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
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

May 1996

NCJ 160972
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.
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

Appendices
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 
ii

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
iii

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 
iv

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
v

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 
vi

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.
vii

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 

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.

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.
viii

-- 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.

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. 

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; 
ix

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

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.

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.
x

-- 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.

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.

With respect to the showing necessary to introduce expert testimony,

nearly 40 percent of the states require that the defendant raise a selfdefense 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.

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.'"
xi

-- 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.

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.

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
xii

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

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.

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.

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 
xiii

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.

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."

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.
xiv

-- 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.

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.

 
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. 
Validity of Battered Woman Syndrome...

i

Contents

Introduction .................................................. 1

Criminal Case Contexts in Which Battering is an Issue ............. 1

To Support a Defense of Self-Defense .......................... 1

To Support a Defense of Insanity .............................. 2

To Support Mitigating Factors in Charging and Sentencing .......... 2

To Support a Defense of Duress .............................. 3

To Support the Prosecution of Crimes Involving 

Domestic Violence ................................... 3

To Explain Misconceptions Related to Domestic Violence ........... 3

The Relevance of Scientific and Clinical Knowledge Concerning

Battering and Its Effects in Criminal Court Proceedings ..... 4

The Nature and Dynamics of Domestic Violence .................. 5

Definition. ......................................... 5

Prevalence. ......................................... 5

Patterns of violence and abuse. .......................... 6

Battered Woman's Appraisal of Danger ......................... 7

Negative Psychological Consequences of Domestic Violence ........ 10

Behavioral Patterns of Victims of Domestic Battering ............. 13

Continued involvement in an abusive relationship ........... 14

Economic Factors ............................. 14

Separation Abuse and Fear of Retaliation ........... 14

Emotional Attachment ......................... 15

Victim’s use of physical aggression toward the abuser ....... 15

Lack of cooperation in prosecuting the abuser ............. 16

Critique of "Battered Woman Syndrome" ....................... 17

Expert Testimony in Cases Involving Battered Women ............ 20

Conclusions ................................................. 22
Validity of Battered Woman Syndrome...

ii

Notes ....................................................... 23
Validity of Battered Woman Syndrome...

1

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: 

The self-defense or insanity defense of a battered woman accused of

murdering or assaulting the perpetrator. 

Charging and sentencing in such cases. 

The duress defense of a battered woman accused of criminal or illegal

conduct through the instigation or coercion of a perpetrator.

The prosecution of cases of domestic violence.

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.
Validity of Battered Woman Syndrome...

2

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. Most 1

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. Although this defense 3

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. Information considered in charging and 4

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
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To Support a Defense of Duress

Batterers use physical force, intimidation, and coercion to control their victims’

thoughts, feelings, and behaviors. Some women, in an attempt to avoid further 6

violence and abuse, comply with the batterer's explicit or implicit demands. For 7

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. Thus, for a battered woman to prove duress, she 8

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. Testimony may be 9

used to explain a battered victim's recantation of an earlier statement, lack of

cooperation with the prosecution, or other conduct of the victim. A battered 10

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. It has 11

been shown that lay persons generally hold misconceptions related to domestic

violence. These misconceptions, when held by the triers of fact, 12
Validity of Battered Woman Syndrome...

4

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" relevant to criminal cases involving battered women. As discussed 13

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, based on new 14

observations and empirical research findings. The information presented here is

drawn from the interdisciplinary fields of domestic violence
Validity of Battered Woman Syndrome...

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 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. Additionally, 15

coercion of the domestic violence victim may be achieved through behaviors

directed toward children, property, pets, or others. Violence or the threat of 16

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. For example, intimidating gestures or comments acquire a very 17

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. However, most of this physical aggression (e.g., solely acts of pushing, 18

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
Validity of Battered Woman Syndrome...

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 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." This pattern is characterized by a series of 21

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. Where present in a particular relationship, the cycle of violence 22

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, 
Validity of Battered Woman Syndrome...

7

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
Validity of Battered Woman Syndrome...

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 behavior, the dangerousness of the situation, and the resources at hand for

responding to that threat. Thus, most people would consider that a woman is 25

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. Analysis of the influence 26

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. Thus, testimony can be offered to assist the factfinder in understanding 27

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. That is, a battered woman's appraisal of the threat implicit in a 28

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. "Actual or threatened death or 29

serious injury, or a threat to the physical integrity of self or others" is defined as a 30

traumatic event within the medical and psychological community. However, once

a batterer has engaged in severe violence toward his partner, any implied or lowlevel violence can be understood as, potentially, a 
Validity of Battered Woman Syndrome...

