Opinion
November 22, 2000.
Jesse A. Young, Brooklyn, for the defendant.
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Robert E. Lamb of Counsel), for plaintiff.
MEMORANDUM
This court has previously held that the defendant may introduce into evidence expert testimony regarding Battered Woman Syndrome (BWS). The facts of this case have been fully set forth in this court's prior decision (People v. Seeley, 179 Misc.2d 42, 44-45). In the prior decision, the court did not set forth the scope of permissible expert testimony when the defendant offers such testimony as proof of self defense.
The court realizes that this is a misnomer. The Syndrome applies to men as well to women and to individuals who are not married. Some courts prefer Battered Person Syndrome or Battered Syndrome. Since most courts use the phrase Battered Woman Syndrome this court will also continue to use it.
In other cases before this court when the People have sought to introduce expert testimony about BWS, the court has limited the scope of such testimony to general information about BWS and prohibited the People from eliciting testimony that the victim/complainant was a Battered Person. The People now urge the court to rule to limit similarly the defendant's expert. The court has orally informed both parties that it would permit the defense expert to testify that the defendant was a Battered Person. This decision explains the court's reasoning.
The court has also ruled that if the defendant offers evidence that she is a Battered Person, then the People are entitled to have her examined by an expert of the prosecution's choosing. This decision also explains this holding.
Many of the cases found by this court was through examining the citations in Admissibility of Expert Testimony Concerning Domestic-Violence Syndrome to Assist Jury in Evaluating Victim's Testimony, 57 ALR5th 315, and Admissibility of Expert or Opinion Evidence of Battered-Woman Syndrome on Issue of Self-Defense, 58 ALR5th 749. A huge resource for case law in this area was also found in 11 Wis. Women's L. J. 75. While the cases cited therein were extremely helpful, the court does not agree with the author's interpretation of all those cases. Many other articles and law journals were examined by the court.
Evidence — Rules
In general, all evidence which has a tendency to prove a material fact in an action is admissible unless precluded by some evidentiary rule (People v. Wilder, 93 N.Y.2d 352, 357; People v. Buie, 86 N.Y.2d 501, 509; People v. Lewis, 69 N.Y.2d 321, 325). If the probative value of the relevant evidence is outweighed by the prejudice to one of the parties then the relevant evidence should be excluded (People v. Alvino, 71 N.Y.2d 233, 242; People v. Conyers, 52 N.Y.2d 454, 459; People v. Molineux, 168 N.Y. 264). A defendant's right to cross-examine or confront a witness against an accused impacts on the People's right to present relevant evidence (Ohio v. Roberts, 448 U.S. 56, 63).
Additionally, a defendant's constitutional right to present evidence that is exculpatory plays an important role in deciding evidentiary issues. This constitutional rule may require the admission of evidence that would ordinarily be inadmissible (Chambers v. Mississippi, 410 U.S. 284); People v. Carroll, (Crt. of Appeals, Nov. 21, 2000) in N YL.J. Nov. 22, 2000 at p. 28, col. 3
Because of the principle that a court must weigh the probative value of relevant evidence against the prejudice to the defendant, the defendant's constitutional right to confront witnesses and to present exculpatory evidence, the rules of evidence are applied somewhat differently when the People offer relevant evidence than when the defendant offers relevant evidence. Thus, a defendant may have a constitutional right to have reliable hearsay evidence admitted (People v. Robinson, 89 N.Y.2d 648), while the People would be precluded from introducing hearsay evidence because of a defendant's right to confront a witness against him/her (Ohio v. Roberts, supra, 448 U.S. 56). Similarly, a court should preclude cross-examination of a defendant about a prior conviction where its probative value is outweighed by the prejudice (People v. Sandoval, 34 N.Y.2d 371). The court's right to preclude a defendant's cross examination of a victim/complainant, however, is limited by the constitutional right to confront witnesses (People v. Allen, 67 A.D.2d 558, aff'd on opinion below 50 N.Y.2d 898); see also People v. Carroll, supra). Also, the courts have stated that where the defendant seeks to introduce a declaration that is alleged to be against the declarant's penal interest the standard for admissibility is "more lement" than when the People seek to introduce a declaration against penal interest (People v. Fonfrias, 204 A.D.2d 736, 738; People v Company, 252 A.D.2d 734, 735).
The rules are different when the People offer expert testimony about BWS, than when the defendant offers such evidence (Commonwealth v. Kacsmar, 421 Pa. Super. 64, 75, 78; 617 A.2d 725, 730, 732, see also, Using Battered Woman's Syndrome Evidence in the Prosecution of a Batterer, 76 Iowa L. Rev. 553).
