I served as defendant’s co-counsel in the matter of State v. Haines (2006), WL 3813763, 2006-Ohio-6711, before the Ohio Supreme Court. The purpose of this Blog is to address the implications of the decision reached in the Haines case.
A SHIELD FOR THE DEFENSE IS NOW A SWORD FOR THE PROSECUTION
The defense attorney triumphantly returns to the table. His cross-examination of the alleged victim revealed she had lied to her friends, her doctors, her co-workers, the police, and even the prosecutor. The defendant, charged with domestic violence, noticed the look of disgust upon the juror’s faces as the alleged victim removed herself from the stand. The cross-examination erased any sympathy the jury may have initially had towards her. It was a credibility contest and it was clear the alleged victim was inconsistent and untruthful. There was reason to doubt her story. The prosecutor stood, not to rest the State’s case, but to call one last witness, a doctor, a board-certified forensic psychologist with a laundry list of credentials and experience.
THE BATTERED WOMAN SYNDROME
The defense attorney triumphantly returns to the table. His cross-examination of the alleged victim revealed she had lied to her friends, her doctors, her co-workers, the police, and even the prosecutor. The defendant, charged with domestic violence, noticed the look of disgust upon the juror’s faces as the alleged victim removed herself from the stand. The cross-examination erased any sympathy the jury may have initially had towards her. It was a credibility contest and it was clear the alleged victim was inconsistent and untruthful. There was reason to doubt her story. The prosecutor stood, not to rest the State’s case, but to call one last witness, a doctor, a board-certified forensic psychologist with a laundry list of credentials and experience.
THE BATTERED WOMAN SYNDROME
Dr. Lenore Walker is widely recognized as the first person to identify the battered woman syndrome. From 1978 through June 1981, Dr. Walker conducted a study of over 400-battered women to study the effects of domestic violence. Her research led her to define the syndrome as "a cluster of psychological symptoms" that women develop from living in a violent relationship. The battering relationship itself is often described as cyclical in nature, with three distinct phases: tension building, confrontation, and contrition. During the "tension building" phase, the woman is generally compliant, often feeling as though she deserves the abuse. Once the tension reaches a boiling point, the batterer will erupt uncontrollably, committing a violent act. Next, in an abrupt about-face, the abuser will exhibit seemingly intense love and affection towards his victim. The victimized women are then led to believe that the violence was an isolated incident and that it will not continue. This cycle of violence may leave the victim with feelings of learned helplessness, low self-esteem, depression, minimization techniques, self-isolation, and passivity. It is this collection of resulting symptoms that has come to be known as the "battered woman syndrome." Hawes, Removing the Roadblocks to Successful Domestic Violence Prosecutions; Prosecutorial Use of Expert Testimony on the Battered Woman Syndrome in Ohio (2005), 53 Clev.St.L.Rev. 136-137. (citations omitted).
EXPERT TESTIMONY ON THE BATTERED WOMAN SYNDROME AS A SHIELD FOR THE DEFENSE
In 1981, the Supreme Court of Ohio ruled that a defendant who plead self-defense was barred from introducing expert testimony on the subject of “battered wife syndrome.” State v. Thomas (1981), 66 Ohio St.2d 518. The Court found said testimony to be irrelevant and that the subject was within the understanding of the jury. Finally, the Court ruled that battered woman syndrome was not sufficiently developed as a matter of commonly accepted scientific knowledge to warrant testimony under the guise of expertise, and that its prejudicial impact outweighed any probative value.
Nearly ten years later, in State v. Koss (1990), 49 Ohio St.3d 213, the Court reversed its decision in Thomas and held that a defendant who claims that she acted in self-defense, could introduce evidence that she suffered from the battered woman syndrome to assist in establishing the elements of her defense. The Court reasoned that battered woman syndrome has gained substantial scientific acceptance to warrant admissibility into evidence and that the testimony will assist the jury in understanding the battered woman syndrome and assist in determining whether the defendant had reasonable grounds for an honest belief that she was in imminent danger when considering the issue of self-defense. The Court noted that the admission of expert testimony regarding battered woman syndrome does not establish a new defense or jurisdiction; it is to assist the trier of fact to determine whether the defendant acted out of an honest belief that she was in imminent danger of death or great bodily harm and that the use of force was her only means of escape. Finally, a defendant attempting to admit expert testimony regarding battered woman syndrome must offer evidence which establishes that she is a battered woman. Koss, at 217-18.
