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Evidentiary Trends in Domestic Violence

Family Law

& #x201c;All happy families are more or less dissimilar; all unhappy ones are more or less alike.”
Leo Tolstoy

“Happy families are all alike; every unhappy family is unhappy in its own way.”
Vladimir Nabokov 1

Every year almost three million domestic violence crimes are committed.2 Recognizing that domestic violence has become such an overwhelming problem in society, many states are relaxing their evidentiary standards or creating new standards to allow the admission of domestic violence evidence. Recently, a number of states have amended both their statutes and evidence codes to ease the prosecution of domestic violence crimes. Many states also have adopted novel, and some not so novel, approaches to confronting the admission of domestic violence evidence.

Clearly, it is difficult to draw nationwide generalizations because all 50 states approach the admission of domestic violence evidence differently. This article will survey how different states address common evidentiary issues in domestic violence cases.

Creative Application of Hearsay Exceptions

One major obstacle to prosecuting domestic violence cases is that the vast majority of victims refuse to cooperate.3 This refusal to cooperate often results in the problem of a “victimless prosecution.” Unless there is some tangible evidence, such as a 911 tape or photographs of the victim’s injuries, the victim’s refusal to cooperate often effectively destroys the case.4 A number of states have begun to address this problem by rethinking the traditional application of hearsay exceptions in domestic violence cases.5 Some states are even introducing specific policies designed to reduce reliance on a victim’s in-court testimony.6

There are several reasons underscoring the victim’s reluctance to testify. One reason is that victims are terrified of their partners and believe that the police cannot protect them against a truly obsessed defendant.7 Another reason is that victims frequently fall into the trap of believing things will improve.8 Economics also is a factor. Many victims are near the poverty line and have valid concerns that their standard of living will drop even further if they leave the abuser.9

One way of overcoming the problem of a victim’s refusal to cooperate is to bypass the victim’s in-court testimony and introduce the victim’s prior consistent statements. However, a victim’s out-of-court statements regarding domestic violence are inadmissible as proof of that violence, unless they fit into one of the existing hearsay exceptions.10 Thus, the admissibility of these statements depends upon the circumstances in which the statement was made and for what purpose the statement is offered at trial.

In domestic violence cases, many out-of-court statements are admitted into evidence under the “excited utterance” exception to the hearsay rule.11 For admission under this exception, a statement relating to a startling event must be made under the stress of the excitement from the event and before the declarant has time for conscious reflection.12 Physical violence is not necessary to establish a sufficiently startling event; even a threat can suffice.13 However, the statement still must be made in response to the startling event or soon thereafter. How soon depends upon the jurisdiction, but most courts require statements to be made shortly after the startling event.14 Usually, statements made within a half hour of a startling event are admissible.15 But, there is no bright line rule concerning how long an utterance remains “excited.” Statements made up to 14 hours after an event have been admitted.16 However, statements made days, weeks, and months after the event normally are barred.17

A victim’s out-of-court statements are also frequently admitted under the “state of mind” exception.18 Statements under this exception are allowed for limited purposes when the victim’s state of mind is at issue. Accordingly, expressions of the victim’s fear are admissible when offered to rebut allegations that the defendant acted in self-defense, that the victim’s injuries were accidental, or that the parties had a peaceful relationship.

Another means to admit a victim’s out-of-court statements in domestic violence cases is under the “medical diagnosis” exception. For admission under this exception, the statement must be made for purposes of obtaining medical treatment.19 The applicability of this exception in domestic violence cases, however, appears limited to children. The problem is that a statement relaying an incident of domestic violence usually is irrelevant to the treatment of an adult victim’s injuries. However, the same is not generally true for child victims, where the identity of the perpetrator may be necessary for treatment, so that the perpetrator can be kept away from the child.20

In addition to applying traditional hearsay exceptions in domestic violence cases, some jurisdictions apply novel approaches to admitting a victim’s out-of-court statements. For example, in Kansas statements regarding prior threats of violence are admissible in a marital homicide case and are not considered hearsay.21 These statements are not viewed as being offered to prove the truth of the matter asserted, i.e., the violence. Instead, the analysis ordinarily applied to bad act character evidence is used and the statements are admitted if they are probative of identity, motive, or intent.22

California recently adopted a specific exception to the hearsay rule for domestic violence cases.23 Similar exceptions already apply in a number of jurisdictions for out-of-court statements by child sexual abuse victims, but California is the first to apply this type of exception to adults.24 To qualify for admission a statement must narrate, describe, or explain the infliction or threat of physical injury and the declarant must be unavailable to testify. The statement also must have been made within at least five years of the infliction of the injury, and must either be written, electronically recorded, or provided to a law enforcement official.