9

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. Sometimes the batterer's threat is perceived as certain or 32

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; at other times they arise 33

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." In these instances, the 34

incubation, or period of anticipation, heightens the stress or fear associated with

the threat. That is, if a batterer has made threats to kill the battered woman, and 35

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), in 36

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, loss of 38

employment, and increased health-care utilization. The scholarly literature 39 40

documents the negative emotional, social, educational, and physical impact of

domestic violence on children. The negative effects on children of witnessing 41

violence can serve as an additional stressor for battered women, thus increasing

their distress and/or decreasing their capacity to cope effectively.
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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 theory explains the psychological and physical impact of traumatic 43

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"). Such exceptional mental states associated with psychological 44

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 
Validity of Battered Woman Syndrome...

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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, the symptoms of which 46

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. Consider an example where, on a prior occasion, a battered woman 49

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
Validity of Battered Woman Syndrome...

12

 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. Thus, presence of a posttraumatic stress 50

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. In 51

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 violence —or even to neurological damage 53

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 
Validity of Battered Woman Syndrome...

13

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. In many cases, symptoms of depression (or of many other 54

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. It is also often the case that 55

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 substancerelated disorders. Of course, symptoms of these disorders may exist prior to the 56

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. 
Validity of Battered Woman Syndrome...

14

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. Without money, 57

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" —retaliation for a woman’s efforts to separate from the abuser or to end 58

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. Jealousy and possessiveness on the part of the batterer are 59

common in domestic homicides. Thus, a battered woman's fear that her abusive 60

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 
Validity of Battered Woman Syndrome...

15

awarded custody no less often than nonbatterers. There is often no more 62

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. Another explanation for a 63

battered woman's emotional attachment to an abusive partner is based on traumatic

bonding, a process similar to that which occurs in captive prisoners of war or 64

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. One common stereotype is the view that battered women are passive or 65

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, more recent work documents that many 66

battered women engage in active efforts to resist, avoid, escape, and stop the

violence against them.67

A recent Bureau of Justice Statistics study reported that 40 percent of battered 68

women fought back physically, and another 40 percent fought back 
Validity of Battered Woman Syndrome...

16

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. Thus, evidence of a battered woman's 70

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, although police response to 71

domestic violence (as opposed to stranger violence) is slower and less likely to

result in a written report or a search for evidence. Many battered women, 72

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 matter are also 73

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 efforts should be examined in a criminal case 74

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. Ironically, 75

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.
Validity of Battered Woman Syndrome...

17

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." However, 76

the term "battered woman syndrome" does not adequately reflect the breadth or

nature of knowledge concerning battering and its effects. The scientific and 77

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, per se. Offering evidence of the effects of "78

battering does not, in itself, constitute a legal defense. That is, the question of 79

"battered woman syndrome" is not the ultimate issue in a criminal case involving a

battered woman. Rather, testimony about battering and its 
Validity of Battered Woman Syndrome...

18

effects is offered to assist factfinders in their determination of the ultimate issues,

which are case-specific and are reflected in questions such as: 

Did a battered woman reasonably believe she was in danger of harm when

she assaulted her abuser? 

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. Application 80

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. Further, as discussed above, empirical evidence contradicts 81

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. The cyclical pattern of the batterer's behavior, including 83

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-ofviolence" pattern in battering relationships, although this pattern is recognized in

some relationships. As discussed previously, some battered women report 84

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.
Validity of Battered Woman Syndrome...

19

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. A diagnosis of PTSD requires a specific constellation of symptoms. 85

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. Diagnosed in a particular case, PTSD may be relevant to a 86

number of issues in that case. For example, indication that the battered woman 87

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. Any of these 88

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. Accordingly, expert testimony 89

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
Validity of Battered Woman Syndrome...

20

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. It is not the 90

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, ruled in a self- 91

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 
Validity of Battered Woman Syndrome...

21

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. Based on a recent analysis, "expert testimony on battering 94

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." Expert 95

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." That is, expert testimony is offered to show the trier of fact the context 96

of a battered woman's actions. This type of expert testimony, generally, has been 97

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 clinical knowledge about domestic violence and its effects on 99

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. Based on consultation with the 100

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 
Validity of Battered Woman Syndrome...

22

obtained in the evaluation process. This information is later distilled either to

support or refute the questions to which the expert will be asked to respond. 101

This approach fits a model of clinical assessment routinely used in empirically

based clinical practice. Furthermore, the process is straightforward and makes 102

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.
Validity of Battered Woman Syndrome...

23

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). 
Validity of Battered Woman Syndrome...

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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 Yllö, K. and Bograd, M. (Eds.), Feminist

perspectives on wife abuse. Newbury Park: Sage Publications.
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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.
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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.
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56. American Psychiatric Association at supra note 30; Herman, at supra note 43.

57. Johnson. (1992). Economic, situational, and psychological correlates of the decisionmaking 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.
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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.
Validity of Battered Woman Syndrome...

29

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).
30

Validity of Battered Woman Syndrome...