On August 6, 1990, the Ohio General Assembly enacted R.C. § 2901.06 which essentially codified the decision in Koss. R.C. § 2901.06 provides as follows:
(A) The general assembly hereby declares that it recognizes both of the following, in relation to the “battered woman syndrome.”
(1) That the syndrome currently is a matter of commonly accepted scientific knowledge;
(2) That the subject matter and details of the syndrome are not within the general understanding or experience of a person who is a member of the general populace and are not within the field of common knowledge.
(B) If a person is charged with an offense involving the use of force against another and the person, as a defense to the offense charged, raises the affirmative defense of self-defense, the person may introduce expert testimony of the “battered woman syndrome” and expert testimony that the person suffered from that syndrome as evidence to establish the requisite belief of an imminent danger of death or great bodily harm that is necessary, as an element of the affirmative defense, to justify the person’s use of the force in question. The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.
In addition to the General Assembly’s explicit authorization for the introduction of expert testimony of the “battered woman syndrome” by a defendant who raises the affirmative defense of self-defense, the General Assembly also enacted R.C. § 2945.392, which provides as follows:
(A) The declarations set forth in division (A) of section 2901.06 of the Revised Code apply in relation to this section.
(B) If a defendant is charged with an offense involving the use of force against another and the defendant enters a plea to the charge of not guilty by reason of insanity, the defendant may introduce expert testimony of the “battered woman syndrome” and expert testimony that the defendant suffered from that syndrome as evidence 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. The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.
Thus, the General Assembly explicitly provides for only two (2) situations wherein a defendant is explicitly authorized to introduce expert testimony of the “battered woman syndrome.” Specifically, a defendant may introduce said expert testimony where the defendant enters a plea to the charge of not guilty by reason of insanity and/or raises the affirmative defense of self-defense. R.C. § 2945.392; R.C. § 2901.06.
THE BATTERED WOMAN SYNDROME FOLLOWING KOSS
Subsequent to the holding in Koss and the General Assembly’s enactment of R.C. § 2945.392 and R.C. § 2901.06, a line of cases emerged which limited the introduction of expert testimony of the battered woman syndrome, to instances wherein a defendant intends to introduce expert testimony as evidence to establish the requisite elements of the affirmative defense of self-defense or as evidence to establish the requisite impairment of the defendant’s reason in a case where the defendant pleads not guilty by reason of insanity.
When confronted with the issue of whether a defendant can introduce expert testimony in a case where neither self-defense nor the insanity defense is invoked, reviewing courts declined the admission of said expert testimony when offered by the defendant. State v. Baker (1992), No. 13-91-46 (3d Dist. Ct. App., Seneca, 7-16-92) (the battered woman syndrome defense is not applicable in an aggravated drug trafficking prosecution, notwithstanding the fact that the defendant claims she participated in her live-in boyfriend’s drug activities because of her fear of him); State v. Redding (Mar. 5, 1992), Cuyahoga App. No. 59988, unreported (battered woman syndrome testimony is not admissible when the accused claims she did not commit the crime); State v. Sonko (1996), WL 267749 (Ohio App. 9 Dist.) (trial court properly excluded expert testimony to explain the defendant’s participation in the mailing of drugs to Ohio and held that “[s]uch evidence is limited to claims of self-defense.” at 3).
The Eleventh District Court of Appeals held in State v. Lundgren (1994), WL 171657 (Ohio App. 11 Dist.), that “[t]he limitation set forth in the statute is controlling. The General Assembly has indicated at this point, testimony concerning battered woman syndrome is only admissible when self-defense has been raised.” at 19 (emphasis added). Similarly, prosecutors who attempted to introduce expert testimony on the battered woman syndrome as a sword against the defendant, in order to explain the behavior of the alleged victims in their cases, were prohibited from doing so as the syndrome was seemingly only available as a shield to a defendant. State v. Pargeon (1991), 64 Ohio App.3d 679; State v. Dowd (1994), WL 18645 (Ohio App. 9 Dist.); State v. Cummings (2002), WL 1873809 (Ohio App. 8 Dist.).
