A Guide to Domestic Violence Expert Testimony in Colorado, 1116 COBJ, Vol. 45 No. 11 Pg. 63

Author:Victoria L. Lutz, J.
 
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45 Colo.Law. 63

A Guide to Domestic Violence Expert Testimony in Colorado

Vol. 45, No. 11 [Page 63]

The Colorado Lawyer

November, 2016

          Victoria L. Lutz, J.

         CBA Family Violence Program

         This article provides guidance to attorneys and experts regarding the use of domestic violence expert witnesses in Colorado. Specifically, it sketches the history of domestic violence expert testimony and suggests who is qualified to be a domestic violence expert witness; what topic areas the expert should be able to address; why and when to employ a domestic violence expert; where this expert can be important in domestic, civil, and criminal cases; and how ”quality control” considerations impact domestic violence expert testimony.

         Courts in all 50 states and the District of Columbia have admitted domestic violence expert testimony for at least the past 20 years.[1] Colorado appellate courts have approved this type of testimony since 1999.[2] Yet the foundations for admitting domestic violence expert testimony, the parameters of its use at trial, the qualifications necessary to become an expert, and even the accepted nomenclature for this type of testimony are often decided on a case-by-case or court-by-court basis. This article addresses these topics and includes best practice considerations and suggestions.

         A Historical Overview

         Until about 50 years ago, what happened between intimate partners behind closed doors was considered a private matter. This dangerous attitude gradually has yielded to empirical reality.3 In 1964, the first battered women’s shelter in the United States opened its doors.4 In the 1970s, social workers, psychologists, healthcare workers, and all manner of professional caregivers and researchers began identifying, analyzing, and addressing what has since been labeled the ”public health epidemic” of domestic violence.5

         In 1979, psychologist Lenore Walker introduced the battered woman syndrome theory to describe the impact of domestic violence that she witnessed in the battered women she studied.6 She used the ”cycle of violence” concept to show how the domestic violence relationship evolved.7 She adapted and advanced the idea of ”learned helplessness” to explain why battered women in her study found it difficult to safely escape abusers.8

         Nearly 40 years of research have confirmed that battered woman syndrome was just the beginning of our understanding of domestic violence (or ”intimate partner violence,” as it is frequently called).[9] We now know that battered woman syndrome, which is sometimes described as a subset of post-traumatic stress disorder (PTSD), does not affect the majority of battered women.10 The cycle of violence may reflect the initial but not necessarily the long-term experiences of many battered women, while ”learned helplessness” is a term that has conjured much misinterpretation and taken decades to clarify.11

Often the legal system uses battered woman syndrome as a shorthand for explaining the dynamics of a battering relationship.12 However, one of the shortcomings of using the term ”battered woman syndrome” is that it simultaneously fails to encompass the batterer’s grab bag of controlling behaviors and the victim’s variety of responses to those behaviors. Decades of research and experience have resulted in conceptualizing ”battering and its effects”13 and ”social framework evidence”[14]as better paradigms than any syndrome to explain intimate partner violence and abuse.[15]

         Regardless of the words that are used to label or describe domestic violence, many myths and misunderstandings exist that can alter how the trier of fact perceives testimony concerning acts of coercive control, battering behaviors, and responses to intimate partner violence. A domestic violence expert witness is best suited to explain battering and its effects in court, and can identify and dispel common misunderstandings. Conversely, without the assistance of an expert, the fact-finder might misconstrue abusive acts to be benign, myths to be reality, and a victim’s responses to be unreasonable.

         Who Is Qualified to Be a Domestic Violence Expert in Colorado?

         Colorado Rule of Evidence (CRE) 702 states that, ”[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”16 It is the job of the qualified domestic violence expert witness to provide specialized knowledge to assist the trier of fact to dispel misconceptions about intimate partner violence and to understand the evidence and determine facts at issue.

         A domestic violence expert may be, for example, an advocate at a domestic violence shelter, a mental health provider, a domestic violence educator, or an attorney with specialized knowledge in this field.17 There is no requirement for any type of degree, license, or certification process; the sole standard is that the expert have ”scientific, technical or other specialized knowledge” that will ”assist the trier of fact.”18

         The Colorado Supreme Court in People v. Shreck19 provided the following criteria for courts to use in applying the CRE 702 standard: ”(1) the scientific principles at issue are reasonably reliable, (2) the witness is qualified to opine on such principles, and (3) the testimony will be useful to the jury.”20 Additionally, the probative value may not be outweighed by the danger of unfair prejudice or the other trial concerns of CRE 403.21 The court is given broad discretion in determining who meets this standard22 and must make its findings on the record.23

         What Topic Areas Must the Expert Be Able to Address?

         In preparing to testify, the domestic violence expert and retaining counsel should discuss discovery rules and decide how their communications will be handled.[24] To benefit most from the attorney/expert relationship, counsel should seek the assistance of the domestic violence expert in creating a detailed set of questions and answers (Q&A) that the expert and the attorney determine are relevant to domestic violence generally and to the issues in their case specifically. The attorney and expert should retool this Q&A several times before trial, with the understanding that this material is as fluid as any well-thought-out, flexible witness prep Q&A. Some questions (e.g., concerning necessary expert witness qualifications and definitions of critical domestic violence terms) will be standard because they apply to most, if not all, domestic violence cases. Other questions obviously need to address the facts of a specific case.

         The domestic violence expert witness Q&A has three sometimes overlapping parts: (1) witness pedigree and endorsement details; (2) generic domestic violence and ”myth-busting” information; and (3) explanations that are relevant in particular cases. With the caveat that each case will require tailoring, some suggested categories of inquiry appear below.

         Pedigree and Endorsement Details

         As part of standard trial preparation, the attorney and expert should carefully lay out, topic by topic and question by question, how the expert’s domestic violence pedigree and endorsement references will be presented. Once a legal foundation of the reason for the need for expert testimony is established (e.g., to explain why a battered woman stays with a partner who abuses her), Colorado courts are generally receptive to domestic violence expert evidence and will consider the qualifications of the proposed expert.25

         Based on anecdotal data, it seems that Colorado courts give great weight to experiential expertise, especially expertise gained from years of working with battered women. Problems can arise, however, if an expert has only minimal training. Such an expert becomes susceptible to undermining cross-examination into his or her limited knowledge of state-of-the-art interpersonal violence social science advances.

         Library shelves contain hundreds of domestic violence books and treatises, and the Internet is filled with constantly evolving research about intimate partner violence. Therefore, an ”expert” who, for example, relies on an outdated 1979 book as a source26 should no more be deemed a domestic violence expert than a physician who relies on a 1979 book as a primary source of information. Updating and keeping current are hallmarks of reliable expertise in any field.

         Similarly, an attorney who hires an expert with excellent educational credentials but who has never assisted domestic violence victims may find that this expert is unable to ”tell it like it is” and simply parrots information found in books. Counsel may also encounter problems...

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