Law Lessons from STATE OF NEW JERSEY V. J.I.F., App. Div., A-6270-07T4, March 4, 2010:

In this case, Dr. Cynthia Lischick, Ph.D. was qualified as an expert on domestic violence. She explained that “battering” is separate from episodic assault in that it involves a pattern of various conduct over time, including: (1) isolation from support systems; (2) intimidation and threats; (3) degradation; (4) tactics and strategies involving psychological abuse; and (5) deprivation of rights and freedoms. She noted that there can also be physical and/or sexual abuse.

She testified that batterers often believe they are “privileged and entitled to coerce and control the victims using intimidating gestures, using threats, [and] depriving them of rights and freedoms” to get what they want. Generally, they believe that there will be no consequences as a result of their actions and therefore they have no reason to stop.

She explained that there are three categories of victim coping responses: (1) they can adapt to the coercive control environment and begin to follow exactly what is demanded by the batterer; (2) they can become “numb” to the degradation that occurs; or (3) they can resist. Victims of battering often do not want to testify against the batterers because they are afraid, and, in fact, often protect the batterers by testifying on their behalf and denying that the battering occurred, or by minimizing it. Approximately sixty percent of domestic violence reports involve battering and approximately forty percent involve episodic instances of domestic violence.

Dr. Lischick explained further that battering involves a malevolent course of action: “It involves strategies of isolation, intimidation, depravation of rights and freedoms, and tactics of abuse,” which can be psychological, sexual, or physical. She defined battering as a coercive control pattern and the effects of that pattern on the victim, that is, learned helplessness. Battering goes beyond an episodic assault and involves all of the above strategies in a pattern over time.

She acknowledged that the mere fact that physical violence occurs does not automatically create a battered woman because isolation from other people on more than one occasion is a critical component of battering. Where there is no isolation, there is no battering. She also acknowledged that a wife may fabricate a charge against her husband and then recant; the recantation itself would not prove she was a battered spouse.

However, she opined that it was not unusual for a battered spouse to not want to testify on behalf of the State, most often because she is afraid or loves the batterer or because of her culture. It would not, in her opinion, be unusual for the victim to minimize the violence or to recant her initial version of events.

She also acknowledged that BWS and the theory of the cycle of violence do not apply to every case. BWS is not recognized in the Diagnostic and Statistical Manual as a separate illness, and the theory of BWS has been discredited by some.

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In State v. Kelly, 97 N.J. 178, 187 (1984), the Supreme Court, in the context of a claim of BWS self-defense to the killing of the batterer, held for the first time that

a battering relationship embodies psychological and societal features that are not well understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of the average juror and thus is suitable for explanation through expert testimony.

[Id. at 209.]

After examining the law governing self-defense and concluding that expert testimony regarding BWS was relevant to that defense, id. at 197-207, Chief Justice Wilentz noted that N.J.R.E. 56(2) (now N.J.R.E. 702) provided:

that an expert may testify “as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue.” In effect, this Rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid. R. 56.

[Id. at 208.]

Chief Justice Wilentz went on to observe that “[t]he primary justification for permitting expert testimony is that the average juror is relatively helpless in dealing with a subject that is not a matter of common knowledge.” Id. at 209 (citing Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App. Div. 1961)). As a consequence, “the proponent of expert testimony must demonstrate that testimony would ‘enhance the knowledge and understanding of lay jurors with respect to other testimony of a special nature normally outside of the usual lay sphere.’” Ibid. (citing State v. Griffin, 120 N.J. Super. 13, 20 (App. Div.), certif. denied, 62 N.J. 73 (1972)).

In State v. J.Q., 130 N.J. 554, 574 (1993), the Supreme Court explained the rationale for allowing such expert testimony:

[E]xpert scientific evidence concerning “battered-woman’s syndrome” does not aid a jury in determining whether a defendant had or had not behaved in a given manner on a particular occasion; rather, the evidence enables the jury to overcome common myths or misconceptions that a woman who had been the victim of battering would have surely left the batterer. Thus, the evidence helps the jury to understand the battered woman’s state of mind.

See also State v. Ellis, 280 N.J. Super. 533, 541-44 (App. Div. 1995) (“[A]pplication [of BWS] is limited to explaining a victim’s reactions or late reporting of the events and not as evidence that the crime occurred” where victim testified to many incidents of controlling behavior, beatings, and threats as well as unfounded accusations and suspicions over a five-year period and expert had a two-and-one-half-hour interview with the victim.); State v. Frost, 242 N.J. Super. 601, 613-14 (App. Div.), certif. denied, 127 N.J. 321 (1990) (evidence of BWS can be used to bolster a victim’s credibility in the State’s case in chief).

In State v. Townsend, 186 N.J. 473, 479 (2006), the State presented expert testimony without a diagnosis of BWS to prove that the decedent’s dying declaration exonerating defendant was not credible. On appeal, the court reversed the conviction because the court “concluded that although testimony in respect of [BWS] satisfied the requirements of New Jersey Rule of Evidence 703, the testimony that battered women not diagnosed with [BWS] exhibit characteristics similar to women with the syndrome did not.” Id. at 494 (citing State v. Townsend, 374 N.J. Super. 25, 55 (App. Div. 2005)). The court “also found that it was plain error to admit those discrete expert opinions that were net opinions.” Ibid. (citing Townsend, supra, 374 N.J. Super. at 56). The Supreme Court concluded “that the characteristics of battered women with or without a diagnosis of [BWS] are sufficiently reliable to support expert testimony as an aid to the jury.” Id. at 493.

The Court held that the opinion of the State’s expert that women with BWS commonly lie about the source of their injuries was not a net opinion because it was based upon medical information and the expert’s education and considerable experience counseling battered women. Id. at 494-95. The Court upheld the admission of such testimony because it satisfied three basic requirements for the admission of expert testimony set forth in N.J.R.E. 702: (1) “the ramifications of a battering relationship are beyond the ken of the average juror,” id. at 491; (2) “that the characteristics of battered women with or without a diagnosis of [BWS] are sufficiently reliable,” id. at 493; and (3) “based on her training and experience, [the prosecution's expert] was qualified to give expert testimony on battered women and [BWS],” ibid.

However, the court has found no case where expert testimony respecting the characteristics of a battered woman and BWS was presented in the absence of any evidence of a coercive control pattern and its effects and an expert opinion as to whether the victim was battered. Generally, the woman is evaluated by the expert. See, e.g., Kelly, supra, 97 N.J. at 196-97; State v. McClain, 248 N.J. Super. 409, 414-15 (App. Div.), certif. denied, 126 N.J. 341 (1991); Frost, supra, 242 N.J. Super. at 611-12. Where that is not possible, as in Townsend, there is evidence of systematic abuse. State v. Gartland, 149 N.J. 456, 472-73 (1992).

The opinions offered by Dr. Lischick in this case were simply not sufficient to be relevant to the facts of this case. “‘Relevant evidence’ means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Relevancy is “the hallmark of admissibility.” State v. Gookins, 263 N.J. Super. 58, 63 (App. Div. 1993), rev’d on other grounds, 135 N.J. 42 (1994); accord, State v. Darby, 174 N.J. 509, 519 (2002). Probative value is “the tendency of evidence to establish the proposition that it is offered to prove.” State v. Wilson, 135 N.J. 4, 13 (1994).

“In determining whether evidence is relevant, the inquiry should focus on the logical connection between the proffered evidence and a fact in issue.” State v. Bakka, 176 N.J. 533, 545 (2003).

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Resource: The New Jersey Coalition for Battered Women

Resource: Where can I locate information about available services for victims of domestic violence in my area?

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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