State v. Kelly

HANDLER, J.,

concurring in part and dissenting in part.

The record in this case persuasively establishes the professional acceptance and scientific reliability of the clinical psychological condition referred to as the “battered women’s syndrome.” Therefore, I would rule that expert evidence of the battered women’s syndrome is both competent and relevant as related to the defense of self-defense. Consequently, no further expert testimony or evidence concerning the admissibility *221 of this doctrine should be required on a retrial of this case. I would also allow into evidence on the retrial the testimony of defendant’s expert that defendant was suffering battered women’s syndrome when she killed her husband. That testimony was unquestionably relevant to defendant’s claim of self-defense. In addition, the evidence in this case indicates that repeated sexual and physical victimization of a woman’s children may, in conjunction with her own abused treatment, contribute to the development of battered women’s syndrome. I therefore concur in the majority’s determination to allow on a retrial evidence of the decedent’s sexual assaults upon defendant’s daughter as related to the issue of the battered women’s syndrome and defendant’s defense of self-defense.

The Court in this case takes a major stride in recognizing the scientific authenticity of the battered women’s syndrome and its legal and factual significance in the trial of certain criminal cases. My difference with the Court is quite narrow. I believe that defendant Gladys Kelly has demonstrated at her trial by sufficient expert evidence her entitlement to the use of the battered women’s syndrome in connection with her defense of self-defense. I would therefore not require this issue — the admissibility of the battered women’s syndrome — to be tried again.

I

This Court’s opinion presents a cogent and thorough explanation of the perplexing and tragic condition of the battered women’s syndrome. This condition refers to a congeries of common traits in women who are subjected to prolonged physical and psychological abuse by their mates. Women suffering battered women’s syndrome have low self-esteem, strong feelings of personal guilt over their failing marriages, and self-blame for the violence that their mates inflict upon them. Ante at 195-196, citing L. Walker, The Battered Woman 35-36 (1979) (Walker). Typically, such battered women are dominated *222 by unshakeable fear, which often traps them into remaining with their battering mates. Id., citing D. Martin, Battered Wives 76-79 (1981) (Martin). Victims of battered women’s syndrome frequently become so demoralized and degraded that they lapse into a psychological torpor, a state of “learned helplessness.” Ante at 194-195, citing Walker, supra, at 75.

The relationships that typify the syndrome usually involve cyclical behavior. One recurrent phase of the cycle includes a period of contrite behavior by the batterer, which reinforces the illusion of these victimized women that their mates will change and reform, further binding them to the relationship. Ante at 193, citing Walker, supra, at 55-70; R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977). Many battered women perceive the battering cycle as commonplace, and refuse to acknowledge the abnormality of their plight. Ante at 194, citing T. Davidson, Conjugal Crime (1978); Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); Martin, supra, at 60.

The Court’s opinion explains that the abusive pattern that characterizes this syndrome is a phenomenon that puzzles and confuses the untutored lay person. The violence common to the syndrome is the subject of widespread ignorance and misinformation. It has spawned myths as to its causes and distorted stereotypes of its victims. Ante at 192. Some common misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their physical and psychological suffering, that they purposely provoke their mates into violent behavior and, most critically, that women who remain in battering relationships are free to leave their abusers at any time. Id., citing Walker, supra, at 19-31.

This Court’s enlightened exposition of the battered women’s syndrome, drawn from the record in this case lays a firm foundation for a determination of the admissibility of expert testimony relating to the syndrome in the trial of particular *223 criminal causes under the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., and our rules of evidence.

II

Evidence Rule 56(2) provides 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; State v. Cavallo, 88 N.J. 508 (1982); State v. Hurd, 86 N.J. 525 (1981).

The first criterion for the admission of expert testimony under Evidence Rule 56(2) is that the subject matter is fully comprehended primarily by experts, persons who have special training and education in the particular field. Correlatively, the subject matter ordinarily falls beyond the common understanding of persons of average intelligence and education. In this case, it has been firmly established that the battered women’s syndrome is a subject that is properly within the special comprehension of experts. Also, as the record abundantly demonstrates, the battered women’s syndrome is a subject that is not fully understood by the average person. Consequently, it is an appropriate matter for elucidation through expert testimony. State v. Griffin, 120 N.J.Super. 13, 29 (App.Div.1972), certif. den. 62 N.J. 73 (1972); Nesta v. Meyer, 100 N.J.Super. 434 (App.Div.1968), cited in State v. Cavallo, supra, 88 N.J. at 518 ; Angel v. Rand Express Lines, Inc., 66 N.J.Super. 77, 85 (App.Div.1961).