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 selfdefense 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.
31

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)
32

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"
i

Contents

Preface .............................................. iii

I. Overview ................................................ 1

A. Introduction and Acknowledgements ........................ 1

B. Summary of Findings and Conclusions ....................... 2

II. Research Methodology .................................... 8

A. Database for the Trend Analysis ........................... 8

B. Methodology ......................................... 10

III. Expert Testimony Trend Analysis .......................... 12

A. Admissibility of Expert Testimony ......................... 12

B. Types of Cases in Which Expert Testimony Admitted .......... 18

C. Showing Necessary to Introduce Expert Testimony ............ 23

D. Ineffective Counsel Issues ............................... 24

E. Scope and Relevance of Expert Testimony ................... 27

F. Expert Testimony Triggers Adverse Examination .............. 35

G. Case Dispositions on Appeal ............................. 36

IV. Suggested Followup Research Questions ........................ 41

Tables

Table 1: Admissibility of Expert Testimony State Survey Results ...... 13

Table 2: Comparison of Case Disposition on Appeal Results .......... 39
Trend Analysis: Expert Testimony...

ii

Notes ....................................................... 44
Trend Analysis: Expert Testimony...

iii

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." Yet the perception 1

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 
Trend Analysis: Expert Testimony...

iv

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 selfdefense 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
Trend Analysis: Expert Testimony...

v

 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. It is our hope that this research will help 5

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) , Attorney Janet Parrish meticulously researched and 6

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. 
Trend Analysis: Expert Testimony...

vi

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
Trend Analysis: Expert Testimony...

1

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
Trend Analysis: Expert Testimony...

2

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
Trend Analysis: Expert Testimony...

3

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).

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.

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
Trend Analysis: Expert Testimony...

4

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.

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.

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 
Trend Analysis: Expert Testimony...

5

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). 

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
Trend Analysis: Expert Testimony...

6

 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.

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 
Trend Analysis: Expert Testimony...

7

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.

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 
Trend Analysis: Expert Testimony...

8

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 court (primarily appellate) 7

decisions and 31 federal court (mostly appellate) decisions. As detailed in Section 8

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 Batteredwoman (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 
Trend Analysis: Expert Testimony...

9

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.
Trend Analysis: Expert Testimony...

10

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 SelfDefense: 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-selfdefense (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).
Trend Analysis: Expert Testimony...

11

A key to the codes utilized is attached as Appendix I. A table displaying all of the

coded data is attached as Appendix II. A table displaying the coded data for state

statutes only is attached as Appendix III. The tables and codes are also intended to

be usable separate from this narrative analysis.

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 
Trend Analysis: Expert Testimony...

12

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 and

is also denoted by the inclusion of a "?" after the code in the tables in Appendices

II and III. 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 briefly summarized in the following table

(refer to the Coding Legend in Appendix I for a fuller description of the

admissibility codes) and are discussed in more detail in the narrative that follows.
Trend Analysis: Expert Testimony...

13

TABLE 1

ADMISSIBILITY OF EXPERT TESTIMONY STATE SURVEY RESULTS

Admissibility Code Number of States Percentage of States

AH (admits squarely) 21 41

AR (recognizes admissible) 7 14

AL (admits with limits) 6 12

AC (admits conditionally) 6 12

D (discusses content) 10 20

O (outside information) 1 <1

Total 51 100

In 41 percent of the states (21), there is a square holding (coded "AH") that such

testimony is admissible, which breaks down as follows: 9

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. However, 10

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), or both the same and a lower court 12

(Washington). (The nature of the subsequent limiting decisions is briefly 13

discussed infra.)

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. Again, it should be 14

noted that in one-third of these states, there is a subsequent limiting decision

by the same or a higher court. 15 16
Trend Analysis: Expert Testimony...

14

Finally, in two states (Minnesota and Utah), the only square holding of

admissibility is by a trial court; for one of these, there are subsequent 17

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 case or that expert testimony cannot be used to bolster 19

the defendant's credibility. Or, it represents a more limited view of the use of 20

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; indeed, as will be 22

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), such testimony is admissible but only on a limited basis 25

(coded as "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) (coded as "AC"), expert testimony is admissible 26
Trend Analysis: Expert Testimony...

15

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) (coded "D"), it appears such 27

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"); or—most commonly—in a limited way or on the 29

particular facts of the case (e.g., because the case involved not a self-defense

claim, but a duress defense) (coded "EL"); or—in Wyoming—unless and until 30

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. It should also be noted that of the 35 32

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 (see Appendix III

for a table displaying this data). 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, 
Trend Analysis: Expert Testimony...

16

Vermont, and Wisconsin) plus the District of Columbia. Some of this legislation is

"dead," while other bills appear to be pending. These data are not reflected in the

table in Appendix III. 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]). Thus, it is important that California and Massachusetts 33

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. The remaining four (Georgia, Maryland, Ohio, and Wyoming) 35 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." The 38 39

 others (Georgia, Louisiana, Massachusetts, Nevada, Oklahoma, and Texas) are

more generic in their language, referring to the nature and effects of "domestic

violence," "family violence" or "physical, sexual or psychological abuse" on 40 41 42

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. 
Trend Analysis: Expert Testimony...

