Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault
ASSESS ALL OTHER PHYSICAL EVIDENCE
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- 3.7. ASSESS ALL POTENTIAL WITNESSES
- 3.7.2.Experts
- 3.7.2.1.Admissibility of Expert Testimony
- 3.7.2.2. Expert Testimony on Rape Trauma Syndrome
- 3.7.2.3. Expert Testimony on Battered Women Syndrome
3.6. ASSESS ALL OTHER PHYSICAL EVIDENCEReview all reports and interviews to assess the quality and quantity of corroborating physical evidence in the case. Insure all evidence is properly secured, and the proper chain of evidence is recorded and maintained. Consider:
It takes merely 11 pounds of pressure on the victim’s throat for 10 seconds to render her unconscious, and only 30 pounds of pressure to render her brain dead. Seldom are ligature marks apparent from the such strangulation efforts. In a study in San Diego, only 20% of strangulation victims had marks, and of those who did, the marks appeared one to two days after the assault. You must be careful to record any other physical evidence of the strangulation. Are there marks on the victim’s throat, from her own hands trying to claw off the perpetrator’s hands? Following the incident, is the victim’s voice raspy? Following the incident, was the victim light headed or faint? Following the incident, did the victim’s throat swell? (Always have the victim taken to the hospital; the throat swells from the outside in, and a victim who is not treated may die in her sleep.) (From a presentation by Lt. Det. Paul Porter of the Randolph Massachusetts Police Department, at the Sixth Annual Statewide Domestic Violence Conference, Hyannis, May 2001.)
e.g.: Why does the perpetrator have a bite mark on his chest? Because he had the victim in a head-lock, strangling her, and her only recourse in struggling to get free was to use her teeth where her teeth were – against his chest.
Blood pattern experts can provide critical evidence to precisely reconstruct the perpetrator’s actions. The size and shape of the blood spray, and its angle, can provide the expert with enough information to determine the relative positions of the victim and the assailant.
If evidence is correctly preserved (through photographs taken with a scale, and through detailed observations of the shape and coloring of the mark), forensic odontologists can match a bitemark to a defendant based on the shape, size and spacing of his teeth.
lay out of the apartment or house lay out of the neighborhood
locations where she was struck location of bruises, cuts positions during the assault
The general setting; Anything disrupted or broken
Authenticate for admissibility either through identification of the handwriting (prior familiarity, search warrant, or use of experts for comparison) or identification of the typed document (establish access to a certain computer)
3.7. ASSESS ALL POTENTIAL WITNESSES3.7.1.Who to Look ForHave all possible witnesses been contacted? Remember that for all domestic violence cases, and for non-stranger sexual assaults, your potential witnesses should not be confined to people present at the scene of the crime and its aftermath. You also want to investigate all persons who spoke to the victim before, during or after the crime, and anyone who may be able to testify about the nature of the relationship, any prior abuse, the defendant’s state of mind, his opportunity to commit the crime, behavior that sheds light on possible motives, statements he has made at any time regarding the victim, statements or actions revealing his intention or desire to commit the crime, and statements made by the victim which will fall within a hearsay exception. Also try to find testimony which identifies the defendant as the perpetrator (in addition to the victim’s statement), in order to corroborate and/or to replace the victim’s testimony should she be unavailable at trial. Consider:
incident
