The opinion of the Court was delivered by WILENTZ, C.J.
The central issue before us is whether expert testimony about the battered-woman's syndrome is admissible to help establish a claim of self-defense in a homicide case. The question is one of first impression in this state. We hold, based on the limited record before us (the State not having had a full opportunity to prove the contrary), that the battered-woman's syndrome is an appropriate subject for expert testimony; that the experts' conclusions, despite the relative newness of the field, are sufficiently reliable under New Jersey's standards for scientific testimony; and that defendant's expert was sufficiently qualified. Accordingly, we reverse and remand for a new trial. If on retrial after a full examination of these issues the evidence continues to support these conclusions, the expert's testimony on the battered-woman's syndrome shall be admitted as relevant to the honesty and reasonableness of defendant's belief that deadly force was necessary to protect her against death or serious bodily harm.
On May 24, 1980, defendant, Gladys Kelly, stabbed her husband, Ernest, with a pair of scissors. He died shortly thereafter at a nearby hospital. The couple had been married
Ms. Kelly was indicted for murder. At trial, she did not deny stabbing her husband, but asserted that her action was in self-defense. To establish the requisite state of mind for her self-defense claim, Ms. Kelly called Dr. Lois Veronen as an expert witness to testify about the battered-woman's syndrome. After hearing a lengthy voir dire examination of Dr. Veronen, the trial court ruled that expert testimony concerning the syndrome was inadmissible on the self-defense issue under State v. Bess, 53 N.J. 10 (1968). Apparently the court believed that the sole purpose of this testimony was to explain and justify defendant's perception of the danger rather than to show the objective reasonableness of that perception.
Ms. Kelly was convicted of reckless manslaughter. In an unreported decision relying in part on Bess, the Appellate Division affirmed the conviction. We granted certification, 91 N.J. 539 (1983), and now reverse.
Defendant raises six issues on appeal. She claims: (1) that the trial court erred in excluding expert testimony on the battered-woman's syndrome; (2) that the trial court's charge on provocation was erroneous; (3) that the trial court erred in excluding testimony that Mr. Kelly had sexually assaulted one of Ms. Kelly's daughters; (4) that improper prosecutorial conduct caused her to be denied a fair trial; (5) that the trial court erred in admitting testimony about her earlier conspiracy conviction; and (6) that her sentence was excessive.
The Kellys had a stormy marriage. Some of the details of their relationship, especially the stabbing, are disputed. The following is Ms. Kelly's version of what happened — a version that the jury could have accepted and, if they had, a version
The day after the marriage, Mr. Kelly got drunk and knocked Ms. Kelly down. Although a period of calm followed the initial attack, the next seven years were accompanied by periodic and frequent beatings, sometimes as often as once a week. During the attacks, which generally occurred when Mr. Kelly was drunk, he threatened to kill Ms. Kelly and to cut off parts of her body if she tried to leave him. Mr. Kelly often moved out of the house after an attack, later returning with a promise that he would change his ways. Until the day of the homicide, only one of the attacks had taken place in public.
The day before the stabbing, Gladys and Ernest went shopping. They did not have enough money to buy food for the entire week, so Ernest said he would give his wife more money the next day.
The following morning he left for work. Ms. Kelly next saw her husband late that afternoon at a friend's house. She had gone there with her daughter, Annette, to ask Ernest for money to buy food. He told her to wait until they got home, and shortly thereafter the Kellys left. After walking past several houses, Mr. Kelly, who was drunk, angrily asked "What the hell did you come around here for?" He then grabbed the collar of her dress, and the two fell to the ground. He choked her by pushing his fingers against her throat, punched or hit her face, and bit her leg.
A crowd gathered on the street. Two men from the crowd separated them, just as Gladys felt that she was "passing out" from being choked. Fearing that Annette had been pushed around in the crowd, Gladys then left to look for her. Upon finding Annette, defendant noticed that Annette had defendant's pocketbook. Gladys had dropped it during the fight. Annette had retrieved it and gave her mother the pocketbook.
After finding her daughter, Ms. Kelly then observed Mr. Kelly running toward her with his hands raised. Within seconds
The central question in this case is whether the trial court erred in its exclusion of expert testimony on the battered-woman's syndrome. That testimony was intended to explain defendant's state of mind and bolster her claim of self-defense. We shall first examine the nature of the battered-woman's syndrome and then consider the expert testimony proffered in this case and its relevancy.
In the past decade social scientists and the legal community began to examine the forces that generate and perpetuate wife beating and violence in the family.
