In 2001, 546 children died nationwide, while living in foster care. (Adoption and Foster Care Analysis and Reporting System (AFCARS) FY 2006)

A Criminal Defense Attorney's View
of the Domestic Violence Industry - Page 6

by: Paul G. Stuckle, Esq.
Updated: March 12, 2006

VI. Changing the Rules to Convict

Table of Contents

1. Legislative Changes

Pro football star, Warren Moon, former quarterback of the Houston Oilers and Minnesota Vikings was charged with domestic violence assault in July 1995. The case captured national attention as his wife, the alleged victim, Felicia Moon did not want to testify or pursue charges.

The prosecution forced Felicia Moon to testify after the Texas Legislature amended and limited the "Husband - Wife" privilege. Prior to the change in the law, a spouse could elect not to be a witness for the state to testify against the other spouse.

'The couple said they scuffled at their home July 18 after an argument over credit cards provoked Mrs. Moon to throw a 2-pound candleholder at Moon's back. Mrs. Moon ended up with scratches and bruises around her neck and shoulders. Moon said that he was probably responsible for the injuries but that he was trying to calm his wife, not harm her.

Mrs. Moon likewise insisted her husband never intended to hurt her. She had pleaded with prosecutors to not press charges but was forced to take the stand under a 1995 law eliminating the right to refuse to testify against one's spouse. More than 40 states have eliminated the spousal privilege.'

Terri Langford, Associated Press,
February 23, 1996.

It took the jury merely 27 minutes yesterday to acquit Warren Moon of the assault.

The 1995 amendment to the Code of Criminal Procedure and Rules of Evidence authorize the prosecution to mandate a spouse to testify against the other spouse. The provisions read:

ART. 38.10 Exceptions to the Spousal Adverse Testimoney Privilege

The privilege of a person's spouse not to be called as a witness for the state does not apply in any proceeding in which the person is charged with a crime committed against the person's spouse, a minor child, or a member of the household of either spouse. Tex. Code Crim. Proc. Art. 38.10

Privilege Not to Testify in Criminal Case
(1) Exceptions: The privilege of a person's spouse not to be called as a witness for the state does not apply:
  (a) Certain criminal proceedings. In any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor.

Texas Rules of Evidence 504: Husband - Wife Privileges

In addition to the legislative changes, Texas Appellate Courts have broadened hearsay exceptions, authorizing the prosecution to introduce supposed prior statements of an alleged victim.

2. Hearsay Evidence

Hearsay is defined as " a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Texas Rules of Evidence 803 (2)). In layman's terms, hearsay occurs when a witness testifies regarding what they heard someone else say. Hearsay is inadmissible at trial; however, there are many exceptions to the hearsay rule.

In domestic violence cases hearsay evidence is often admitted as substantive evidence of guilt. It is typical for courts to allow a police officer to testify to the officer's memory of what the victim supposedly said at the time of the incident. This testimony is admitted even though the victim's alleged statements were not recorded by the officer. Rather, the officer is testifying from notes in the police report made several hours or even days after the arrest. This testimony is admitted as an "excited utterance."

An excited utterance is defined as "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." (Texas Rules of Evidence 803 (2)). It is common for a statement to be admitted at trial as an excited utterance even if the incident occurred several hours prior to the officer obtaining the statement from the victim. The hearsay exception of excited utterances also allows the state to play the recorded "911" call from the victim to the jury. Whether an "excited utterance" is admissible is within the discretion of the trial court judge.

A criminal defense attorney will object to hearsay testimony as a violation of the defendant's right to confront their accuser at trial. When a witness at trial is reciting hearsay testimony, the defendant cannot cross-examine or confront the person who actually made the statement. The person who made the statement, called the declarant, is not the witness on the stand. The United States Constitution and state constitutions guarantee the defense the right to confront the accuser at trial. Generally speaking, an objection on the grounds the confrontation clause was violated is overruled by the trial court judge if the state can prove a hearsay exception.