EXPERT TESTIMONY ON THE BATTERED WOMAN SYNDROME AS A SWORD FOR THE PROSECUTION - STATE V. HAINES (2006), WL 3813763, 2006-OHIO-6711
On December 28, 2006, the Supreme Court of Ohio issued its decision in the matter of State v. Haines (2006), WL 3813763, 2006-Ohio-6711. The Haines matter was pending before the court on the certification of a conflict by the Court of Appeals for Lake County. The Court was to address the issue of whether the state may introduce expert testimony regarding battered woman syndrome to aid the trier-of-fact in determining the victim’s state of mind, e.g., to explain why she returned to the defendant despite his aggressions toward her, when a victim’s credibility is challenged upon cross-examination during the state’s case-in-chief. The Court responded in the affirmative and held that the prosecution may introduce said expert testimony.
The Court recognized that such testimony must first be relevant and have a proper foundation pursuant to Evid. R. 401. Further, the Court held that in light of the potential unfair prejudice and Evid. R. 403(A) concerns, trial courts should tailor the scope of the prosecution’s questioning and ensure the jurors are instructed as to the limits of the expert’s testimony.
DEFENDING AGAINST THE PROSECUTION’S NEW WEAPON
Relevancy
The Court in Haines found that “. . . while battered woman-syndrome testimony can be relevant for explaining a victim’s behavior, it cannot be considered relevant if there is no evidence that the victim suffers from battered woman syndrome.” Haines, at ¶46.The Court noted that evidence which generally establishes the cycles of a battering relationship is an appropriate foundation for the expert testimony. Id., at ¶48. Further, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice as any woman may find herself in an abusive relationship with a man once, but if it happens a second time, and she remains, she is defined as a battered woman. Id., at ¶49.
In line with the Court’s restrictions, it is imperative that defense counsel request any and all expert reports through the discovery process. Further, prior to the introduction of said testimony, an in-camera hearing should be conducted in order to determine whether the foundational requirements are present. The hearing could potentially provide valuable discovery as inquiry can be made into the information relied upon by the expert in coming to his or her conclusion. Given the potential impact of such testimony, defense counsel should consider retaining an expert to rebut the State’s witness, both at hearing and at trial.
The Danger of Unfair Prejudice
In Haines, the Court noted that even when its relevance is shown through a proper foundation, a court must carefully weigh whether the expert testimony violates Evid. R. 403(A), which excludes relevant evidence where its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of issues, or of misleading the jury. Id., at ¶55. The Court further noted that when an expert witness diagnoses a victim as a battered woman, it is essentially a conclusion that the defendant is the batterer and in a case where the underlying charges involve domestic violence, such a conclusion is prejudicial to the defendant and usurps the jury’s role as finder-of-fact. Id., at ¶55. Even in cases which do not involve a charge of domestic violence, the prejudice remains as the defendant is labeled a batterer. Id. Finally, the Court cautions trial courts to carefully balance the admission of such testimony under Evid. R. 403.
The Scope of the Testimony
In light of the danger of unfair prejudice, the Court in Haines ruled that trial courts should tailor the scope of the state’s questioning and ensure the jury is instructed as to the limits of the expert’s testimony. Id., at ¶57. As to the limits to be imposed, the Court cited to cases which provided that experts called to testify in domestic violence prosecutions must limit their testimony to the general characteristics of a victim suffering from the syndrome. Further, the expert may also answer hypothetical questions regarding specific abnormal behaviors exhibited by women who suffer from the syndrome, but should never offer an opinion relative to the alleged victim in the case at trial. Id., at ¶56. (emphasis added). Cross-examination must likewise be limited in order to avoid opening the door to any specific opinion or testimony concerning the case at hand.
CONCLUSION
The Honorable Justice Judith Ann Lanzinger dissented to the majority opinion in Haines. Judge Lanzinger found it “mystifying” that the majority failed to recognize the limiting language within Koss and the codified ordinances. Id., at ¶ 68. Finally, Judge Lanzinger observed that the majority opinion transforms “a shield for the defense into a sword for the prosecution.” Id., at ¶ 72.
If you have questions concerning Battered Woman Syndrome and its relation to criminal law and procedure in Ohio, please feel free to contact Cleveland, Ohio Attorney Ron Frey at (440) 537-0299 for a free consultation.