17

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) have admitted expert testimony on battering and its effects. Only one 43

(7th Cir.) of the five has excluded the testimony outright, while the other four 44

(9th Cir., 6th Cir., S.D.N.Y., and S.D.Ohio) have excluded it on the facts of the 45

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) that excluded testimony on a limited 46

basis have admitted such testimony in other cases.

Three of the Courts of Appeals (10th, 9th, and 8th Circuits) have admitted such 47

testimony squarely (coded "AH"), as have two federal district courts (D.Kan. and

S.D.Fla.). Another circuit (6th Cir.) (plus one of the circuits that also has made a 48

square holding (8th Cir.)) has recognized the admissibility of the testimony without

discussing it (coded "AR"). One district court (N.D.Ill.) (together with one 49

circuit that has also made a square holding of admissibility (9th Cir.)) admitted

testimony with limitations on its scope (coded "AL"). Two district courts 50

(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.) , and three (10th, 9th, and 6th Circuits) that also have 52

holdings of admissibility coded "AH," "AR," "AL" or "AC,"
Trend Analysis: Expert Testimony...

18

 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 (see the Coding Legend in

Appendix I).

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 
Trend Analysis: Expert Testimony...

19

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, so 53

these were not categorized separately.) Ninety percent of the states (45) have 54

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
Trend Analysis: Expert Testimony...

20

 Dakota, Ohio, South Carolina, Tennessee, and Wisconsin) have admitted expert 57

testimony in a "sleeping man case." Only three states (Louisiana, New York, and

Ohio) (two of which admitted it in other sleeping man cases) have explicitly 58

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) have admitted such 59

testimony in a "hire to kill case." Only four states (Illinois, Maryland, Missouri, and

Montana) have explicitly refused to admit expert testimony in such cases. 60

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), expert testimony on battering and its 61

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. 
Trend Analysis: Expert Testimony...

21

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). Moreover, a total of ten states 62

(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 woman and the other five in sexual assault or 63

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), three of which have also admitted such testimony in other cases, 65

"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, but were tabulated as a duress case only in order to better track the issue 67

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) have admitted testimony in 68

duress cases, while 10 percent (five) (Alabama, Kentucky,
Trend Analysis: Expert Testimony...

22

 Michigan, Ohio, and Washington) have refused to do so. Fourteen percent of the 69

states (seven) (Florida, Illinois, Indiana, Massachusetts, Minnesota, Missouri,

Montana, and Rhode Island) have admitted testimony in third party cases, while 70

two (Missouri and Ohio) have refused to do so. 71

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), it is certainly possible that there are additional civil 72

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). It has also been used in at least 73

three states (Nebraska, New York, and West Virginia) in cases involving 74

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 cases (and none of the termination 75

cases) was there explicit or implicit discussion by the court of the admissibility of

the expert testimony; in all the others (coded "D"), there was no square holding 76

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
Trend Analysis: Expert Testimony...

23

has killed, rather than merely assaulted, someone). Both the California and 77

Nevada statutes provide that the testimony can be used either in the case in chief 78

or in rebuttal, suggesting that it can be offered by the prosecution against an

accused batterer. 

By statute, Massachusetts and South Carolina , and perhaps Nevada , permit the 79 80

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 selfdefense 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. Two federal courts (9th and 7th Circuits) have 82 83

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) have done so in 85

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.) have admitted expert testimony in one hire-to-kill 87

case, and two (9th and 8th Circuits) have admitted it when used by the 88

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 
Trend Analysis: Expert Testimony...

24

percent of the) states (or, it can only be said that testimony has been admitted 89

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) may require that 91

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) requires 92

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) have required some evidence that 93

"battered woman syndrome" is accepted in the scientific community. However,

nine states (Connecticut, Florida, Illinois, Minnesota, Missouri, New York, Ohio,

Utah, and Washington) have specifically said that there need not be any such 94

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) have 95

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) require that the 96

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) has explicitly held 97

that a defendant need not first make such a showing. 
Trend Analysis: Expert Testimony...

25

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

Of the 12 state statutes, 42 percent (5) (Georgia, Louisiana, Ohio, Texas, and

Wyoming) require that there be a claim of self-defense in order for the expert 98

testimony to be admissible. One-fourth of the state statutes (3) (Louisiana,

Maryland, and Oklahoma) require, essentially, that the defendant first establish 99

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" and that lay 101

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." Finally, in Missouri, although the 102

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.) has found that a claim of self-defense must 104

be asserted in order to introduce expert testimony, while two (9th and 8th

Circuits) have found that the testimony is not limited to cases where a self- 105

defense claim is asserted. Two district courts (E.D.Pa. and S.D.N.Y.) have held 106

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.) have required some showing of the 107
Trend Analysis: Expert Testimony...