3.7.2.ExpertsConsider expert testimony, not only to cover forensic subject matters, but also to explain responses and characteristics commonly displayed by crime victims. Battered Woman Syndrome and Rape Trauma Syndrome are discussed below. Other pertinent subjects for expert testimony include “Frozen Fright Syndrome,” in which, as the name implied, the victim is too frightened to do anything at all, including fighting off an assailant, and “Stockholm Syndrome,” in which the victim identifies with and becomes attached to the perpetrator(s). Patty Hearst was a famous example of this syndrome. 3.7.2.1.Admissibility of Expert TestimonyTestimony of an expert as to matters within his expertise are admissible whenever it will aid the jury in reaching a decision. The test is whether the testimony will assist the trier of fact in determining a fact in issue or in understanding the evidence. Commonwealth v. Dockham, 405 Mass. 618, 628 (1989). When a subject matter before the jury is not within the scope of ordinary experience, and therefore the jury is not equipped to draw inferences justified by the facts, it is permissible for experts --persons specially versed in the subject-- to testify as to what conclusion should be drawn from facts. Liacos, Handbook of Massachusetts Evidence (7th Ed. 1999), § 7.6, at 384-385, citing Commonwealth v. Dockham, supra, and LeBlanc v. Ford Motor Co., 346 Mass. 225, 231-232 (1963). Expert testimony may be appropriate, in the discretion of the trial judge, even where it is not necessary. Id. at 385-86. The expert’s testimony is not binding; the jury may decline to adopt any one or all of the expert’s conclusions. Id. at 388. If the opinion is a guess or a mere assertion of a possibility of a causal connection, such opinion is insufficient alone to sustain a finding. Id. at 391. An expert may gain his knowledge of the particular facts in dispute from facts that are not in evidence, but which would be admissible in evidence. Dept. of Youth Services v. A Juvenile, 398 Mass 516 (1986). Hearsay may be used by an expert for general facts that go into the making of expertise, but not for knowledge as to the specific facts in controversy. Soares v. Stop & Shop Companies, Inc., 16 Mass. App. 979, 980 (1983). The fact that a witness has been exposed to hearsay does not imply that he has relied on it in the formation of his opinion. Hanover Ins. Co. v. Talhouni, 413 Mass 781 (1992). A judge has wide discretion in qualifying a witness to offer expert opinion. Commonwealth v. Devlin, 365 Mass. 149, 152 (1974); Commonwealth v. Avellar, 416 Mass. 409, 417 (1993). The decision to qualify a witness as an expert on a particular matter that is within that witness’ field of expertise will not be disturbed absent an abuse of discretion or error of law. Commonwealth v. Johnson, 410 Mass. 199, 202 (1991). “The crucial issue is whether the witness has sufficient education, training, experience, and familiarity with the subject matter of his testimony.” Lerch v. Daniels, 401 Mass. 65, 68 (1987). If a jury can form a reasonable opinion without the aid of expert testimony the testimony may be excluded; however, the judge in his discretion may admit expert testimony even where it is not essential. Commonwealth v. Butynski, 339 Mass. 151, 153 (1959). In Massachusetts, the rule for admitting expert opinion based on scientific theory or process (as distinct from expert opinion based on experience, training, and observation) was largely framed according to the “general acceptance” test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test admits the opinion testimony of a scientific expert only if the methodology on which the opinion is based is generally accepted as reliable by specialists in the field. If a scientific theory or technique is a subject of debate in the scientific community, and differences exist among reputable scientists, the Frye test excludes the expert testimony without assessing the merits of the underlying dispute. In 1993, the Supreme Court abandoned Frye’s general acceptance test and adopted the more liberal test of “relevancy,” pursuant to Federal Rule of Evidence 702, in Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). That same year, the Massachusetts Supreme Judicial Court accepted the “basic reasoning” of Daubert, in Commonwealth v. Lanigan (II), 419 Mass. 15, 24-26 (1994). A judge must assess “whether the reasoning or methodology underlying the testimony is scientifically valid and that the methodology properly can be applied to the facts in issue.” Id. at 26. However, Daubert‘s broader standard doesn’t mean there are “no limits on the admissibility of purportedly scientific evidence.” Daubert, supra, at 589. Under Daubert, the trial judge must ensure “junk science” is not admitted. Accordingly, a witness must be shown to be sufficiently qualified by “knowledge, skill, experience, training, or education” before being permitted to give expert testimony and the judge must “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589: (T)he trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue. Daubert, 509 U.S. at 592-593. “The ultimate test … is the reliability of the theory or process underlying the expert’s testimony,” even if “general acceptance” has not yet been achieved. Commonwealth v. Lanigan,(II) 419 Mass. 15, 24 (1994). Frye is not dead, as the SJC “suspect(s) that general acceptance in the scientific community will continue to be the significant, and often the only issue.” Commonwealth v. Lanigan (II), 419 Mass. 15, 26 (1994). Part of the rationale for the rule is that a scientific theory may be demonstrably reliable, but too novel to have gained thorough review in scientific literature and thus demonstrable general acceptance in the scientific community. Canavan’s Case, 432 Mass. 304, 311-312 (2000). The proper foundation for expert opinion evidence is:
