General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 6
September 2000



By Jane H. Aiken and Jane C. Murphy

This article is intended to assist practitioners in anticipating and responding to some of the evidentiary challenges in civil cases in which relief is sought for the victims of domestic violence. It explores the ways in which evidence issues may benefit and inhibit civil actions arising from the domestic violence. It also discusses the difficulties in using prior bad acts evidence.

The Use of Expert Opinion on the Effects of Battering. Three types of expert opinions facilitate an understanding of the dynamics and perspectives underlying a domestic violence relationship: the clinically based opinion; the social framework opinion; and a hybrid of the clinically based and social framework opinions. The clinically based expert assesses the relationship and can offer opinion evidence about the particular effects of battering on this relationship. Social framework experts put clinical data in perspective, usually without any clinical relationship with the parties. The social framework expert clarifies the contradictions and misconceptions regarding domestic abuse. Such testimony is critical to explain victim behavior. The expert must educate the fact finder regarding the unfathomable dynamics underlying domestic violence relationships and the subtle, confusing facts of abuse. The hybrid expert offers a clinical opinion about the abuse and its effects in this particular relationship and explains the behavior of the abused person.

Rules regarding expert opinion specifically allow expertise based on experience. Nonetheless, some courts refuse to qualify domestic violence workers as experts who can testify regarding their knowledge of abuse arising from their experience working with women in shelters or other settings. Instead, they are viewed as "advocates," lacking in "scientific distance." This view damages the expert’s credibility, limits the effectiveness of the testimony, and may cause disqualification of the expert. Recent Supreme Court rulings on expert opinion may have had the effect of privileging scientific inquiry. This may increase the court’s use of standard scientific requirements, like testability, peer review, publication, rate of error, and general acceptance. These scientific requirements often inappropriately assess the worth of social science studies or the clinical experience of the expert. In those states relying on the Frye standard, the court may find that such expert opinion is not "generally accepted in the scientific community."

Expert opinion explains why victims minimize abuse and keep abuse a secret. Domestic violence experts facilitate custody determinations by offering insight into the current and potential effects on children in a domestic violence household. However, as useful as experts may be, they are often costly and impractical. The summary nature of order of protection hearings makes calling an expert unlikely even if the party could find and afford one. Costs can be substantially reduced through the introduction of "learned treatise"-type evidence, relying on articles from reputable journals to assist in evaluating the social framework of the case.

Evidentiary Implications of Concurrent Civil and Criminal Proceedings. Order of protection hearings often occur in the shadow of a criminal prosecution for assault. Police practices in anticipation of a criminal prosecution may differ. Police often play a more active role in gathering physical evidence and obtaining 911 tapes and medical records of treatment following the incident. Many police forces are being trained to produce police reports that record "excited utterances" and other hearsay exceptions within the document. Therefore, the police report can be used to conduct "victim-less prosecutions" when the victim decides to withdraw the criminal complaint and does not wish to testify. These more detailed investigations and reports can be useful as supplemental and corroborating evidence of the domestic abuse in the protection hearing and in subsequent divorce and/or custody proceedings. The record can be used against the alleged perpetrator without the police officer’s being present and subject to cross-examination. Hearsay statements included in the report must meet hearsay exceptions. "Excited utterances" may be the most likely hearsay exception covering a victim or witness’s statement if the report was taken at the scene of, shortly after, or during the violence incident.

The hearing on the protection order is likely to occur prior to prosecution and becomes a source for discovery and preservation of testimony. Victims can enjoy certain benefits from this. Future criminal defendants may also provide inculpatory testimony in this setting while testifying about the alleged abuse. Such testimony may be admissible in the subsequent prosecution for both its impeachment and substantive value as party admissions. A represented victim may, therefore, be at an advantage in settlement. In order to avoid a finding of abuse and to keep the defendant off the stand, a respondent may be willing to negotiate with his victim to create an order that may not otherwise be available after a hearing, because either the statute does not provide for such relief or the judge is unwilling to order it after a hearing. These provisions include matters such as child support, maintenance, and supervised visitation.

Introducing Evidence of Pattern of Abuse in Civil Cases. Evidence of prior bad acts is especially relevant and probative in domestic violence cases because of the cyclical nature of domestic violence. Prior acts of abuse are often necessary to prove the nature and seriousness of the abuse involved. One act of abuse may not warrant the same remedy as a case in which there has been a pattern of abuse. There are a variety of theories that practitioners can rely on in arguing for admission of pattern of abuse evidence in protection order or other civil proceedings where domestic violence is at issue. You can argue that the general prohibition on admitting prior bad acts evidence does not apply. This argument would be particularly persuasive when the statute relied on instructs the court, either directly or indirectly, to consider a history or pattern of abuse.

In child custody and visitation cases, the courts are more willing to accept evidence of domestic violence as a part of the best interests assessment. Most states require courts to consider the presence of abuse when making such determinations. Courts vary in the amount of evidence of abuse that is necessary to trigger a finding that a parent has engaged in domestic violence. Some states require a conviction for a serious domestic violence-related crime. In most states, a mere preponderance of evidence will suffice to prove domestic violence for the purpose of affecting the custodial decision.

Practitioners can also argue that evidence of prior bad acts should be admitted to negate anticipated defenses. Although this theory is not well developed in the civil context, there is ample precedent on the criminal side for allowing prosecutors to admit evidence of a defendant’s prior crimes in their cases in chief to counter anticipated defenses. An increasingly common defense in protection order and custody cases where allegations of abuse are made is that the victim has a motive to fabricate the allegations to gain an advantage in a divorce or custody case. If you anticipate the batterer will claim that your client fabricated the allegations, you can argue that evidence of prior abuse should be admitted to rebut this defense claim.


Jane H. Aiken is a professor at Washington University School of Law. Jane C. Murphy is a professor and director of clinical programs at the University of Baltimore School of Law.



This article is an abridged and edited version of one that originally appeared on page 43 of Family Law Quarterly, Spring 2000 (34:1).


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