On March 8, 2004, the United States Supreme Court decided the case of Crawford v. Washington, 2004 U.S. Lexis 1838, 72 U.S.L.W. 4229. The court interpreted the Sixth Amendment "Confrontation Clause" of the United States's Constitution. In Crawford, the Court found the confrontation clause was violated when a recorded statement by Crawford's spouse was played for the jury. Crawford's wife did not testify at trial under Washington's "Husband-Wife" privilege.

The case may not impact traditional hearsay rule exceptions. The Court made a distinction between "testimonial" and "non-testimonial" hearsay. The spouse in Crawford, had also been arrested and gave her statement while in police custody. The Court found those circumstances to be testimonial hearsay, inadmissible as a violation of the confrontation clause when the recording was played at trial and she did not testify.

Crawford does not cover "non-testimonial" statements such as when a spouse makes incriminating statements against the alleged battering spouse on a "911" call. Additionally, Crawford's ruling may not apply to "excited utterance" hearsay statements made by the victim when police first arrive on the scene. That question will be addressed by state appellate courts. With anticipated pressure from the Family Violence Industry, state appellate courts may take a very narrow view of Crawford's holding and allow hearsay statements into evidence.

3. Syndrome Evidence May Be Admissible Against the Accused

A new strategy is being urged by the state in domestic violence cases, particularly when the alleged victim has recanted or changed her story. The prosecutors are borrowing concepts from child sexual assault cases and attempting to expand them to family violence cases. In many states, prosecutors in child abuse cases can offer expert testimony that a child is suffering from the "Child Sexual Abuse Accommodation Syndrome "(C.S.A.A.S.). This syndrome is based on the theory that abused children will exhibit certain character traits indicative of abuse.

Prosecutors in adult assault cases are now attempting to show a victim who recants or changes the original story is suffering from "Battered Woman's Syndrome." The new prosecutorial trend is to use the syndrome to explain why a victim of domestic violence would recant. The state wants the jury to hear expert testimony explaining that a victim is likely to recant, not due to the absence of violence, but because she is a battered woman.

"Battered Woman Syndrome describes a pattern of psychological and behavioral symptoms found in women living in battering relationships." People v. Romero, 13 Cal Rptr 2d 332, 336 (Cal App 2d Dist. 1992). The nation's leading expert on the syndrome, Dr. Lenore Walker, states:

There are four general characteristics of the syndrome:

1. The woman believes that the violence was her fault.
2. The woman has an inability to place the responsibility for the violence elsewhere.
3. The woman fears for her life and/or her children's lives.
4. The woman has an irrational belief that the abuser is omnipresent and omniscient.

Walker, found nine typical characteristics of the battered wife:

1. has low self-esteem;
2. believes all the myths about battering relationships;
3. is a traditionalist about the home, strongly believes in family unity and the prescribed feminine sex-role stereotype;
4. accepts responsibility for the batterer's actions;
5. suffers from guilt, yet denies the terror and anger she feels;
6. presents a passive face to the world but has the strength to manipulate her environment enough to prevent further violence and being killed;
7. has severe stress reactions, with psychophysiological complaints;
8. uses sex as a way to establish intimacy; and
9. believes that no one will be able to help her resolve her predicament except herself.

Dr. Lenore Walker, 'The Battered Woman Syndrome' (1984)

Slowly the syndrome is appearing in domestic violence courts throughout the country as a means to strengthen the state's case against the accused. The majority of courts are disallowing expert testimony without specific proof the victim in that case suffers from the syndrome. However, it is anticipated this syndrome will soon gain the same status as C.S.A.A.S. and become a routine prosecutorial tactic against defendants in domestic violence cases.

With syndrome evidence, the state replaces its lack of real proof with speculation. Expert testimony stating the wife is a battered woman is fatal to the falsely accused. A wife testifying for the defendant describing the incident may tell the jury she exaggerated or was the instigator herself. The prosecution in rebuttal will call an expert witness to inform the jury that she is testifying in a manner consistent with being a battered spouse and merely protecting her husband.