26

acceptance of "battered woman syndrome" in the scientific community, while

another (S.D.N.Y.), in a more recent decision, has found that no such showing 108

need be made. Two federal courts (8th Cir. and E.D.Pa.) have explicitly required 109

qualification of the proffered expert witness. And two federal district courts

(S.D.Ohio and E.D.Pa.) have found that the probative value of the proffered 110

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) (in a total of 12 decisions) found that counsel was not 112

ineffective; the other 40 percent (six states) (California, Delaware, Nevada,

Pennsylvania, Tennessee, and Wisconsin) have rendered a total of nine decisions 113

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 
Trend Analysis: Expert Testimony...

27

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." Nearly as many, 35 states or 69 117

percent, have found "generic" expert testimony admissible, i.e., to explain 118

battering and its effects generally. Of these, 10 states (20 percent) (Alaska,

Georgia, Kentucky, Michigan, Minnesota, Ohio, Pennsylvania, South Dakota,

Vermont, and Wisconsin) prohibit the expert from expressing an opinion 119

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 
Trend Analysis: Expert Testimony...

28

the states (35) have found expert testimony to be relevant to supporting a self- 121

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.) In addition, 19 states (37 125

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. A handful of 126

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
Trend Analysis: Expert Testimony...

29

also joins Washington in finding the testimony to be relevant to assessing the 129

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) —have found 130

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) has held that an expert cannot testify on the ultimate 131

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. However, six states (Alabama, Illinois, 132

Michigan, Montana, Ohio, and Washington) have found expert testimony to be 133

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. This 134

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), in the 135

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. 
Trend Analysis: Expert Testimony...

30

While expert testimony on battering generally has the effect of dispelling myths and

misperceptions about battered women, just one-third of the states (17) have 136

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) agree that expert testimony on battering 137

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. Interestingly, two of these states (Kentucky and 139

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) have found expert testimony on battering and its effects to be 141

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, 
Trend Analysis: Expert Testimony...

31

Montana, Oregon, and Washington) have found that the testimony is not 142

admissible to bolster credibility. 

On a somewhat related issue, six states (Kansas, Maine, New Mexico, New York,

Ohio, and Texas) have said evidence of the defendant's prior bad acts is 143

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) have found such testimony to be admissible to show the existence 145

of mitigating factors in the defendant's favor or otherwise affect the sentencing

phase of the trial. Two states (Minnesota and North Carolina) have held to the 146

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) have found this testimony to be relevant to explain the 147

complainant's recanting prior testimony or statements given against the batterer.

Only one state (Ohio) has held to the contrary. 148

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); and (2) expert 150

testimony is relevant to the damages determination in a tort action (Idaho and

Louisiana). Presumably, expert testimony has actually been used for these 151

purposes in additional civil actions, which have not been reported or are not within

our limited civil database. 
Trend Analysis: Expert Testimony...

32

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 states there have been decisions wherein the admissibility of expert 152

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." A shortened version of this language is echoed in the Oklahoma 153

statute. The Massachusetts statute is also quite expansive in its approach, 154

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) permit use of the testimony as to the defendant's state of mind. Six 156

(California, Missouri, Nevada, Ohio, South Carolina, and Wyoming) find it 157

generally relevant to a self-defense claim. Five (California, Georgia,

Massachusetts, Ohio, and Wyoming) specifically note its relevance to the 158

reasonableness of the defendant's belief that she was in danger of bodily harm 
Trend Analysis: Expert Testimony...

33

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) also finds it relevant to the 160

proportionality of the force used. 

Five (Massachusetts, Missouri, Ohio, South Carolina, and Wyoming) state 161

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.) have so held. Just one court (E.D.Pa.) has held to the 164

contrary. Five (10th Cir., 9th Cir., 3rd Cir., N.D.Ill., and S.D.Fla.) of the 12 165 166

"state of mind" jurisdictions plus two other federal courts (5th Cir. and 167

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) of the 16 courts admitting the 169

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.) has also held to the contrary in an earlier case. Further, six (10th Cir., 9th 170

Cir., 8th Cir., W.D.La., E.D.Pa., and D. Hawaii) of the ten courts that permit 171

expert testimony that the defendant is a battered woman, plus one other federal

court (S.D.N.Y.) , permit an expert to give more generic testimony about the 172

characteristics of battered women. 
Trend Analysis: Expert Testimony...