The second requirement of Evidence Rule 56(2) that must be met before expert testimony on a particular subject is permitted *224 is a showing that the proposed testimony would be reliable. State v. Cavallo, supra, 88 N.J. at 516-17 (1982). There must be a sufficient scientific basis for the expert testimony. The asserted scientific body of knowledge must be considered reliable by those who have professional training and responsibility in the field. Romano v. Kimmelman, 96 N.J. 66, 80 (1984); State v. Hurd, supra, 86 N.J. at 536 ; State v. Cary, 49 N.J. 343, 352 (1967).

There are generally three ways a proponent of expert testimony can prove its reliability in terms of its general acceptance within the professional community. First, such general acceptance can be established by the testimony of knowledgeable experts. Second, authoritative scientific literature can be used to establish professional acceptance. Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be followed. State v. Cavallo, supra, 88 N.J. at 521 .

These criteria for the admissibility of expert testimony relative to the battered women’s syndrome have been met in this case. Because the battered women’s syndrome is a relatively new field of research, only a few counts have had the opportunity to consider its evidential admissibility. Some courts have already acknowledged the scientific acceptability of the syndrome and the reliability of the methodology used by practitioners and researchers in this field. See, e.g., State v. Allery, 101 Wash. 2d 591, 596 , 682 P. 2d 312, 315 (1984) (en banc) (battered women’s syndrome sufficiently accepted in scientific community and sufficiently outside lay competence so as to be appropriate subject of expert testimony in criminal trial); State v. Anaya, 438 A.2d 892 (Me.1981); Smith v. State, 247 Ga. 612 , 277 S.E.2d 678 (1981). Other courts have not yet done so. Compare Hawthorne v. State, 408 So.2d 801 (Fla.Dist.Ct.App.1982), petition for review denied, 415 So.2d 1361 (Fla.1982) and Ibn-Tamas v. United States, 407 A.2d 626 (D.C.Ct.App.1979) (remanding to trial court for further consideration of scientific acceptability) with Buhrle v. State, 627 P.2d 1374 (Wyo.1981) *225 and State v. Thomas, 66 Ohio St. 2d 518 , 423 N.E. 2d 137 (1981) (holding that subject was not sufficiently established as a matter of scientific expertise). In light of the compelling record that has been established in this case, I am persuaded of the soundness of those decisions that have concluded that the battered women’s syndrome constitutes a valid subject of expert testimony. I am satisfied that these decisions are correct and will emerge as the authoritative position on this issue.

The record before us, based on expert testimony, including scientific writings, further reveals that the battered women’s syndrome has gained general acceptance as a scientific doctrine within the professional community. Dr. Lois Veronen, a highly qualified expert in the field, testified that the battered woman’s syndrome is acknowledged and accepted by practitioners and researchers in the fields of psychology and psychiatry. In addition, Dr. Veronen testified to the existence of numerous authoritative books, articles and papers evidencing the scientifically recognized, expanding field of study and research about the battered woman’s syndrome. See Buckelew v. Grossbard, 87 N.J. 512 (1981); Calabrese v. Trenton State College, 82 N.J. 321 (1980). The abundance of this authoritative literature was also made evident on this appeal — over 70 scientific articles and several books have been published on the subject. Dr. Veronen further testified that, since 1977, the battered women’s syndrome has been recognized at several symposiums sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association. See Giannelli, “The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later,” 80 Colum.L.Rev. 1197 (1980) (under appropriate circumstances, speeches, addresses, and other non-written sources may be used to demonstrate the acceptance of a premise by the scientific community).