Due to the high incidence of unreported abuse (the FBI and other law enforcement experts believe that wife abuse is the most unreported crime in the United States), estimates vary of the number of American women who are beaten regularly by their husband, boyfriend, or the dominant male figure in their lives. One recent estimate puts the number of women beaten yearly at over one million. See California Advisory Comm'n on Family Law, Domestic Violence app. F at 119 (1st report 1978). The state police statistics show more than 18,000 reported cases of domestic violence in New Jersey during the first nine months of 1983, in 83% of which the victim was female. It is clear that the American home, once assumed to be the cornerstone of our society, is often a violent place.
While common law notions that assigned an inferior status to women, and to wives in particular, no longer represent the state
Another problem is the currency enjoyed by stereotypes and myths concerning the characteristics of battered women and their reasons for staying in battering relationships. Some popular misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands into violent behavior, and, most critically, as we shall soon see, that women who remain in battering relationships are free to leave their abusers at any time. See L. Walker, The Battered Woman at 19-31 (1979).
As these cases so tragically suggest, not only do many women suffer physical abuse at the hands of their mates, but a significant number of women kill (or are killed by) their husbands. In 1978, murders between husband and wife or girlfriend and boyfriend constituted 13% of all murders committed in the United States. Undoubtedly some of these arose from battering incidents. Federal Bureau of Investigation, Crime in the United States 1978 (1978). Men were the victims in 48% of these killings. Id.
As the problem of battered women has begun to receive more attention, sociologists and psychologists have begun to focus on the effects a sustained pattern of physical and psychological
According to Dr. Walker, relationships characterized by physical abuse tend to develop battering cycles. Violent behavior directed at the woman occurs in three distinct and repetitive stages that vary both in duration and intensity depending on the individuals involved. L. Walker, supra, at 55-70.
Phase one of the battering cycle is referred to as the "tension-building stage," during which the battering male engages in minor battering incidents and verbal abuse while the woman, beset by fear and tension, attempts to be as placating and passive as possible in order to stave off more serious violence. Id. at 56-59.
Phase two of the battering cycle is the "acute battering incident." At some point during phase one, the tension between the battered woman and the batterer becomes intolerable and more serious violence inevitable. The triggering event that initiates phase two is most often an internal or external event in the life of the battering male, but provocation for more severe violence is sometimes provided by the woman who can no longer tolerate or control her phase-one anger and anxiety. Id. at 59-65.
Phase three of the battering cycle is characterized by extreme contrition and loving behavior on the part of the battering
The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers. The loving behavior demonstrated by the batterer during phase three reinforces whatever hopes these women might have for their mate's reform and keeps them bound to the relationship. R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977).
Some women may even perceive the battering cycle as normal, especially if they grew up in a violent household. Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); D. Martin, Battered Wives, 60 (1981). Or they may simply not wish to acknowledge the reality of their situation. T. Davidson, Conjugal Crime, at 50 (1978) ("The middle-class battered wife's response to her situation tends to be withdrawal, silence and denial ...").
Other women, however, become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation. There is a tendency in battered women to believe in the omnipotence
In addition to these psychological impacts, external social and economic factors often make it difficult for some women to extricate themselves from battering relationships. A woman without independent financial resources who wishes to leave her husband often finds it difficult to do so because of a lack of material and social resources.
Even with the progress of the last decade, women typically make less money and hold less prestigious jobs than men, and are more responsible for child care. Thus, in a violent confrontation where the first reaction might be to flee, women realize soon that there may be no place to go. Moreover, the stigma that attaches to a woman who leaves the family unit without her children undoubtedly acts as a further deterrent to moving out.
In addition, battered women, when they want to leave the relationship, are typically unwilling to reach out and confide in their friends, family, or the police, either out of shame and humiliation, fear of reprisal by their husband, or the feeling they will not be believed.
Dr. Walker and other commentators have identified several common personality traits of the battered woman: low self-esteem, traditional beliefs about the home, the family, and the female sex role, tremendous feelings of guilt that their marriages are failing, and the tendency to accept responsibility for the batterer's actions. L. Walker, supra, at 35-36.
Finally, battered women are often hesitant to leave a battering relationship because, in addition to their hope of reform on the part of their spouse, they harbor a deep concern about the possible response leaving might provoke in their mates. They literally become trapped by their own fear. Case histories are replete with instances in which a battered wife left her husband
The combination of all these symptoms — resulting from sustained psychological and physical trauma compounded by aggravating social and economic factors — constitutes the battered-woman's syndrome. Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's state of mind be accurately and fairly understood.