These new approaches to admitting a victim’s out-of-court statements are, for the most part, untested on appeal. For a hearsay exception to survive a constitutional attack on confrontational grounds, it must be “firmly rooted” or have “particular guarantees of trustworthiness.”25 Yet, only traditional exceptions such as the excited utterance exception are commonly regarded as “firmly rooted.”26 Nevertheless, the future of how states answer the challenge of adapting hearsay exceptions to domestic violence cases will have a great impact on the success or failure of domestic violence prosecutions.27

Prior Bad Acts

Another significant evidentiary issue in domestic violence cases is the admission of prior acts of violence. Prior acts of misconduct are ordinarily inadmissible to show that a defendant acted in conformity with that misconduct on a given occasion, unless relevant to establish motive, intent, mistake, identity, and common scheme or plan.28

As with the consideration of a victim’s out-of-court statements, a number of jurisdictions are reconsidering the admission of character evidence in domestic violence cases.

Since domestic violence cases often turn on credibility, once a victim recants his or her allegations, or refuses to testify, the introduction of prior violent acts can amount to the difference between conviction and acquittal.29 Providing a history of violent behavior gives the factfinder a flavor for the parties’ true relationship and can negate the defense that the victim’s injuries were accidental or unintentional.30 In this regard, prior misconduct evidence can aid the factfinder in understanding why the victim did not disclose the crimes sooner, or why the victim is recanting the allegations at trial.31

Many jurisdictions require distinct elements for the admission of prior acts of misconduct. Some states limit the consideration of prior act evidence to incidents involving the same victim, or a similar crime.32 Other states require the abuse to be ongoing, occurring with sufficient frequency and recency to “give rise to an expectation of recurrence.”33 California recently expanded the consideration of prior act evidence by creating a specific exception permitting evidence of the defendant’s commission of prior acts of domestic violence.34 The rationale behind the statute is that it allows jurors to see the complete picture of the couple’s life because “existing evidentiary laws are insufficient in the area of domestic violence.”35 The statute requires that the evidence must be relevant and must be less than 10 years old (unless the interests of justice permit otherwise). Moreover, the intention to use the evidence also must be disclosed to the defendant.

Prior acts of misconduct are also frequently admitted under circumstances in which the victim of domestic violence is on trial as a defendant. Here, evidence of prior misconduct and/or the battered woman syndrome may be probative of self-defense. Until recently, few jurisdictions allowed evidence of battered woman syndrome as a defense. As a result, there were mass pardons of spouses convicted of killing their abusive partners in self-defense.36 Today, most jurisdictions allow this defense.37 The requirements for establishing the defense of battered woman syndrome generally mirror the requirements for self-defense: knowledge of the victim’s partner’s reputation for violence and that the victim acted out of fear for personal safety.38 In addition, some courts have allowed this defense beyond domestic violence prosecutions.39

Custody and Visitation

Unlike the admission of a victim’s out-of-court statements or a defendant’s prior misconduct, states apply a more uniform approach to the admission of domestic violence evidence in child custody and visitation cases. Almost every state requires courts to consider evidence of domestic violence when making custody or visitation decisions.40 These requirements are usually grounded on the consideration of the best interests of the child.41

In the context of applying the best interests standard, some states expressly prohibit awarding custody to a parent found to have committed domestic violence or abuse on anyone.42 Other states establish a rebuttable presumption against awarding custody or visitation to the abusive parent.43 The level of evidence required to establish domestic violence also varies from state to state. Idaho requires the batterer to be a “habitual perpetrator” for the rebuttable presumption to apply.44 Louisiana, Missouri, and Oklahoma require the abuse to be ongoing, or part of a pattern of conduct.45 Oklahoma further requires that the evidence of the abusive conduct must be clear and convincing.46 Some states, such as Delaware and Florida, only trigger the rebuttable presumption against custody where there is a conviction for a serious domestic violence crime. Delaware requires a felony or serious misdemeanor.47 Florida requires a conviction for a second degree felony or higher to establish a rebuttable presumption that will preclude shared parental rights.48

States now uniformly recognize the need for mandating consideration of domestic violence in child custody cases.49 The evolution of statutory presumptions against custody awards to domestic violence perpetrators reflects a societal determination that domestic violence will not be tolerated.