Expert Testimony
Expert opinion testimony partially invades the province of the jury to draw conclusions from the facts (People v. Miller, 91 N.Y.2d 372, 379; People v. Jones, 73 N.Y.2d 427, 431; People v. Cronin, 60 N.Y.2d 430, 432). Nonetheless, such testimony is admissible where the conclusions to be drawn from the facts "depend on professional or scientific knowledge or skill not within the range of ordinary training or intelligence" of the average juror People v. Carroll, 95 N.Y.2d 375, supra;(Dougherty v. Milliken, 163 N.Y.2d 527, 533; see also, People v. Cronin, supra, 60 N.Y.2d 432). In determining the admissibility of expert testimony a court must determine the "reason why the testimony is offered" and the helpfulness, relevance and potential for prejudice of the proposed testimony (People v Taylor, 75 N.Y.2d 277, 292; see also, People v. Scarola, 71 N.Y.2d 769, 779). Expert testimony that a crime has been committed or to bolster a witness' credibility is improper (People v. Bennett, 79 N.Y.2d 464, 473).
The admissibility of expert testimony is in the sound discretion of the trial court (People v. Fratello, 92 N.Y.2d 565, 573).
Thus, the same BWS testimony may be admissible if offered for one reason or purpose, but inadmissible if offered for a different reason or purpose (State v. Stringer, 271 Mont. 367, 897 P.2d 1063, 1068-1069, discussing State v. Dannels, 226 Mont. 807, 734 P.2d 188).
Battered Woman Syndrome
Battered Woman Syndrome is not a mental defect or disease (Commonwealth v Conaphan, 48 Mass. App. Ct. 304, 318, 720 N.E.2d 48, 59; United States v. Johnson, 956 F.2d 894, 899; Bechtel v. State, 840 P.2d 1, 7 [Okl]; State v. Myers, 239 N.J. Super. 158, 169, 570 A.2d 1260, 1266; cf, People v. Erickson, 57 Cal.App.4th 1391, 1402, 67 Cal.Rptr.2d 740, 747). It is a subcategory or subset of Post-Traumatic Stress Syndrome (Campbell v. State, 999 P.2d 649, 660 [Wyo]; State v. Grecincier, 569 N.W.2d 189, 193 [Minn]; People v. Christel, 449 Mich. 578, n15 at 588; 537 N.W.2d 194, 200; State v. Riker, 123 Wn.2d 351, 357, 869 P.2d 43, 46; State v. Bednarz, 179 Wisc2d 460, 467, 507 N.W.2d 168, 172; State v. Furlough, 797 S.W.2d 631, 650 [Tenn]). The battered woman's syndrome is identified by a series of common characteristics that appear in persons who have been abused for an extended period of time by the dominant figure in their lives (Commonwealth v. Pike, 431 Mass. 212, 221, 726 N.E.2d 940, 947; Nixon v. United States, 728 A.2d 582, 584 [D.C.]; People v. Ehis, 170 Misc.2d 945, 950; Peonle v Humphrey, 13 Cal.4th 1073, 1083-1 084, 921 P.2d 1, 756 Cal.Rptr.2d 142, 148-149; Robinson v. State, 308 S.C. 74, 76, 417 S.E.2d 88, 90; People v. Yaklich, 833 P.2d 758, 760 [Col]; State v. Kelly, 97 N.J. 178, 193, 478 A.2d 364, 371). These characteristics include fear, hyper-suggestibility, isolation, guilt, and emotional dependency, which culminate in a person's belief that escape from the batterer is impossible(Robinson v State, supra, 308 SC, at 76, 417 S.E.2d, at 90; Commonwealth v. Stonehouse, 521 Pa. 41, 62 n. 6, 555 A.2d 772, 783 n. 6 [citing Comment, The Battered Spouse Syndrome as a Defense to a Homicide Charge Under the Pennsylvania Crimes Code, 26 Vill.L.Rev. 105]).
See Battered Women: A Perspective on Injustice, 1 Cardozo Women's Law J. 1 (1993).
Violent behavior directed against women often occurs in cycles consisting of three stages (People v. Emick, 103 A.D.2d 643, 654; Robinson v. State, supra, 308 Sc, at 76, 417 S.E.2d, at 90; State v. Kelly, supra, 97 NJ, at 193, 478 A.2d, at 371; Nixon v United States, supra, 728 A.2d, at 586; People v. Ellis, supra, 170 Misc.2d, at 950; State v Bednarz, supra, 179 Wisc2d, at 465-466, 507 N.W.2d, at 171). During the first stage, there is mostly verbal abuse, with minor physical abuse. Stage two is characterized by an escalation of the abuse until there is an explosive instance where the woman is physically beaten up. Stage three consists of a respite, with no abuse for a short period of time. This cycle continues throughout the relationship with a decrease in the time between the batterings. (id., Commonwealth v. Lazarovich, 410 Mass. 466, 471, 574 N.E.2d 340).