A variety of state law cases indicate this prosecutorial trend seeking to introduce evidence the victim belongs to the class of persons known as "Battered Woman's Syndrome":

1. Russell v. State, Court of Appeals of Alaska, 2002 Alas. App. LEXIS 237, (2002) (Memorandum decision, not legal precedent);
2. People v. Williams, Court of Appeal of California, Second Appellate District, Division Four, 78 Cal. App. 4th 1118; 93 Cal. Rptr. 2d 356;
3. State v. Yusuf, Appellate Court of Connecticut, 70 Conn. App. 594; 800 A.2d 590; 2002 Conn. App. LEXIS 349 (2002);
4. State v. Niemeyer, Appellate Court of Connecticut, 55 Conn. App. 447; 740 A.2d 416; 1999 Conn. App. LEXIS 408 (1999);
5. Michigan v. Christel, 449 Mich. 578, 537 N.W.2d 194, 1995 Mich. LEXIS 1477;
6. State v. Cummings, Court of Appeals of Ohio, Eighth Appellate District, 2002 Ohio 4178; 2002 Ohio App. LEXIS 4353 (2002);
7. Garcia v. State, NO. 01-99-01068-CR, Court of Appeals of Texas, First District, Houston, 2000 Tex. App. LEXIS 3774, (2000) (Unpublished, not legal precedent).

4. Convictions Without Physical Evidence

Defendants have been convicted of domestic violence without any physical evidence introduced against them at trial. In many cases, the argument resulting in the arrest was so slight the alleged victim does not need or seek medical treatment. Frequently, the accused is convicted for intentionally causing "bodily injury" without any testimony from a qualified medical expert. The victim's testimony alone that she felt pain or suffered bodily injury is sufficient for a conviction.

This testimony can be supported by police officer testimony of having observed red marks, scratches, or bleeding, to substantiate the decision to arrest. These claimed injuries may or may not be photographed and preserved for trial. Commonly, a defendant is convicted of causing bodily injury without medical or photographic evidence.

The creation of the Family Advocacy Center is anticipated to follow their Child Advocacy Center predecessors. Medical nurses and employees, whose livelihoods depend upon their contracts with the centers, will give opinions that a victim was abused. Failure to give the right opinion will mean the contract is not renewed. These opinions from medical "experts" will say the findings are "consistent with" abuse. Of course, "consistent with abuse" is not a true medical diagnosis. This testimony, when attacked by the defense attorney will reveal the findings given, as "consistent with abuse" are just as "inconsistent with abuse".

Instead of physical and medical evidence, the falsely accused are now and will continue to be convicted upon theories, inferences, and speculation. Prosecutors secure convictions by manipulating the juries' fear of releasing a battering spouse back into the home. This fear will be combined with hearsay, expert witness "syndrome evidence", misleading medical testimony, and the biased opinions of family advocacy investigators. Immediately after arrest the alleged victim will be hustled to the Family Advocacy Center to be interviewed. At the center, a "forensic interviewer" with the help of state agents will orchestrate a video taped interview. The prosecutor and police detective will be monitoring the process through a two-way mirror in the adjacent room. The interviewer will be in communication and fed questions from the agents through a wireless microphone earpiece. The interviewer will question the alleged victim when she is still highly emotional and upset, prone to exaggeration and motivated to hurt the accused. Many cases have shown investigators to require an alleged victim to add the phrase "I felt pain" to any written or verbal description of the incident. The alleged victim is unaware that "pain" is the legal buzzword authorities must have to prosecute.

5. Summary: Recipe for conviction:

1. "911" call from the alleged victim claiming assault and injury;
2. Recorded preservation of the "911" call for trial;
3. A biased police investigation;
4. A Zero Tolerance policy requiring the police to make an arrest;
5. A biased interviewer requiring the alleged victim to state or write that she felt "pain";
6. A biased medical report by a "nurse" contracted by the domestic violence industry;
7. Syndrome evidence from an "expert" witness if the victim recants or changes her story;
8. Trial testimony through "excited utterance" hearsay and denial of the husband - wife privilege not to testify against their spouse;
9. Conviction on little or no physical evidence.

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