Lawyers Manual - Unified Court System

Beyond Victims’ Testimony 215
case; or (4) to provide necessary background information. 53 It can also be
introduced to negate a defense of not responsible by reason of mental disease or
defect54 or justification or intoxication. 55 An application should be made to the
trial court prior to trial through a motion in limine and an offer of proof made. It is
also helpful to file a pre-trial memorandum explaining why the evidence is critical
to the case and what facts and law support the application. 56
Since the enactment of the Family Protection and Domestic Violence
Intervention Act of 1994, police must prepare written reports that document any
incidents of domestic violence and the report must stay on file for at least four
years. 57 Consequently, prior acts of domestic violence that are reported to or
known by the police will be available and they can be crucial in a domestic
violence prosecution.
Expert Testimony
Expert testimony in domestic violence cases is important to counter ignorance
and misconceptions about battering. Unlike “ordinary” or “fact” witnesses, who
testify to particular facts relevant to a case, an expert witness may be permitted
to testify when the conclusions to be drawn by a jury depend upon facts which
are not within the knowledge or “ken” of the jury. 58 Generally, the expert cannot
give an opinion on the ultimate issue of the defendant’s guilt because that would
usurp the function of the jury. 59
The qualification of a witness to testify as an expert is in the sound discretion
of the trial court. 60 The prosecutor may be required to make an offer of proof
regarding the expert’s qualifications and the crux of the testimony. Trial courts
often restrict the testimony to a general description of the issue (i.e., battered
woman’s syndrome) and the prosecutor can then weave the testimony into the
facts during summation.
The Psychological Expert
Although we often think of the use of expert testimony in domestic violence
cases where the woman is charged with a crime against the abuser, 61 it can also
be important in a case where the victim will not testify. An expert can explain
why the victim might recant and refuse to come forward. Experts can educate
the jury on battering including demographics, the implications of ethnicity,
dynamics of abusive relationships, and control by batterers leading to their
partners denying, minimizing or blaming themselves for the abuse. 62