34

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.) have found the testimony 173

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.) has found the testimony admissible to rebut common myths and 174

misperceptions about battered women, and one appeals court (8th Cir.) has 175

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) have found expert testimony to be 176

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) have found the 178

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) has found it relevant to the defendant's perception of the 179

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.) have 180

found that the testimony can be admitted to bolster the defendant's credibility,

while an appeals court (8th Cir.) has held to the contrary. On a somewhat 181

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.) have permitted experts 183

to give an opinion on the ultimate question before the factfinder, while three others

(9th Cir., N.D.Ill., and S.D.Fla.) have said this is not permissible. 184

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
Trend Analysis: Expert Testimony...

35

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) have found that introducing expert testimony can indeed trigger an adverse 186

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. At least one Minnesota trial court has 187

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 defendantspecific 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, consistent with the general 190

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
Trend Analysis: Expert Testimony...

36

3. Expert testimony triggers adverse examination: federal cases

Only three federal courts have looked at this issue—two appeals courts (9th and

6th Cir.) have found that the introduction of expert testimony does subject the 192

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), civil actions (13 cases), decisions on 194 195

pretrial motions (12 cases), or dispositions of cases at the trial level (30 196

cases). The remaining 152 decisions by intermediate or high courts regarding 197

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. This is quite similar to Maguigan's finding that of all 198

the battered women's self-defense cases she studied (approximately 270

opinions), 59 percent of the appeals resulted in affirmances (Id at 432). 199
Trend Analysis: Expert Testimony...

37

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. Consistent with the methodology 200

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, somewhat lower than the 63 percent 201

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

them (71 percent of all affirmed convictions/sentences). Thus, notwithstanding 202 203

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, limitation of, or failure of 204 205

counsel to present expert testimony on battering and its effects. Significantly, 206

these 22 cases represent just 14 percent of the 152 decisions in the pool. The other

27 cases (55 percent of all reversals) were reversed on other grounds unrelated 207

to the expert testimony issue. No cases were found in
Trend Analysis: Expert Testimony...

38

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, six for 208

reasons unrelated to the expert testimony issue and one due to the exclusion of 209

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.

The comparative data are displayed in the following table.
Trend Analysis: Expert Testimony...

39

TABLE 2

COMPARISON OF CASE DISPOSITION ON APPEAL RESULTS

Disposition NCDBW Database Maguigan's Database Maguigan's

For Current Analysis (direct comparison) Database

(indirect

comparison)

 Total cases 152 (100%) 80 (100%) 80 (100%) 210

 Affirmed on appeal 96 (63%) 42 (53%) 48 (60%)211

Reversed on appeal 49 (32%) 34 (43%) 32 (40%)

Reversed for

expert testimony

reason

 22 (45% of reversals; 16 (47% of reversals; 17 (53% of 

14% of all cases) 20% of all cases) reversals; 

21% of all cases) 

Reversed on other

grounds

 27 (55% of reversals) 18 (53% of reversals) 15 (47% of

reversals)

Remanded on

appeal

 7 (5%) 3 (4%) Unknown

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 testimonyrelated 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.
Trend Analysis: Expert Testimony...

40

To back into our indirect comparison, we first noted that the 80 expert testimonyrelated 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. (In fact, according to our direct comparison, there were 16 cases 212

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 testimonyrelated 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
Trend Analysis: Expert Testimony...

41

reversals for exclusion of expert testimony, half (8) were decided as recently as 213

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), decisions on pretrial motions (two 215

cases), dispositions of cases at the trial level (four cases), or sentencing 216 217

decisions (one case). 

218

Of the remaining 22 cases, 77 percent (17) resulted in affirmances of convictions

and/or sentences. This is significantly higher than the 60-percent affirmance rate 219

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, and two were reversed on other grounds, unrelated to the expert 220

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
Trend Analysis: Expert Testimony...

42

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?
Trend Analysis: Expert Testimony...

43

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?
Trend Analysis: Expert Testimony...

44

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.
Trend Analysis: Expert Testimony...

45

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)).
Trend Analysis: Expert Testimony...

46

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),
Trend Analysis: Expert Testimony...

47

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,
Trend Analysis: Expert Testimony...

48

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. 
Trend Analysis: Expert Testimony...

49

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
Trend Analysis: Expert Testimony...

50

(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 
Trend Analysis: Expert Testimony...

51

(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.
Trend Analysis: Expert Testimony...

52

 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. §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 §1107 (West 1993) (see Section 2 of Stats.1991, c. 812 (A.B.785)),

MASS. GEN. LAWS ANN. ch.233, §23E (West 1994), S.C.CODE ANN. §17-23-170(A) (Law.

Co-op. 1995).

35. CAL. EVID. CODE §1107, LA. CODE EVID. ANN. art. 404(A)(2) (West 1989), MASS. GEN.

LAWS ANN. ch. 233, §23E, MO. ANN. STAT. (Crimes & Punishment) §563.033 (Vernon

1991), NEV. REV. STAT. §48.061 (1993), OKLA. STAT. ANN. tit. 22, §40.7 (West 1992), S.C.

