate to the task. There was a recognition
that the impact of evidence concerning battering
and its effects in criminal trials has been felt
outside the context of the individual criminal case
in which it has been introduced. Finally, there was
recognition of the need for continued education of
judges and lawyers in order to most effectively
utilize the available expertise concerning
battering and its effects in criminal cases.
Specifically, the need for standards of practice
for defense and prosecuting attorneys and expert
witnesses in criminal cases involving battered
women was identified.

------------------------------

Notes

1. Parish, J. (1994). Trend analysis: Expert
Testimony on Battering and its Effects in Criminal
Cases. Report prepared for "Family Violence and the
Courts: Exploring Expert Testimony on Battered
Women", a State Justice Institute funded project of
the National Association of Women Judges (No. A-93-
018.DEF). 

2. Paper, "Validity of Battered Woman's Syndrome'
in Criminal Cases" edited by Malcolm Gordon, NIMH,
based on a paper by Dutton, M.A. (1995). Validity
of the Use of Medical and Psychological Expert
Testimony in Criminal Cases Involving Battered
Women. A report prepared for Congress in response
to the Violent Crime Control and Law Enforcement
Act of 1994, Section 40507 of Title IV, The
Violence Against Women Act.

3. Dutton, M.A. (1996). Expert Testimony in
Criminal Cases Involving Battered Women: A Resource
Monograph. A report prepared for "Family Violence
in the Courts: Exploring Expert Testimony on
Battered Women ", a State Justice Institute funded
project by the National Association of Women
Judges.

4. See Dutton, at supra note 2, for a discussion of
the terminology "battered woman syndrome."

5. There were no tribal judges included in the
focus group. Since expert witness testimony is not
typically used in cases presented in tribal courts,
no tribal court judges were identified with
experience with this type of expert testimony. 

6. See, for example, Ibn-Tamas v. United States,
407 A.2d 626 (D.C. Court of Appeals, 1979) which
remanded a case to the trial court for
reconsideration of the decision to exclude expert
testimony. Also see Macpherson, S., Ridolfi, K.
Sternberg, S., & D. Wiley (1981). Expert testimony.
(Appendix G), In E. Bochnak (Ed.), Women's self-
defense cases: Theory and practice.
Charlottesville, VA: The Michie Company for list of
50 trial court cases in which expert testimony on
the subject of battering was presented. Also see L.
E. A. Walker (1989) Terrifying love: Why battered
women kill and how society responds. New York:
Harper & Row, Publishers for a discussion of a 1977
case involving a battered woman charged with
homicide in which Dr. Walker testified as an expert
witness.

7. 88 Wash. 2d 221, 559 P. 2d 548 (1977).

8. See E. M. Schneider & S. B. Jordan (1981).
Representation of women who defend themselves in
response to physical or sexual assault. In E.
Bochnak (Ed.), Women's self-defense cases.
Charlottesville, VA: The Michie Company. pp. 1-39
(at p. 23).

9. Id. at 20.

10. See E. M. Schneider (1986). Describing and
changing: Women's self-defense work and the problem
of expert testimony on battering. Women's Rights
Law Reporter, 9(3/4), 195-226 at 198.

11. See H. Maguigan (1991). Battered women and
self-defense: Myths and misconceptions in current
reform proposals. University of Pennsylvania Law
Review, 140(2), 379-486.

12. See Vidmar, N., & Schuller, R. A. (1989).
Juries and expert evidence: Social framework
testimony. Law & Contemporary Problems, 133.

13. See J. Parrish (1994). Trend analysis: Expert
testimony on battering and its effects in criminal
cases. Report prepared by the National
Clearinghouse for the Defense of Battered Women
(NCDBW) for the National Association of Women
Judges in a State Justice Institute-funded project,
"Family Violence and the Courts: Exploring Expert
Testimony on Battered Women". (No. A-93-018.DEF).

14. Parrish, at supra note 13.

15. Specialized knowledge is that based on
experience, training, or skill such as that
acquired by a battered women's advocate or shelter
worker, counselor, or law enforcement officer.
Specialized knowledge is contrasted with scientific
knowledge that is derived from scientific research.

16. See Parish, at supra note 13, at 35 for a legal
discussion of the scope and relevance of expert
testimony.

17. Dutton, at supra note 2.

18. See Maguigin, at supra note 11. Also see
Maguigan, H. (1995). A Defense Perspective on
Battered Women Charged with Homicide: The Expert's
Role During Preparation for and Conduct of Trials.
Paper prepared for the National Association of
Women Judges' State Justice Institute-funded
project, "Family Violence and the Courts: Exploring
Expert Testimony on Battered Women" (No. A-93-
018.DEF).