The voir dire testimony of Dr. Veronen, sought to be introduced by defendant Gladys Kelly, conformed essentially to this outline of the battered-woman's syndrome. Dr. Vernonen, after establishing her credentials, described in general terms the component parts of the battered-woman's syndrome and its effects on a woman's physical and mental health. The witness then documented, based on her own considerable experience in counseling, treating, and studying battered women, and her familiarity with the work of others in the field, the feelings of anxiety, self-blame, isolation, and, above all, fear that plagues these women and leaves them prey to a psychological paralysis that hinders their ability to break free or seek help.
Dr. Veronen stated that the problems of battered women are aggravated by a lack of understanding among the general public concerning both the prevalence of violence against women and the nature of battering relationships. She cited several myths concerning battered women that enjoy popular acceptance — primarily that such women are masochistic and enjoy the abuse they receive and that they are free to leave their husbands but choose not to.
Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research. These tests and their methodology, including their interpretation, are, according to Dr. Veronen, widely
In addition, Dr. Veronen was prepared to testify as to how, as a battered woman, Gladys Kelly perceived her situation at the time of the stabbing, and why, in her opinion, defendant did not leave her husband despite the constant beatings she endured.
Whether expert testimony on the battered-woman's syndrome should be admitted in this case depends on whether it is relevant to defendant's claim of self-defense, and, in any event, on whether the proffer meets the standards for admission of expert testimony in this state. We examine first the law of self-defense and consider whether the expert testimony is relevant.
The present rules governing the use of force in self-defense are set out in the justification section of the Code of Criminal Justice. The use of force against another in self-defense is justifiable "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). Further limitations exist when deadly force is used in self-defense. The use of such deadly force is not justifiable
These principles codify decades of prior case law development of the elements of self-defense.
Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though this belief was later proven mistaken. "Detached reflection cannot be demanded in the presence of an uplifted knife," Justice Holmes aptly said, Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not necessarily a correct, judgment. See State v. Hipplewith, 33 N.J. 300, 316-17 (1960); State v. Mount, 73 N.J.L. 582, 583 (E. & A. 1905); State v. Lionetti, 93 N.J.L. 24 (Sup.Ct. 1919).
While it is not imperative that actual necessity exist, a valid plea of self-defense will not lie absent an actual (that is, honest) belief on the part of the defendant in the necessity of using force. While no case in New Jersey has addressed the point directly, the privilege of self-defense does not exist where the defendant's action is not prompted by a belief in its necessity: "He has no defense when he intentionally kills his enemy in complete ignorance of the fact that his enemy, when killed, was about to launch a deadly attack upon him." W. LaFave & A. Scott, Criminal Law § 53, at 394 (1972).
Honesty alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that her belief in the necessity to use force was reasonable. See, e.g., State v. Mellillo, 77 N.J.L. 505 (E. & A. 1908); State v. Mark Len, 108 N.J.L. 439, 440 (Sup.Ct. 1932). As originally proposed, the new Code of Criminal Justice would have eliminated the reasonableness requirement, allowing self-defense whenever the defendant honestly believed in the imminent need to act. See Commission Report, supra, Vol. I, at 26-27 (proposed Section 2C:3-4), and Vol. II: Commentary, at 82-83. This proposed change in the law was not accepted by the Legislature. N.J.S.A. 2C:3-4 as finally enacted retains the requirement that the defendant's belief be reasonable.
Thus, even when the defendant's belief in the need to kill in self-defense is conceded to be sincere, if it is found to have been unreasonable under the circumstances, such a belief cannot be held to constitute complete justification for a homicide.
With the foregoing standards in mind, we turn to an examination of the relevance of the proffered expert testimony to Gladys Kelly's claim of self-defense.
Gladys Kelly claims that she stabbed her husband in self-defense, believing he was about to kill her. The gist of the State's case was that Gladys Kelly was the aggressor, that she consciously intended to kill her husband, and that she certainly was not acting in self-defense.
The credibility of Gladys Kelly is a critical issue in this case. If the jury does not believe Gladys Kelly's account, it
The State argues that there is no need to bolster defendant's credibility with expert testimony concerning the battering because the State did not attempt to undermine defendant's testimony concerning her prior mistreatment at the hands of her husband. The State's claim is simply untrue. In her summation, the prosecutor suggested that had Ernest Kelly lived, he might have told a different story from the one Gladys told. (In its brief, the State argues that evidence in the case suggests that Gladys Kelly's claims of abuse could have been contradicted by her husband.) This is obviously a direct attempt to undermine defendant's testimony about her prior mistreatment.