CODE ANN. §17-23-170(A), TEX. PENAL CODE §19.06 (West 1992). 

36. GA. CODE ANN. §16-3-21(d) (Michie 1994), MD. CTS. & JUD. PROC. CODE ANN. §10-916

(1991), OHIO REV. CODE ANN. §2901.06(B) (Anderson 1990), WYO. STAT. (Crimes and

Offenses) §6-1-203 (1993).

37. CAL. EVID. CODE §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. §2901.06, WYO. STAT.

§6-1-203.

38. MD. CTS. & JUD. PROC. CODE ANN. §10-916, MO. ANN. STAT. (Crimes and
Trend Analysis: Expert Testimony...

53

 Punishment) §563.033, S.C.CODE ANN. §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, §40.7, NEV. REV. STAT.

§48.061.

41. GA. CODE ANN. §16-3-21(d), TEX. PENAL CODE §19.06(b)(1).

42. MASS. GEN. LAWS ANN. ch. 233, §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)). 
Trend Analysis: Expert Testimony...

54

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 
Trend Analysis: Expert Testimony...

55

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 selfdefense 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; 
Trend Analysis: Expert Testimony...

56

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
Trend Analysis: Expert Testimony...

57

 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
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 (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. §16-3-21(d), NEV. REV. STAT. §48.061(2), TEX. PENAL CODE §19.06.

78. CAL. EVID. CODE §1107(a), NEV. REV. STAT. §48.061.

79. MASS. GEN. LAWS ANN. ch. 233, §23E, S.C.CODE ANN. §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. §48.061(1)).

81. CAL. EVID. CODE §1107 (see Section 2 of Stats. 1991, c. 812 (A.B. 785)), MASS. GEN.

LAWS ANN. ch. 233, §23E, OKLA. STAT. ANN. tit. 22 §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
Trend Analysis: Expert Testimony...

59

 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
Trend Analysis: Expert Testimony...

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(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. §16-3-21(d), LA. CODE EVID. ANN. art. 404 (A)(2), OHIO REV. CODE ANN.

§2901.06(B), TEX. PENAL CODE §19.06(b)), WYO. STAT. (Crimes and Offenses) §6-1-

203(b).

99. LA. CODE EVID. ANN. art. 404(A)(2), MD. CTS. & JUD. PROC. CODE ANN. §10-916(b),

OKLA. STAT. ANN. tit. 22, §40.7.

100. CAL. EVID. CODE §1107(b), OHIO REV. CODE ANN. §2901.06(A)(1), S.C.CODE ANN. §17-

23-170(B).

101. S.C.CODE ANN. §17-23-170(D).

102. S.C.CODE ANN. §17-23-170(C).

103. See MO. ANN. STAT. (Crimes and Punishment) §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).
Trend Analysis: Expert Testimony...

61

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
Trend Analysis: Expert Testimony...

62

 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).
Trend Analysis: Expert Testimony...

63

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; 
Trend Analysis: Expert Testimony...

64

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 (IbnTamas (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).
Trend Analysis: Expert Testimony...

65

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 
Trend Analysis: Expert Testimony...

66

(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
Trend Analysis: Expert Testimony...

67

(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 §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 
Trend Analysis: Expert Testimony...

68

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 §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, §40.7).

155. MASS. GEN. LAWS ANN. ch. 233, §23E.

156. CAL. EVID. CODE §1107, GA. CODE ANN. §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.

§10-916(b), NEV. REV. STAT. §48.061(1), OHIO REV. CODE ANN. §2901.06, TEX. PENAL

CODE §19.06(a) and (b)(2).

157. CAL. EVID. CODE §1107, MO. ANN. STAT. (Crimes and Punishment) §563.033.1, NEV. REV.

STAT. §48.061(2), OHIO REV. CODE ANN. §2901.06, S.C.CODE ANN. §17-23-170(A),

WYO. STAT. (Crimes and Offenses) §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. §17-23-170(A).
Trend Analysis: Expert Testimony...

69

158. CAL. EVID. CODE §1107, GA. CODE ANN. §16-3-21(d), MASS. GEN. LAWS ANN. ch. 233,

§23E, OHIO REV. CODE ANN. §2901.06(B), WYO. STAT. (Crimes and Offenses) §6-1-

203(b).

159. See citations in preceding note.

160. MASS. GEN. LAWS ANN. ch. 233, §23E.

161. MASS. GEN. LAWS ANN. ch. 233, §23E, MO. ANN. STAT. (Crimes and Punishment)

§563.033, OHIO REV. CODE ANN. §2901.06(B), S.C.CODE ANN. §17-23-170(A), WYO.

STAT. (Crimes and Offenses) §6-1-203(b).

162. MASS. GEN. LAWS ANN. ch. 233, §23E(b).

163. OHIO REV. CODE ANN. §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 §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).
Trend Analysis: Expert Testimony...

