Evidentiary trends in domestic violence.

• Author: Gersten, David M.

"All happy families are more or less dissimilar; all unhappy ones are more or less alike."

Leo Tolstoy

"Happy families are all alike; every unhappy family is unhappy in its own way,"

Vladimir Nabokov[1]

Every year almost three million domestic violence crimes are committed.[2] Recognizing that domestic violence has become such an overwhelming problem in society, many states are relaxing their evidentiary standards or creating new standards to allow the admission of domestic violence evidence. Recently, a number of states have amended both their statutes and evidence codes to ease the prosecution of domestic violence crimes. Many states also have adopted novel, and some not so novel, approaches to confronting the admission of domestic violence evidence.

Clearly, it is difficult to draw nationwide generalizations because all 50 states approach the admission of domestic violence evidence differently. This article will survey how different states address common evidentiary issues in domestic violence cases.

Creative Application of Hearsay Exceptions

One major obstacle to prosecuting domestic violence cases is that the vast majority of victims refuse to cooperate.[3] This refusal to cooperate often results in the problem of a "victimless prosecution." Unless there is some tangible evidence, such as a 911 tape or photographs of the victim's injuries, the victim's refusal to cooperate often effectively destroys the case.[4] A number of states have begun to address this problem by rethinking the traditional application of hearsay exceptions in domestic violence cases.[5] Some states are even introducing specific policies designed to reduce reliance on a victim's in-court testimony.[6]

There are several reasons underscoring the victim's reluctance to testify. One reason is that victims are terrified of their partners and believe that the police cannot protect them against a truly obsessed defendant.[7] Another reason is that victims frequently fall into the trap of believing things will improve.[8] Economics also is a factor. Many victims are near the poverty line and have valid concerns that their standard of living will drop even further if they leave the abuser.[9]

One way of overcoming the problem of a victim's refusal to cooperate is to bypass the victim's in-court testimony and introduce the victim's prior consistent statements. However, a victim's out-of-court statements regarding domestic violence are inadmissible as proof of that violence, unless they fit into one of the existing hearsay exceptions.[10] Thus, the admissibility of these statements depends upon the circumstances in which the statement was made and for what purpose the statement is offered at trial.

In domestic violence cases, many out-of-court statements are admitted into evidence under the "excited utterance" exception to the hearsay rule.[11] For admission under this exception, a statement relating to a startling event must be made under the stress of the excitement from the event and before the declarant has time for conscious reflection.[12] Physical violence is not necessary to establish a sufficiently startling event; even a threat can suffice.[13] However, the statement still must be made in response to the startling event or soon thereafter. How soon depends upon the jurisdiction, but most courts require statements to be made shortly after the startling event.[14] Usually, statements made within a half hour of a startling event are admissible.[15] But, there is no bright line rule concerning how long an utterance remains "excited." Statements made up to 14 hours after an event have been admitted.[16] However, statements made days, weeks, and months after the event normally are barred.[17]

A victim's out-of-court statements are also frequently admitted under the "state of mind" exception.[18] Statements under this exception are allowed for limited purposes when the victim's state of mind is at issue. Accordingly, expressions of the victim's fear are admissible when offered to rebut allegations that the defendant acted in self-defense, that the victim!s injuries were accidental, or that the parties had a peaceful relationship.

Another means to admit a victim's out-of-court statements in domestic violence cases is under the "medical diagnosis" exception. For admission under this exception, the statement must be made for purposes of obtaining medical treatment.[19] The applicability of this exception in domestic violence cases, however, appears limited to children. The problem is that a statement relaying an incident of domestic violence usually is irrelevant to the treatment of an adult victim's injuries. However, the same is not generally true for child victims, where the identity of the perpetrator may be necessary for treatment, so that the perpetrator can be kept away from the child.[20]

In addition to applying traditional hearsay exceptions in domestic violence cases, some jurisdictions apply novel approaches to admitting a victim's out-of-court statements. For example, in Kansas statements regarding prior threats of violence are admissible in a marital homicide case and are not considered hearsay.[21] These statements are not viewed as being offered to prove the truth of the matter asserted, i.e., the violence. Instead, the analysis ordinarily applied to bad act character evidence is used and the statements are admitted if they are probative of identity, motive, or intent.[22]

California recently adopted a specific exception to the hearsay rule for domestic violence cases.[23] Similar exceptions already apply in a number of jurisdictions for out-of-court...