The evidentiary trends of the last few years reflect an increasing response on the part of the judiciary and the legislature to society’s interest in the prevention of domestic violence. As concern over domestic violence continues to grow, it is likely that courts will continue to review domestic violence and amend their evidentiary standards further. How Florida will navigate this uncharted sea of new laws is unclear. However, it is clear that state legislatures and courts are recognizing an evidentiary distinction in domestic violence cases. The alert attorney should be aware of and should master these evidentiary nuances, which are unique to domestic violence cases.

1 See Leo Tolstoy, Anna Karenina 1 (Leonard Kent & Nina Berberova eds. & Constance Garnett trans., Modern Library 1965);
Vladimir Nabokov, Ada or Ardor: A Family Chronicle 3 (McGraw-Hill 1969). Howard Lidsky, noted Russian literary authority, points out these juxtaposed ironies.
2 See Angela Corsilles, No Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63
Fordham L. Rev.
853, 881 n.6 (1994); Peter Finn, Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Abuse, 23
Fam. L.Q. 43 (1989).
3 It is estimated that 80 percent of victims in criminal cases dismiss charges against their abusers. See Andrew Glendon, Battling Domestic Violence Through the Admission of Character Evidence, 28
Pac. L.J.
789 (1997); Corsilles, supra note 2, at 881 n.7.
4 See State v. Green, 667 So. 2d 756 (Fla. 1995); State v. Lee, 657 N.E.2d 604 (Ohio Mun. Ct. 1995). Historically, those investigating domestic violence often did nothing more than take the victim’s statement. See Cheryl Hanna, No Right To Choose, Mandated Victim Participation in Domestic Violence Prosecutions, 109
Harv. L. Rev.
1849, 1900 (June 1996). To alleviate this tendency and produce more evidence, investigative agencies are now encouraged to conduct detailed investigations of domestic violence scenes. Police are also encouraged not to ask the victim whether she or he will testify at trial, but instead, whether the victim will tell the truth. See Corsilles, supra note 2, at 853. Furthermore, many jurisdictions, including Florida, have adopted policies making it harder for victims to withdraw domestic violence charges. See State v. Bryant, 549 So. 2d 1155 (Fla. 3d D.C.A. 1989). Courts in other states have refused to allow spouses to drop charges and have held spouses in contempt for refusing to testify. See Stubbs v. State, 441 So. 2d 1386 (Miss. 1983); Irene D. v. Anthony D., 449 N.Y.S.2d 584 (N.Y. Fam. Ct. 1982); Karnes v. Karnes, 1981 WL 5749 (Ohio Ct. App. 1981).
5 See Hanna, supra note 4, at 1900; see Donna Matthews, Making the Crucial Connection: A Proposed Threat Hearsay Exception, 27
Golden Gate U. L. Rev. 117, 153 (1997).
6 See Cal. Evid. Code §1370 (1997).
7 The most dangerous time for a domestic violence victim is when the victim asserts his or her independence and either leaves, or attempts to leave, the abusive relationship. This loss of control often escalates the violent response from the abuser, who may even hunt down and murder the victim. See Matthews, supra note 5, at 165 n.6 (describing the enormous rage and brutality of killings when the victim leaves). See also Martha R. Mahoney, Women’s Lives, Violence, and Agency in the Public Nature of Private Violence (Martha Albertson Fineman & Roxanne Mykitiuk, eds., 1994) (noting that more than half of domestic homicides are committed after the victim leaves the relationship).
8 The “cycle of violence” is commonly believed to have three phases: rising tension, acts of aggression, and forgiveness. Many victims are lulled by the siren song of the apology, only to suffer from a more violent attack when the cycle repeats. See Laurie Salame, A National Survey of Stalking Laws: A Legislative Trend Comes to the Aid of Domestic Violence Victims and Others, 27
