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The defendant opposes the calling of the expert


The complainant and the criminal defendant dated periodically for a period of time encompassing the past 13 years. The instant charge stems from August 25, 2003, when the defendant is alleged to have picked up the complainant, thrown her over a couch, pushed her to the ground, and stomped on her groin, thereby causing her to allegedly suffer bruised ribs and a fractured coccyx.

In support of their application the complainant’s allegations of physical and psychological abuse by the defendant over a prolonged period of time was detailed. Included are litanies of alleged violent acts directed at her by the defendant, from 1991 to 2003. The alleged violence included threatening to kill the complainant on numerous occasions, repeatedly beating her, urinating on her, various acts of forcible sex, and constant berating of her. Although these acts occurred over a period of 13 years, except for brief sporadic periods of separateness, the complainant did not leave the defendant nor immediately seek protection from the police. Drug possession was not an issue.

The complainant’s counsel are prepared to proceed to trial, and in so doing, argue that expert testimony would aid the jury in the understanding of the complainant’s delay in reporting the August 25th incident. Further, they specifically emphasized that their expert would be called to give an opinion in support of their contention that the complainant suffers from battered woman syndrome. The complainant’s claim that the expert’s testimony will explain why the defendant abused the complainant woman in front of another prior victim of his sex abuse and that the expert’s testimony is necessary to explain why the complainant waited nearly three months to report the incident. They contend that the expert’s testimony is relevant to explain the psychological effects of the defendant’s abuse toward the complainant and her perplexing behavior patterns, in essence, her continuous contact with the defendant.

The defendant opposes the calling of the expert, arguing, in essence, that the expert’s testimony is not appropriate since the complainant was not a battered woman, but, instead, a scorned woman, who had engaged in false accusations because of her baseless belief of the defendant’s infidelity and/or unexplained whereabouts. In addition, the defendant seeks to preclude the expert as inapplicable since the parties were neither married nor living together and the defendant claims that the complainant was the aggressor. The defendant’s argument that the testimony is inapplicable because they were never married or living together is completely without merit. The court is not aware of any study or requirement indicating that the BWS (battered woman syndrome) only relates to parties that are married or live together.

A thorough review of New York case law regarding BWS found that there have been only few written decisions where a court has ruled on whether expert testimony regarding BWS is admissible. Typically, BWS is advanced by the defendants to assist the jury in evaluating the reasonableness of force used in self-defense wherein the proponent of the testimony, the defendant, is charged with a criminal act. Only a few New York courts have discussed the use by the prosecution on their direct case of an expert regarding BWS. The court granted the motion to call an expert witness on domestic violence to testify in regard to BWS in order to aid the jury in its understanding of the complainant’s recantation. The court finds that the use of a BWS expert to explain a complainant’s complete recantation of the charges is dramatically different than the use to explain a delay in reporting the alleged criminal act.

In permitting the expert testimony on BWS, courts limit the testimony and prohibit from allowing the expert to opine that the complainant is a battered woman because of the profound danger that the jury will infer from the BWS testimony that the defendant committed the criminal act charged or that the jury will unduly use BWS testimony to improperly bolster the complainant’s credibility. Various courts allowed to introduction of expert’s testimony about BWS to explain a recantation, a prior inconsistent statement, or unusual behavior.

The complainant’s counsel seek to introduce expert testimony on BWS on their direct case to explain the delay in reporting the assault, repeated reconciliations with the defendant after the beatings, and why she believed the defendant’s threats to kill her if she reported the incident. As the court ruling has denied the introduction of the various alleged uncharged crimes in the instant prosecution, the only surviving inquiry relates to the delay in the complainant’s reporting.

Although, the admission of expert testimony regarding battered woman syndrome, rape trauma syndrome, and learned helplessness syndrome has been held to be proper to explain behavior on the part of the complainant that might seem unusual to a lay jury unfamiliar with the patterns of response exhibited by a person who has been physically and sexually abused over a period of time, the court finds none of the facts apparent in this particular case outside of a jury’s common sense and logic, and therefore, sees no reason for permitting the complainant to present testimony on BWS on their direct case. The court finds a marked difference between the facts of the case versus the use of this type of expert testimony in rape cases and in cases where it is used to explain a child’s delay in reporting sexual abuse to rebut an inference that the victim was not abused. In the former, the testimony of an expert regarding rape trauma syndrome is inherently different from the assault case presented here.

The complainant contends that permitting them to introduce expert testimony on BWS in their case-in-chief would be helpful to the jury’s understanding of the victim’s perceptions and behavior. They fail to evaluate the prejudicial impact of the testimony on the defendant. The court holds that expert testimony on battered woman syndrome is inadmissible as a matter of law where it is used as an affirmative weapon against a defendant. Furthermore, the conflict with the admission of this testimony is that it violates the protections provided to the defendant and contradicts the court’s Molineux ruling. In particular, the facts of this case focus on allegations of assault which were not reported immediately by the complainant. A jury is well within their bounds and exercise of common sense to evaluate the complainant’s testimony regarding the facts and circumstances surrounding the alleged incident as well as her minimal delay in reporting.

This, in essence, gives rise to the jury determining that the defendant has a propensity to commit domestic violence against the complainant. Finally, the complainant’s state of mind is not at issue, nor is proof that the defendant is a batterer or that the defendant and the complainant were involved in a battering relationship. Expert testimony regarding the symptoms of a battered person leads to the unavoidable conclusion that the complainant suffers from BWS, which presupposes and speculates on the existence of a batterer. Since there is no evidence that any other person other than the defendant was involved in a relationship with the complainant during the relevant time period, such testimony amounts to an opinion that the defendant was and is in fact a batterer.

In sum, expert testimony on battered woman syndrome should be admissible only to address an issue that is inherently confusing to the jury and when there is no other evidence to address it. The court finds that the admission of any such testimony is not necessary to aid the trier of fact in this case in assessing the circumstances surrounding the relatively minimal delay in the complainant’s reporting of the instant alleged offense, and finds the probative value outweighed by the prejudicial impact. As such, the complainant’s counsels are precluded from introducing such evidence on their direct case.

Woman and children are the often victims of physical and sexual abuse. If you want to protect your family members from abuse related crimes help the victims put their offenders in jail. You can recommend the Nassau County Sex Crime Attorney and the Nassau County Criminal Lawyer from Stephen Bilkis and Associates.

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