Moreover, defendant's credibility was also attacked in other ways. Gladys Kelly's prior conviction for conspiracy to commit robbery was admitted into evidence for the express purpose of impeachment, even though this conviction had occurred nine years before the stabbing. Other questions, about Gladys Kelly's use of alcohol and drugs and about her premarital sexual conduct, were clearly efforts to impeach credibility.
As can be seen from our discussion of the expert testimony, Dr. Veronen would have bolstered Gladys Kelly's credibility.
On the facts in this case, we find that the expert testimony was relevant to Gladys Kelly's state of mind, namely, it was admissible to show she honestly believed she was in imminent danger of death. Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979) (on remand, trial court excluded expert testimony on battered-woman's syndrome; the Court of Appeals affirmed the exclusion of the testimony, holding that the trial court was not compelled to admit the evidence; 455 A.2d 893 (D.C. 1983)); Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Anaya, 438 A.2d 892 (Me. 1981); State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (Wash.Sup.Ct. 1984); see also People v. Minnis, 118 Ill.App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983) (expert testimony on battered-woman's syndrome admissible to explain reasons why defendant dismembered body of victim/husband where prosecution introduced fact of dismemberment as substantive evidence of guilt). But see State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981).
At the heart of the claim of self-defense was defendant's story that she had been repeatedly subjected to "beatings" over the course of her marriage. While defendant's testimony was somewhat lacking in detail, a juror could infer from the use of the word "beatings," as well as the detail given concerning some of these events (the choking, the biting, the use of fists),
The crucial issue of fact on which this expert's testimony would bear is why, given such allegedly severe and constant beatings, combined with threats to kill, defendant had not long ago left decedent. Whether raised by the prosecutor as a factual issue or not, our own common knowledge tells us that most of us, including the ordinary juror, would ask himself or herself just such a question. And our knowledge is bolstered by the experts' knowledge, for the experts point out that one of the common myths, apparently believed by most people, is that battered wives are free to leave. To some, this misconception is followed by the observation that the battered wife is masochistic, proven by her refusal to leave despite the severe beatings; to others, however, the fact that the battered wife stays on unquestionably suggests that the "beatings" could not have been too bad for if they had been, she certainly would have left. The expert could clear up these myths, by explaining that one of the common characteristics of a battered wife is her inability to leave despite such constant beatings; her "learned helplessness"; her lack of anywhere to go; her feeling that if she tried to leave, she would be subjected to even more merciless treatment; her belief in the omnipotence of her battering husband; and sometimes her hope that her husband will change his ways.
Unfortunately, in this case the State reinforced the myths about battered women. On cross-examination, when discussing an occasion when Mr. Kelly temporarily moved out of the
Even had the State not taken this approach, however, expert testimony would be essential to rebut the general misconceptions regarding battered women.
The difficulty with the expert's testimony is that it sounds as if an expert is giving knowledge to a jury about something the jury knows as well as anyone else, namely, the reasonableness of a person's fear of imminent serious danger. That is not at all, however, what this testimony is directly aimed at. It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge. After hearing the expert, instead of saying Gladys Kelly could not have been beaten up so badly for if she had, she certainly would have left, the jury could conclude that her failure to leave was very much part and parcel of her life as a battered wife. The jury could conclude that instead of casting doubt on the accuracy of her testimony about the severity and frequency of prior beatings, her failure to leave actually reinforced her credibility.
Since a retrial is necessary, we think it advisable to indicate the limit of the expert's testimony on this issue of reasonableness. It would not be proper for the expert to express the opinion that defendant's belief on that day was reasonable, not because this is the ultimate issue, but because the area of expert knowledge relates, in this regard, to the reasons for
Having determined that testimony about the battered-woman's syndrome is relevant, we now consider whether Dr. Veronen's testimony satisfies the limitations placed on expert testimony by Evidence Rule 56(2) and by applicable case law. See State v. Cavallo, 88 N.J. 508, 516 (1982). 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.
As previously discussed, a battering relationship embodies psychological and societal features that are not well understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of the average juror and thus is suitable for explanation through expert testimony.
The second requirement that must be met before expert testimony is permitted is a showing that the proposed expert's testimony would be reliable. The rationale for this requirement is that expert testimony seeks to assist the trier of fact. An expert opinion that is not reliable is of no assistance to anyone.