Liacos, section 7.7.2, at 400-401 In summary, in determining whether an expert’s testimony will be allowed, the court will inquire:
Sources of the Expert’s Knowledge:
The facts assumed in hypothetical questions put to the expert must be “supported either by admitted facts or by the testimony of other witnesses already given or to be given at the trial, or on facts derived partly from one source and partly from another.” Commonwealth v. Russ, 232 Mass. 58, 73 (1919). The expert may opine based on use of facts or data traditionally relied upon by experts, “if the facts or data are independently admissible,” even if they have not in fact been admitted. Department of Youth Services v. A Juvenile, 398 Mass. 516, 530 (1986). Scope of the Expert’s testimony:
Scope of Cross-Examination of the Expert:
The Effect and Weight of the Expert’s Testimony:
3.7.2.2. Expert Testimony on Rape Trauma SyndromeSEE SAMPLE MOTION, SECTION 6 Rape trauma syndrome is recognized by the psychiatric profession as a form of post-traumatic stress disorder that often manifests itself in identifiable symptoms common among women (and children) who have been raped or sexually assaulted. See Burgess & Holstrom, “Rape Trauma Syndrome”, 131 Am.J.Psychiatry 981 (Sept. 1974). Expert testimony concerning rape trauma syndrome has been held sufficiently relevant to be admissible. Commonwealth v. Mamay, 407 Mass. 412 (1990).
and sexual assault generally; the expert shouldn’t testify that a victim’s symptoms were in fact caused by sexual abuse, or otherwise vouch for her truthfulness. See
SEE SAMPLE MOTION, SECTION 6. The term “Battered Woman Syndrome” was popularized by psychologist Lenore Walker in her book, The Battered Woman (New York: Harper and Row, 1979). The term refers to typical response patterns of women who are involved in abusive relationships. Many of these responses run counter to what is commonly perceived to be “normal” behavior, that is, that victims of assaultive partners or spouses would naturally choose to end an abusive relationship. Battered woman syndrome experts attempt to explain why, in fact, victims often remain in abusive relationships. The syndrome is described in terms of either a “learned helplessness” response or as a type of post-traumatic stress disorder. (Much of Lenore Walker’s research was incorporated by the Diagnostic and Statistical Manual of Mental Disorders IV , in which the syndrome is recognized as a subcategory of post-traumatic stress disorder.) BWS Testimony Concerning a Defendant’s Allegations of Self-Defense Expert testimony on battered woman syndrome is admissible in most jurisdictions to support a defendant’s claims that she, as an abused woman, killed or injured her abuser in self-defense or duress. In Massachusetts, the testimony has been ruled admissible in such circumstances by judicial decree as well as by statute: By statute, expert testimony is available to a defendant charged with murder, manslaughter, or assault of partner or spouse, where the defendant has claimed self-defense, duress, or coercion. The testimony may be used to establish “the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent ...” M.G.L. c. 233, § 23F. Where the claim of self-defense is in issue, and there is evidence of a pattern of abuse of the defendant by the victim, expert testimony on common patterns in abusive relationships and the typical emotional and behavioral responses of persons who are battered may be admissible. Commonwealth v. Rodriguez, 418 Mass. 1, 7 (1994). Expert testimony concerning the profile of a typical “abusive male” is inadmissible to show Battered Woman Syndrome at a trial of indictments that the defendant assaulted his former girlfriend on two occasions. Commonwealth v. Roche, 44 Mass. App. Ct. 372 (1998). Where the voluntariness of the defendant’s statement was a live issue at a motion to suppress and at trial, the defendant was allowed to present an expert on Battered woman