See Lenore E. Walker, The Battered Women, (1979); but see "Myths and Misconceptions About Domestic Violence", 16 Pace L. Review 41 (1995) and "Crazy Women, Unharmed Men and Evil Children: Confronting the Myths About Battered People Who Kill Their Abusers and the Argument for Excluding Battered Syndrome Self-Defense to All Victims of Domestic Violence, 70 5. Cal. L. Rev. 337 (1995).
Some "battering victims respond to the violence they experience with overwhelming terror, shame, and guilt, as well as condemnation due to their inability to leave the situation" (State v. Ciskie, 110 Wn. 263, 273, 751 P.2d 1165, 1170-1171, citing Ferraro Johnson, How Women Experience Battering: The Process of Victimization, 130 Soc.Probs. 325 [1983]). Other victims attempt to stop the beatings "by hiding, running away, counter-violence, seeking help of friends and family, going to a shelter, and contacting the police" (People v. Humphrey, supra, 13 Cal4th, at 1078, 921 P.2d, at 3, 56 Cal Rptr2d, at 145).
BWS — Use by the People
Most frequently the People seek to introduce expert testimony about BWS to explain a recantation or a prior inconsistent statement (Arcoren v. United States, 929 F.2d 1235, 1238-1241; People v. Ehis, supra, 170 Misc. 2 d, at 950; Odom v. State, 711 N.E.2d 71, 76 [Ind]; State v. Clark, 83 Haw. 289, 298, 926 P.2d 194, 203, see, People v Hryckewicz, 221 A.D.2d 990, 991). Similarly, courts have permitted the People to introduce evidence of BWS to explain a victim/complainant's delay in informing law enforcement agents of a crime (State v. Grecinger, supra, 569 N.W.2d 189 [Minn]; State v. Ciskie, supra, 110 Wn. 263, 751 P.2d 1165). However, when permitting the People to introduce expert testimony of BWS for the above purposes, the majority of states have prohibited the People from introducing evidence that the victim/complainant is in fact a Battered Person (State v. Grecinger, supra, 569 N.W.2d, at 194 [Minn]; Nixon v United States, supra, 728 A.2d, at 592 [D.C.]; People v. Christel, supra, 449 Mich, at 590-591, 537 N.W.2d, at 201; Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, 644, 679 N.E.2d 240; compare with State v. Frost, 242 N.J. Super. 601, 577 A.2d 1282; see also; State v. Ciskie, supra, 110 Wn., at 280, 751 P.2d, at 1174). The reason given is that there is too much danger that the jury will infer from the BWS testimony that defendant committed the crime charged or that the jury will unduly use BWS testimony to improperly bolster the victim/complainant's credibility (id.; see also, People v Humphrey, supra, 13 Cal4th, n5 at 1088, 921 P.2d, n5 at 10, 56 Cal Rptr2d, n5 at 152). Thus, the courts hold that the probative value of the testimony that the victim/complainant is a Battered Person is outweighed by the prejudice to the defendant.
As stated earlier, New York also prohibits expert testimony that would establish that defendant committed the charged crime or expert testimony that would unduly bolster a witness' credibility (People v. Bennett, supra, 79 N.Y.2d, at 473). This is why the Court of Appeals did not allow testimony that a victim/complainant suffers from rape trauma syndrome (People v. Taylor, supra, 75 N.Y.2d 277).
In all the previous cases before this court, the court barred the People's expert from offering an opinion that the victim/complainant is a Battered Person, but permitted general testimony about BWS because the People offered the expert's testimony to explain a recantation or an inconsistent statement or unusual behavior and for that purpose the permitted testimony was sufficient.
This is not to say that should the People offer the testimony of an expert that a victim/complainant is a Battered Person that the court will always preclude such testimony. Such testimony may be admissible to rebut a claim of mistake or accident or to prove the identity of the perpetrator (People v. Henson, 33 N.Y.2d 63, 74, see also, People v. Eisenman, 39 N.Y.2d 810; People v. Pope, 241 A.D.2d 756, 758). This type of testimony may also be admissible as corroboration of a crime needing corroboration (Matter of Nicole V, 71 N.Y.2d 112, 121-122).
In conclusion, the scope and admissibility of BWS testimony offered by the People depends on the reason or purpose for which the evidence is being offered and whether the probative value of the evidence outweighs the potential prejudice to the defendant (see, People v. Barrett, 189 A.D.2d 879, 880-881).