Suffolk U. L. Rev. 67, 82 (1993).
9 See Lisa De Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8
Yale J.L. & Feminism,
359, 366.
10 The most commonly used exceptions in connection with domestic violence cases are the state of mind exception, the excited utterance exception, the present sense impression, and the medical diagnosis exception. A few courts even use the catch-all exception in domestic violence cases. See, e.g., State v. Baker, 451 S.E.2d 574 (N.C. 1994).
11 See, e.g., Ware v. State, 596 So. 2d 1200 (Fla. 3d D.C.A. 1992); State v. Clark, 926 P.2d 194 (Haw. 1996); State v. Woodward, 908 P.2d 231 (N.M. 1995); State v. Lee, 657 N.E.2d 604 (Ohio Mun. Ct. 1995); State v. Smith, 868 S.W.2d 561 (Tenn. 1994).
12 See Fla. Stat. §90.803(2)(1997); Rogers v. State, 660 So. 2d 237 (Fla. 1995).
13 See Matthews, supra note 5, at 138.
14 See, e.g., Romero v. State, 670 So. 2d 129 (Fla. 3d D.C.A. 1996); Dawson v. Commonwealth, 867 S.W.2d 493, 496 (Ky. Ct. App. 1993); Harris v. Commonwealth, 382 S.E.2d 292 (Va. Ct. App. 1989). See generally Lempert and Saltzberg, A Modern Approach to Evidence
(2d Ed. 1983).
15 See, e.g., Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988); State v. Woodward, 908 P.2d 231 (N.M. 1995); State v. Anderson, 723 P.2d 464 (Wash. Ct. App. 1986).
16 See State v. Stafford, 23 N.W.2d 832 (Iowa 1946).
17 See, e.g., State v. True, 438 A.2d 460 (Me. 1981); State v. Walker, 489 A.2d 728 (N.J. Super. Ct. Law Div. 1985); Commonwealth v. Myers, 609 A.2d 162 (Pa. 1992).
18 See, e.g., State v. Porter, 587 A.2d 188 (Del. 1990); Peede v. State, 474 So. 2d 808 (Fla. 1985), cert. denied, 477 U.S. 909 (1986); State v. Magruder, 765 P.2d 716 (Mont. 1988); State v. Parr, 606 P.2d 263 (Wash. 1980).
19 See Fla. Stat. §90.803(4) (1997).
20 See State v. Robinson, 735 P.2d 801 (Ariz. 1987); State v. Nelson, 406 N.W.2d 385 (Wis. 1987).
21 See Christine Arguello, The Marital Discord Exception to Hearsay: Fact or Judicially Legislated Fiction?, 46
U. Kan. L. Rev. 63, 76–77 (1997).
22 Id. at 71.
23 Cal. Evid. Code §1370 (1997).
24 Typical statutes permitting statements regarding child abuse require the court to conduct an in-camera hearing, determine the statement reliable, establish corroboration, and require the child (usually around 10 years old) to testify, if the child is not unavailable. See Alaska Stat. §12.40.110 (Michie 1997); Ariz. Rev. Stat. Ann. §13-1416 (West 1997); Cal. Evid. Code §1228 (West Supp. 1997); Colo. Rev. Stat. Ann. §13.25-129 (1997); Del. Code Ann. tit. 11, §3513 (1997); Fla. Stat. §90.803(23)(1997); Ga. Code Ann. §24-3-16 (1997); Idaho Code §19-3024 (1997);
Ill. Comp. Stat. 5/115-10 (West 1998);
Minn. Stat. §595.02 (1997); 42 Pa. Cons. Stat. Ann. §5986 (West 1997); Tex. Crim. P. Code Ann. §38.072 (West Supp. 1997); Utah Code Ann. §76-5-411 (1997); Wash. Rev. Code Ann. §9A.44.120 (West Supp. 1997).
25 See Ohio v. Roberts, 448 U.S. 56, 66 (1980).
26 See Matthews, supra note 5, at 160.
27 See generally Hanna, supra note 4, at 1849.
28 See Fla. Stat. §90.404(2)(a) (1997); John S. Herbrand, Admissibility of Evidence of Subsequent Criminal Offenses as Affected by Proximity as to Time & Place, 92 A.L.R. 3d 545 (1980).
29 See Lisa Linsky, Use of Domestic Violence History Evidence in the Criminal Prosecution: A Common Sense Approach, 16
Pace L. Rev. 73, 75 (1995).