Syndrome. Commonwealth v. Crawford, 429 Mass. 60 (1999). BWS Testimony Concerning a Victim’s Behavior: The Massachusetts Appeals Court addressed the question of admissibility of expert testimony on battered woman syndrome when the victim is not a defendant, in Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 639 (1997). The Court held that expert testimony concerning Battered Woman Syndrome is admissible to explain behavioral or emotional characteristics common to most victims of battering and to show that an individual victim or victim/witness has exhibited similar characteristics. Goetzendanner involved a victim who was in an abusive relationship, which she tried to end several times. Following a severe beating by the defendant, the victim became distraught, depressed and obsessed with trying to understand why the defendant had beaten her. She had the restraining order against the defendant removed, recanted her statements, and attributed the attack to a former boyfriend. After admitting herself to a residential drug and alcohol treatment program she reaffirmed the defendant’s role in attacking her. The Commonwealth offered expert testimony from Karla Digirolamo, the Executive Director of the New York State Office for Prevention of Domestic Violence, on the general characteristics of women with battered woman’s syndrome. The expert testified about domestic violence generally and battered woman syndrome specifically. “She explained the cyclical nature of abusive relationships, the effect drugs and alcohol have upon those relationships, and the survival tactics typically exhibited by battered women, including their tendency to leave and then return to the batterer many times before finally ending the relationship.” Id, at 641. The defendant objected to the expert testimony at trial, and appealed its admission. Citing Commonwealth v. Mamay 407 Mass. 412, 421-422 (1990) as analogous, Second Assistant District Attorney Anne M. Kendall of Berkshire County argued on appeal that the subject matter was proper expert testimony which helped explain why a victim or a witness may have acted in a particular way. (see section 3.7.2.3, infra: in Mamay, expert testimony on rape trauma syndrome was held admissible). The decision affirmed the conviction and the denial of the defendant’s motion for a new trial, concluding that the expert testimony on battered woman’s syndrome was properly admitted: ...[T]he over-all ends of justice and crime prevention would be ill-served if we were to deny the use of evidence of BWS [battered woman syndrome] to a victim seeking redress through the legal system for her injuries, only to allow that same evidence after she finally has taken matters into her own hands and is then placed on trial for killing or assaulting her abuser. We conclude that, where relevant, evidence of BWS may be admitted through a qualified expert to enlighten jurors about behavioral or emotional characteristics common to most victims of battering and to show that an individual victim or victim witness has exhibited similar characteristics. Goetzendanner, 142 Mass. App. Ct. 639, 645-646 (1997). In Commonwealth v. Crawford, 429 Mass. 60 (1999), the Court quoted Goetzendanner to support the proposition that the “pattern of behavioral and emotional characteristics common to the victims of battering lies beyond the ken of the ordinary juror and may properly be the subject of expert testimony.” But see Commonwealth v. Oliveira, 431 Mass. 609, 613 (2000), in which the Commonwealth’s argument that “there’s a variety of reasons, social and economic reasons why women stay with men who abuse them and their children” was proper, even absent expert testimony, because “in the context of the case the argument was grounded in common sense not expertise.” Sample Predicate Questions for Qualifying a BWS Expert
(The witness may choose to discuss the recognition by the Diagnostic and Statistical Manual of Mental Disorders IV, the Surgeon General’s Office’s work in recognizing the battering of women as a significant public health problem, the American Medical Association’s response to the phenomenon, the level of recognition by medical professionals in general, and the most respected and influential public health studies on the issue.)
1) that the proposed expert testimony is beyond jurors common knowledge 2) that there is recognition is the scientific community of Battered Woman Syndrome 3) that there is an appropriate basis in the scientific community upon which the expert opinion may rest.
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