BWS — Use by Defendant
Battered Woman Syndrome is not a defense to a criminal act (Boykins v. State, 995 P.2d 474, 478 [Nev]; Witt v. State, 892 P.2d 132, 144 [Wyo]; State v. Daws, 104 Ohio App.3d 448, 470, 662 N.E.2d 614, 622; Commonwealth v. Miller, 430 Pa. Super. 297, 313, 634 A.2d 614, 622; People v. Yaklich, supra, 833 P.2d, at 761 [Col]; State v. Koss, 49 Ohio St.3d 213, 217, 551 N.E.2d 970, 974; State v. Hodges 293 Kan. 63, 73, 716 P.2d 563, 570). It is evidence of a defendant's state of mind or evidence relevant to a defense (id.). Among other issues in New York BWS has been admitted as evidence of justification (People v. Ciervo, 123 A.D.2d 393 394; People v. Hoy, 122 A.D.2d 618, 619; People v. Emick, supra, 103 A.D.2d, at 644; People v. Torres, 128 Misc.2d 129). While evidence of BWS is generally recognized as admissible in cases involving self defense the scope of the expert's testimony has resulted in divergent views.
BWS may be evidence in a child neglect case, evidence of coercion, relevant to sentence considerations, and may be relevant in a divorce proceeding. The use of BWS is only limited by the imagination of counsel.
The author of 11 Wisc. Women's L.J. 75 asserts that ninety percent of the States permit evidence of BWS in cases in which defendant claims self-defense.
A few States prohibit a defense expert from testifying that defendant is Battered Person (Boykins v. State, supra, 995 P.2d, at 479 [Nev]; People v. Wilson, 194 Mich. App. 599, 604-605, 487 N.W.2d 822, 825; State v. Burtzlaff, 493 N.W.2d 1, 5 [SD]; State v Hennum, 441 N.W.2d 793, 799 [Minn]). These States hold that expert testimony that defendant is a Battered Person impinges on the jury's right to determine the ultimate facts. Further, it is felt that general information about BWS is sufficient for the trier of fact to come to a conclusion about the reasonableness of a defendant's beliefs or fears regarding the potential imminency of injury.
Many States permit or require that the trial court allow a defense expert to testify that a defendant is a Battered Person (State v. Palmer, 2000 WL 311916 [Oh]; Bishop v State, 271 Ga. 291, 293, 519 S7E2d 206, 208; State v. Kelly, supra, 97 NJ, at 207, 478 A.2d, at 378; State v. Hickson, 630 So.2d 172 [Fla]; Witty State, supra, 892 P.2d, at 138 [Wy]; State v. Pisciotta, 968 S.W.2d 185, 189 [Mo]; State v. Janes, 121 Wn. 220, 240-241; 850 P.2d 495, 505-506; Commonwealth v. Craig, 783 S.W.2d 387, 389 [Ky], overruled on other grounds Dwyer v. Commonwealth, 816 S.W.2d 647; People v Humphrey, supra, 13 Cal4th, at 1079, 921 P.2d, at 4, 56 Cal Rptr2d, at 145, see also, State v. Steele, 178 W. Va. 330, 336-337, 359 S.E.2d 558, 565 and cases cited therein). Some of these States have statutes that authorize such testimony. Other States believe that defendant has a constitutional right to present all reliable and relevant testimony. These States find that expert testimony that defendant is a Battered Person is a material fact beyond the ken of the ordinary juror. These States hold that because a jury must determine whether a defendant reasonably believed that the victim is about to use physical force, they must have expert testimony that a defendant is a Battered Person. This expert testimony is relevant to a defendant's subjective belief of the victim's threatened use of physical force, as well as to a defendant's subjective belief that the use of physical force against the defendant is imminent.
The Court of Appeals in People v. Goetz, infra, 68 N.Y.2d 96, 113 cited Kelly in support of its adoption of the subjective-objective test in New York for the justification defense.
It is important to remember that New York does not bar testimony by an expert from testifying regarding the "ultimate question" provided that such expert testimony is beyond the ken of the ordinary juror (People v. Carroll, supra; People v. Cronin, supra, 60 N.Y.2d at 432; People v. De Sarno, 121 A.D.2d 651, 654). Thus for this reason the objection of the few states that bar such testimony is not valid in New York.