30 See, e.g., Allred v. State, 642 So. 2d 650 (Fla. 1st D.C.A. 1994); Flanagan v. State, 586 So. 2d 1085 (Fla. 1st D.C.A. 1991); Wetta v. State, 456 S.E.2d 696 (Ga. Ct. App. 1995); People v. Illgen, 583 N.E.2d 515 (Ill. 1991); People v. Hawker, 626 N.Y.S.2d 524 (N.Y. App. Div. 1995); People v. Sims, 494 N.Y.S.2d 114 (N.Y. App. Div. 1985); State v. Grubb, 675 N.E.2d 1353 (Ohio Ct. App. 1996); State v. Smith, 868 S.W.2d 561 (Tenn. 1994).
31 See State v. Clark, 926 P.2d 194 (Haw. 1996). See also Smith v. State, 669 A.2d 1 (Del. 1995); Lazarowcz v. State, 561 So. 2d 392 (Fla. 3d D.C.A. 1990); Hackney v. State, 649 N.E.2d 690 (Ind. Ct. App. 1995); State v. Thompson, 520 N.W.2d 468 (Minn. Ct. App. 1994); People v. Singh, 588 N.Y.S.2d 573 (N.Y. App. Div. 1992).
32 See Colo. Rev. Stat. Ann. 18-6-801.5 (West 1997); State v. Nelson, 562 N.W.2d 324 (Minn. Ct. App. 1997); State v. Stevens, 938 P.2d 780 (Or. Ct. App. 1996); State v. Grant, 920 P.2d 609 (Wash. 1996).
33 Brown v. Brown, 867 P.2d 477 (Okla. 1993).
34 See Cal. Evid. Code §1109 (1997).
35 See Glendon, supra note 3, at 789.
36 See Christine Becker, Clemency For Killers? Pardoning Battered Women Who Strike Back, 29
Loy. L.A. L. Rev. 297 (1995).
37 See Rogers v. State, 616 So. 2d 1098, 1099 n. 3 (Fla. 1st D.C.A.) (and cases cited therein), aff’d in part, rev’d in part, 630 So. 2d 177 (Fla. 1993).
38 In Florida, a defense of justification requires the defendant to show that the victim threatened the defendant and caused the defendant to fear for the victim’s life. See Andrews v. State, 577 So. 2d 650 (Fla. 1st D.C.A. 1991). See also Ky. Rev. Stat. Ann. §503.050(3) (Michie 1997); Wilson v. Commonwealth, 880 S.W.2d 877 (Ky. 1994); State v. Terry, 654 So. 2d 455 (La. Ct. App. 1995).
39 State v. Lambert,
312 S.E.2d 31 (W.Va. 1984) (evidence of abuse admissible in welfare fraud case to show lack of intent based on husband’s coercive conduct).
40 See Family Violence Project of the Nat’l Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29
Fam. L.Q. 197, 204 (1995).
41 The best interests test is the most prevalent standard designed to protect the safety of children in custody and visitation cases. See Family Violence Project, supra note 40, at 197.
42 See, e.g.,
Ariz. Rev. Stat. §25-332 (1997); Colo. Rev. Stat. Ann. §14-10-124 (West 1997); 750 Ill. Comp. Stat. 5/602 (West 1998); N.H. Rev. Stat. Ann. §458:17 (1996); R.I. Gen. Laws §15-5-16 (1997); Wyo. Stat. Ann. §§20-2-112, 20-2-113 (Michie 1997).
43 See, e.g.,
Del. Code Ann. tit., 13, §705A (1997); Fla. Stat. §61.13 (2)(b)(2) (1997); Idaho Code §32-717 (1997); La. Rev. Stat. Ann. §9:364(a) (West 1997); Minn. Stat. Ann. §518.17 subd. 2(d) (West 1997); N.D. Cent. Code §14-05-22.3 (1997); Okla. Stat. tit. 10, §21.1(d) (West 1997).
44 Idaho Code §32-717 (1997).
45 See, e.g., Simmons v. Simmons, 649 So. 2d 799 (La. Ct. App. 1995); Hamilton v. Hamilton, 886 S.W.2d 711 (Mo. Ct. App. 1994); Brown v. Brown, 867 P.2d 477 (Okla. 1993).
46 Okla. Stat. tit. 43, §112.2 (1997).
47 See Del. Code Ann. tit. 13, §705A (1997).
48 See Fla. Stat. §61.13(2)(b)(2) (1993); Ward v. Ward, 1996 WL 491692 (Fla. 1st D.C.A. 1996).
49 See Jack Dalgleish, Jr., Construction and Effect of Statutes Mandating Consideration of, or Creating Presumptions Regarding Domestic Violence in Awarding Custody of Children, 51 A.L.R. 5th 241 (1997).

Judge David M. Gersten is a fourth-generation Floridian who has served as a judge in Dade County for 18 years. After receiving his J.D. in 1975 from the University of Florida, Judge Gersten worked in private practice until 1980, when he was elected to the Dade County Court. In 1982 he was elected as a circuit judge for the 11th Judicial Circuit, where he served until 1989, when he was appointed to the Third District Court of Appeal.

This column is submitted on behalf of the General Practice, Solo and Small Firm Section, Dykes C. Everett, chair, and David A. Donet, editor.

Family Law