19. Maguigin, at supra note 11.

20. Parish at supra note 13.

21. Fed R. of Evid. 702.

22. Walker, L. E. A. (1992). Battered women
syndrome and self-defense. Symposium on Women & the
Law. Notre Dame Journal of Law, Ethics & Public
Policy, 6(2), 321-224.

23. Parish, at supra note 13.

24. Dutton, at supra note 2.

25. Green, B. L., Wilson, J., Lindy, J. D. (1985).
Conceptualizing posttraumatic stress disorder: A
psychosocial framework. In C. Figley (Ed.), Trauma
and its wake: The study and treatment of
posttraumatic stress disorder (pp. 53-69). New
York: Brunner/Mazel.

26. With the exception of insanity, where the
defendant must have a severe mental illness,
defect, or disorder at the time of the alleged
criminal act and that condition must have impaired
the defendant's mental capacity to such an extent
that either (s)he didn't understand the nature and
consequences of what (s)he was doing or did not
understand what (s)he was doing was wrong. See
Potuto, J. R., Saltzburg, S. A., & Pearlman, H. S.
(Eds.). (1993, Supp.). Federal Criminal Jury
Instructions (2nd ed.). Charlottesville, VA: Miche
Company Law Publishers.

27. See Schopp, R. F., Sturgis, B. J., & Sullivan,
M. (1994). Battered woman syndrome, expert
testimony, and the distinction between
justification and excuse. University of Illinois
Law Review, 1194(1), 45-113 for an extended
discussion of this issue.

28. See Dutton, at supra note 2, for a discussion
of how posttraumatic stress disorder may result in
the perception of danger.

29. Fed. R. of Evid. 702.

30. Fed. R. Evid. 702

31. Fed. R. Evid. 702.

32. Dutton, at supra note 2.

33. Parrish, at supra note 13.

34. Compare to Maguigin, H. 140 U. Pa. L. Rev. at
386, 432-33 who found a reversal rate of 43
percent, of which 47 percent were reversals for
reasons related to exclusion or limitation on
expert testimony.

35. Parrish, at supra note 13, at 53.

36. Parrish, at supra note 13.

37. See United States Attorney General's Task Force
on Domestic Violence, Final Report.

38. See State v. Hickson, 630 So. 2d 172 (Fla,
1993). Also see Parrish, at supra note 13, for
review by state of case law on admissibility.

39. The National Judicial College Annual Report
(1994) at 19.

40. 113 S. Ct. 2786 (1993).

41. The guidelines provided in Daubert v. Dow
Pharmaceuticals for evaluating validity were meant
to relate only to scientific validity, leaving the
issue of validity in nonscientific testimony
unaddressed.

42. See Imwinkelried, E. J. (1994). The next step
after Daubert: Developing a similarly
epistemological approach to ensuring the
reliability of nonscientific expert testimony. 15
Cardozo L. Rev, 2271 for a discussion of criteria
for determining validity of nonscientific evidence.

43. The National Judicial College Annual Report
(1994) at 19.

44. Daubert v. Dow Pharmaceuticals, Inc., at supra
note , at 9.

45. Daubert v. Dow Pharmaceuticals, Inc., at supra
note 40, at 11.

46. Parrish, at supra note 13.

47. Schroeder, J. M. (1991). Using battered woman
syndrome evidence in the prosecution of a batterer.
Iowa law Review, 76(3), 553-582.

48. Parrish, at supra note 13.

49. Blackman, J. (1986). Potential uses for expert
testimony: Ideas toward the representation of
battered women who kill. Women's Rights Law
Reporter, 9(3/4), 227-240.

50. State of Florida, Office of the Governor, Exec.
Order No. 92-80 (1991). 

51. Parish, at supra note 13.

52. Administrative Order (No. 92-49) signed by
Chief Judge L. Rivkind, Eleventh Judicial Circuit
Court.

53. See Paymar. M. (1995). Coordinating multiple
systems response: New efforts in Duluth. Paper
presented at the International Study Group on the
Future of Intervention with Battered Women & Their
Families. Haifa, Israel.

54. See The District of Columbia, Domestic Violence
Plan. Copies can be obtained from District of
Columbia Courts, Cheryl R. Bailey, Ph.D., 500
Indiana Avenue, Room 1500, Washington, D.C. 20001
(202-879-1700).

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