New York's justification or self defense law, like the many States which permit expert testimony that defendant is Battered Person, has both a subjective and an objective element (People v. Goetz, 68 N.Y.2d 96). This requires the jury to place itself figuratively in the defendant's shoes and to determine the reasonableness of the defendant's belief from the facts and circumstances as the defendant perceived them (People v. De Sarno, supra, 121 A.D.2d, at 653; People v. Montanez, 118 A.D.2d 414, 416). In order to determine what constituted "defendant's shoes," the jury must know whether or not a defendant is a Battered Person.
This court therefore ruled that defendant's expert will be permitted to testify that defendant is a Battered Person (People v. De Sarno, supra, 121 A.D.2d, at 654-655 ; People v. Colberg, 182 Misc.2d 798, 802).
This was apparently permitted by the lower court in De Sarno.
In Colberg. the court announced that it would permit such testimony without discussing its rationale.
Ordering Defendant To Undergo Psychiatric Examination by People's Expert
One State has prohibited the People from examining a defendant who has given notice that testimony regarding BWS will be offered at trial as part of a self defense claim (State v. Hennum, supra, 441 N.W.2d 793 [Minn]). The underlying rationale of the case is that since defense expert will only testify to the general characteristics of BWS and not that the defendant is a Battered Person, an examination of defendant is unwarranted. The court reasoned that the People are not required to rebut that defendant is a Battered Person, because no such testimony will be permitted.
Many States have required a defendant to undergo psychiatric evaluation by a People's expert when a defendant gives notice that there is an intent to introduce expert testimony regarding BWS to establish self defense. (State v. Hess, 252 Mont. 205, 210-214, 828 P.2d 382, 386-388; State v. Briand, 130 N.H. 650, 652-657, 547 A.2d 235, 237-240; State v. Myers, supra, 239 NJ Super, at 169-170, 570 A.2d, at 1266; State v. Manning, 74 Ohio App.3d 19, 24-25, 598 N.E.2d 25, 28; State v. Hickson, supra, 630 So.2d 172 [Fla]; Bechtel v. State, supra, 840 P.2d, at 9 [OkI]) The theory of these cases is that since defendant's state of mind is an issue in the case, the People have a right to rebut any testimony offered by defendant on such issue. The courts further hold that defendant, by placing his/her state of mind in issue, waives all statutory and constitutional rights or privileges.
It is interesting to note that some cases have required a victim/complainant to undergo examination by defendant's expert, where the People offer BWS testimony to explain the actions of a victinil complainant (State v. Doremus, 2 Neb. App. 784, 787-791, 514 N.W.2d 649, 651-654, and cases cited therein).
In New York, CPL 250.10(2) requires that a defendant serve notice of intent to present psychiatric evidence within thirty days of pleading not guilty. Once the People receive such notice, CPL 250.10(3) authorizes the prosecution to make a motion for an order requiring defendant to submit to an examination by a psychiatrist selected by the People. CPL 250.10(1) defines psychiatric evidence as evidence of a "mental disease or defect." Earher in this opinion, the court has stated that from a scientific view BWS is not a mental disease or defect. While this has been the finding of the scientific community, courts have broadened the definition of "mental disease and defect" contained in CPL 250.10 (People v. Rossakis, 159 Misc.2d 611, 614) and included any mental infirmity or "trauma syndrome" (People v. Berk, 88 N.Y.2d 257, 265; see also, People v. Kruglik, 256 A.D.2d 592, 593). As stated earlier BWS is a subset or subcategory of post-traumatic stress syndrome and thus is a "trauma syndrome" within the definition of CPL 250.10 (1) (People v. Rossakis, supra, 159 Misc.2d 611; see also, People v. Fratt, 146 Misc.2d 77).
In People v. Herrera ( 219 A.D.2d 511)' the court held that it was not an abuse of discretion to preclude defendant's expert from testifying about BWS, inter alia, because "defendant failed to cooperate with the prosecution's psychiatrist" (p. 512). Apparently, the Appellate Division, First Department, felt that the People had a right to have their expert examine a defendant when testimony about BWS is being presented at trial.
Even if the court felt that BWS is not covered by the definition of "mental disease or defect" in CPL 250.10, the court has the inherent power to order a defendant to submit to an examination by the People's psychiatrist (People v. Segal, 54 N.Y.2d 58, 65; People v. DelRio, 220 A.D.2d 122, 128; People v. Atwood, 101 Misc.2d 291). This court would exercise its inherent power to provide fairness and equity to the People by permitting an examination of the defendant.
For these reasons the court ruled that if the defendant intends to introduce evidence that she is a Battered Person then the People will have the right to have her examined by an expert of their choice.
The Court notes that under this decision, the defendant is now required to comply with CPL § 240.30 (1)(a) and to turn over to the People any and all documents or reports prepared by the defendant's expert concerning the examination of the defendant as a person suffering from BWS.