Public policy considerations complement these traditional modes for determining whether a particular subject matter is reliable and within the purview of expert knowledge. An *226 emerging public policy acknowledges the battered women’s syndrome. Psychiatrists, psychologists, and social scientists, as well as the legal and law enforcement community, have begun to come to grips with the forces that generate and perpetuate familial and domestic violence. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); Martin, supra; Walker, supra; R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy, ed. 1977). The New Jersey Legislature has recognized the pervasiveness and gravity of domestic violence, which in so many cases forms the backdrop against which the battered women’s syndrome appears. See Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16; Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to -17; New Jersey Supreme Court Task Force on Women in the Courts, Summary Report at 5-6 (Nov. 21, 1983). The Legislature was presumably aware of the burgeoning expert opinion and literature that recognized the battered women’s syndrome as both a contributing cause and devastating consequence of domestic and familial violence. This growing awareness extends to the national level as well, as evidenced, for example, by the U.S. Attorney General’s formation, in September 1983, of a task force on family violence “to review [the] basic assumptions that underpin the handling of [domestic] violence eases.” Statement of Attorney General William French Smith, September 19, 1983.

The final requirement of Evidence Rule 56(2) for the admission of expert testimony is the showing that the proffered expert witness has sufficient expertise to testify. State v. Cavallo, supra, 88 N.J. at 516 . In this case, as recognized by the Court, Dr. Veronen was clearly highly qualified to testify as an expert with respect to the psychological condition of battered women’s syndrome. Ante at 211. Furthermore, her proffered testimony fully met the standards for the receipt of expert testimony concerning the battered women’s syndrome.

*227 In addition to her general knowledge of the battered women’s syndrome, Dr. Veronen was familiar with the facts in this case and competent to testify in that regard. Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research and the application of this methodology to defendant. Dr. Veronen was prepared to express her professional opinion that Gladys Kelly was an abused woman suffering from battered women’s syndrome when she fatally stabbed her husband.

In sum, the record fashioned in this case convincingly demonstrates, through the testimony of an eminently qualified expert witness, that expert testimony concerning the battered women’s syndrome is now generally accepted and regarded as reliable within the professional community. Its competence and relevance as evidence in the trial of particular criminal cases has been shown. The battered women’s syndrome is sufficiently reliable to authorize its admissibility as a proper subject of expert testimony. In my view, this evidence should have been allowed in the trial of this case.

Ill

I concur in the majority’s determination that the testimony of defendant’s seventeen-year-old daughter, Edith Cannon, concerning the decedent’s beatings of Gladys and her children, should have been admitted into evidence at the trial. Ante at 215-216. Defendant’s daughter was also prepared to testify that she had been sexually abused by decedent since she was 12 years of age and had related this to her mother. However, the trial judge, on the basis of Evidence Rule 4, excluded Edith’s testimony that she had told her mother about the decedent’s sexual assaults upon her.

The expert evidence fairly shows that such circumstances— the physical and sexual abuse of battered women’s children— cannot be separated from all of the factors that contribute to the syndrome. Such child abuse occurs in 75% of the battering *228 relationships that eventuate in homicide, and frequently constitutes a “critical factor in the tension * * * before some lethal incidents.” Walker, supra, at 11. Consequently, such evidence of child abuse is relevant in a case in which the battered women’s syndrome is a material issue.

To reiterate, expert testimony on the battered women’s syndrome and the applicability of this syndrome to the defendant’s claim of self-defense should be allowed on the retrial of this case. Evidence of the victim’s abuse of the defendant’s children, including sexual assaults on her daughter, are part of the dismal composite that constitutes the battered women’s syndrome. Such evidence is highly probative of the issue of self-defense in the context of the battered women’s syndrome and its evidential worth clearly outweighs its potential for prejudice or confusion.

IV

In sum, I believe the Court acts without sufficient warrant in remanding this case to permit the issue of the general admissibility of expert testimony on the battered women’s syndrome to be tried anew. The record reveals that the issue of admissibility was fairly presented at trial. That record has generated an evidential base sufficiently solid to permit, if not mandate, our acceptance of the battered women’s syndrome as expert doctrine. While it is arguable that the State did not fully challenge the evidence below, its position on appeal is essentially that the evidence proffered at the trial was not adequate to establish the scientific reliability of the battered women’s syndrome. The Court now unanimously rejects that position. I think it pointless and unfair to encourage the State to renew its attacks upon the authenticity of the battered women’s syndrome doctrine.

For the reasons expressed, I dissent in part from the Court’s decision.

*229 For reversal — Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O’HERN and GARIBALDI— 6.

Concurring in part and dissenting in part — Justice HANDLER — 1.