[DV_listserv] We've come a long way--expert witness testimony!

[Domestic Violence issues]

Remember when....

State v Ogden, 168 Or App 249, 6 P3d 1110 (2000), rev den, 331 Or 692 (2001) had a chilling effect on prosecutors' ability to offer expert witness testimony in domestic violence cases.

(Ogden was a Domestic Violence case where the defendant was charged with and convicted of four counts of Coercion. During trial, the prosecutor offered expert testimony regarding the behavior of women in abusive relationships to rebut the defendant's challenge to the victim's credibility (i.e., if she was so abused, why would she continue to have contact with him?). In a pretrial hearing, the prosecutor explained to the trial judge that the expert's testimony was not offered to show that the victim suffered from Battered Women's Syndrome (BWS) but was offered to buttress the victim's credibility by providing an alternative explanation for her behavior (i.e., continued contact with the defendant despite his abuse of her). At trial, the phrase "Battered Women Syndrome" was not used by either the prosecutor or the expert witness. Despite that fact, on appeal the defendant argued that evidence of "BWS" was irrelevant because the state had not established that the victim suffered from "BWS." Quite surprisingly, the appeals court reversed the convictions.)

WELL, over the last few years, prosecutors have again been trying, often successfully, to introduce expert testimony in DV cases. There have been a number of cases recently which will improve our ability to offer (limited) expert witness testimony (without going through a Brown/O'Key hearing):

State v. Clemens, 208 Or App 632, 145 P3d 294 (2006), rev den, 342 Or 299 (2007): Detective allowed to offer expert testimony on the "non-chronological reporting by victims. The testimony, based on the detective's training and experience, was determined to not be scientific (and thus not subject to Brown/O'Key).

State v. Rambo, 250 Or App 186, 195, 279 P3d 361 (2012), rev den, 353 Or 203 (2013): Officer allowed to testify, in part based on scientific evidence, as a non-scientific expert on the issue of whether the Defendant was under the influence of a narcotic analgesic.

State v. Cuevas, 263 Or App 94 (2014): Caseworker allowed to testify as an expert witness on delayed disclosure of child sex abuse victims. The testimony, based on the caseworker's training and experience, was determined not to be scientific.

State v. Swinney, 269 Or App 548 (2015): Detective was allowed to testify as an expert on the general characteristics of grooming in child sex abuse cases. The testimony, based on the detective's training and experience, was determined to not be scientific.

State v. Althof, 273 Or App 342 (2015): Detective was allowed to testify as an expert on the "concrete reasons" why victims of domestic violence and child abuse might delay reporting. The testimony, based on the detective's training and experience, was determined to not be scientific.

The key to these cases (offering non-scientific expert opinions):

1) That the witness has the requisite training and experience. For instance in State v. Dunning (2011) a detective was found NOT to be qualified to testify as an expert on the issue of "traumatic memory."

2) The witness' testimony will assist the trier of fact in understanding the evidence;

3) The witness' testimony "draws its force from [the witness'] training and experience but not necessarily from the mantle of science" (Cuevas, page 109).

4) The testimony provided is based on the witness' direct training and experience and does not draw a conclusion in the trial at hand. For instance, a witness might say (in response to a question), "It's my experience, both through my personal involvement with cases, talking to colleagues about their domestic violence cases, as well as attending trainings, that victims of domestic violence frequently stay in the abusive relationship (return to the abuser; minimize the abuse; recant the abuse; etc.)."  But you cannot ask a witness, "Based on your training and experience, do you have an opinion as to whether Jane Doe (in this case) is a victim of domestic violence?" That's a no-go.

I'm working on an updated "Memorandum in Support of Motion to Introduce Testimony of Domestic Violence Expert" which will have a lengthier discussion of case law, etc. I'll send it out when it's completed!

Let me know if you have questions,

Erin






Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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