70

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
Trend Analysis: Expert Testimony...

71

 — 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) §§563.033.2, 563.033.3.

190. OHIO REV. CODE ANN. §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. §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).
Trend Analysis: Expert Testimony...

72

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
Trend Analysis: Expert Testimony...

73

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).
Trend Analysis: Expert Testimony...

74

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 
Trend Analysis: Expert Testimony...

75

(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

Impact of Evidence...

i

Contents

Introduction 1

Background 1

Impact of Evidence Concerning Battering 

and Its Effects ........................................ 3

Direct Effects ........................................... 3

Implications for the deliberation process ................. 3

Implications for the disposition of cases ................. 7

Indirect Effects ......................................... 8

Implications for the judiciary .......................... 8

Implications for legal counsel ........................ 10

Implications for other legal matters .................... 12

Implications for resource availability ................... 12

Implications for the community ....................... 13

Conclusion ........................................ 14

Notes ........................................ 15
Impact of Evidence...

1

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 Cases and (b) Validity of "Battered Woman 1

Syndrome" in Criminal Cases. A related report, Expert Testimony in Criminal 2

Cases Involving Battered Women: A Resource Monograph, developed by the 3

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. This report is based largely on the 4

results of a focus group conducted over three days consisting of federal and state

court judges, prosecutors, defense attorneys, expert witnesses, and advocates. See 5

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:
Impact of Evidence...

2

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. A 1977 Supreme Court of Washington decision, State v. 6

Wanrow, ruled in a self-defense case involving a woman defendant that she was 7

"entitled to have the jury consider her actions in the light of her own perceptions of

the situation." The lawyers successfully argued that the jury instructions offered at 8

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." Thus, the original intent of 9

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. This type of expert testimony has been called social framework 11

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." Based on a recent analysis, "expert testimony on battering and 12

its effects is admissible, at least to some degree, or has been admitted (without any

discussion of the standards for admissibility) in every state." See Trend Analysis: 13

Expert Testimony on Battering and its Effects in Criminal Cases for a review of 14

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, casespecific 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
Impact of Evidence...

3

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. See the 16

companion report, Validity of the Use of Medical and Psychological Expert

Testimony in Criminal Cases Involving Battered Women, for an extended 17

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. Another 18

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 
Impact of Evidence...

4

case. See the Trend Analysis: Expert Testimony on Battering and its Effects in 19

Criminal Cases for an extensive review of the scope of expert testimony defined 20

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." The dilemma that results is that, on the one hand, there 21

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. There is the perception that "battered woman 22

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 Cases for a complete review of state statutes governing admissibility of 23

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 
Impact of Evidence...

5

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). Thus, there is no single effect or set of effects that characterize all 25

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 
Impact of Evidence...

6

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. A battered woman's reasonable belief that 26

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. Because of such violence, it can 27

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. Thus, for these reasons 28

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" must necessarily be derived from a foundation 29

of "scientific, technical, or other specialized knowledge" to serve 30
Impact of Evidence...

7

the intended purpose: to "assist the trier of fact to understand the evidence or to

determine a fact in issue." See Validity of the Use of Medical and Psychological 31

Expert Testimony in Criminal Cases Involving Battered Women for a review of 32

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, found that convictions of battered women were reversed in 32 percent of 33

cases, of which 45 percent of these reversals were due to erroneous exclusion of, 34

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
Impact of Evidence...

8

 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." See Trend Analysis: Expert 35

Testimony on Battering and its Effects in Criminal Cases for a comprehensive 36

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 
Impact of Evidence...

9

testimony is already established, the judge is in a position to rule on issues such 38

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." It follows that one impact of the introduction of evidence on battering 39

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. places an increased burden on the 40

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 scientific and nonscientific evidence. While there are standard principles of 41 42

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. Among their course offerings related to domestic violence, 43

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 
Impact of Evidence...

10

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" which requires "a valid scientific connection to the pertinent inquiry as a 44

precondition to admissibility." Taken together, these factors point to the need for 45

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 
Impact of Evidence...

11

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 Cases for a review of cases in which expert testimony has been 46

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. See Trend Analysis: Expert 47

Testimony on Battering and its Effects in Criminal Cases for a review of case 48

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. 
Impact of Evidence...

12

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. Thus, the impact 50

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 
Impact of Evidence...

13

"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 Cases for a review of state statutes and criminal codes related to 51

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
Impact of Evidence...

14

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." The plan includes a Domestic Violence Court, a 52

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. Finally, the District of Columbia Superior Court has recently approved 53

an integrated, interagency Domestic Violence Plan that adopts numerous 54

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.
Impact of Evidence...

15

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.
Impact of Evidence...

16

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 Institutefunded 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 (Appendix III).

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, 
Impact of Evidence...

17

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.
Impact of Evidence...

18

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).
Appendices Not Included