To meet the requirement that the expert's testimony be sufficiently reliable, defense counsel must show that the testimony satisfies New Jersey's standard of acceptability for scientific
In a relatively new field of research, such as that of the battered-woman's syndrome, there are three ways a proponent of scientific evidence can prove its general acceptance and thereby its reliability: (1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance. State v. Cavallo, 88 N.J. at 521. Applying those methods to the case at bar, we note that judicial opinions thus far have been split concerning the scientific acceptability of the syndrome and the methodology used by the researchers in this area.
Thus, the record before us reveals that the battered woman's syndrome has a sufficient scientific basis to produce uniform and reasonably reliable results as required by State v. Cavallo, and Evid.R. 56(2). The numerous books, articles and papers referred to earlier indicate the presence of a growing field of study and research about the battered woman's syndrome and recognition of the syndrome in the scientific field. However, while the record before us could require such a ruling, we refrain from conclusively ruling that Dr. Veronen's proffered testimony about the battered-woman's syndrome would satisfy New Jersey's standard of acceptability for scientific evidence. This is because the State was not given a full opportunity in the trial court to question Dr. Veronen's methodology in studying battered women or her implicit assertion that the battered-woman's syndrome has been accepted by the relevant scientific community.
Finally, before expert testimony may be presented, there must be a showing that the proffered expert witness has sufficient expertise to offer the intended testimony. State v. Cavallo, supra, 88 N.J. at 516. In this case, it appears that Dr. Veronen is qualified to testify as an expert. She has a Ph.D. in clinical psychology, as well as an M.A. from North Texas State. She is a member of four professional associations. As of 1980, when she was offered as a witness at Ms. Kelly's trial, Dr.
We have concluded that the appropriate disposal of this appeal is to reverse and remand for a new trial. On the record before us, although the trial court did not rule on the matter, it appears that Dr. Veronen qualified as an expert, and that the degree of reliability of the conclusions in this field of expertise was sufficient to allow their admission. Alternatively we could retain jurisdiction and remand, solely for the purpose of allowing the prosecutor to continue cross-examination of Dr.
Apart from her claims concerning the exclusion of the expert testimony, the defendant raises five additional issues on appeal. Although our disposition of this case makes it unnecessary to
During trial, defendant sought to introduce testimony from Edith Cannon, defendant's 17-year-old daughter by another marriage, to the effect that shortly before the fatal encounter she had told her mother that Ernest Kelly had been subjecting her to physical and sexual abuse since age 13. The defense asserted that this evidence of Glady Kelly's knowledge of the victim's prior aggressive behavior demonstrated that her fear of the decedent was justifiable and that her subsequent behavior was reasonable. See McCormick on Evidence § 249, at 588-89 (E. Cleary ed., 2d Ed. 1972); VI J. Wigmore Evidence § 1789, at 314 (Chad.Rev.Ed. 1972).
The trial court, however, excluded this evidence in reliance upon Evidence Rule 4,
Whether the probative value of a particular piece of evidence is outweighed by its potential prejudice is a decision normally left to the discretion of the trial court; and this "discretion is a broad one." State v. Sands, 76 N.J. 127 (1978); see also Evid.R. 4, Comment 1.
If the only relevance of this testimony was to reinforce the proof that defendant feared the decedent for good reason, its limited added force might very well be outweighed
Defense counsel also contends that the trial court erred in allowing the State to question defendant about her earlier conviction. Counsel asserts that the trial court "lost sight" of the grounds for admitting defendant's prior record. This claim is without merit.
Ms. Kelly was convicted of conspiracy to commit robbery in 1971, and over defense counsel's objection the trial court ruled that evidence of the earlier conviction was admissible. During cross-examination, the prosecution questioned Ms. Kelly about her earlier conviction:
That was the only time during the two week trial that evidence as to Ms. Kelly's prior conviction was elicited or referred to.
Prior convictions ordinarily may be used to impeach the defendant's credibility. State v. Sands, 76 N.J. 127, 146 (1978); N.J.S.A. 2A:81-12. The trial court, recognizing that, instructed the jury as to the limited purpose for which it could consider Ms. Kelly's conspiracy conviction:
There was no error on this point.
We reject defendant's contention that the prosecutor's conduct denied the defendant her right to receive a fair trial. The defense claims that the prosecutor improperly used closing arguments to glorify her function as a prosecutor and make an inflammatory appeal to the jury, and used her opening statement
Defendant also claims that the prosecutor was too aggressive, asked improper questions about Ms. Kelly's personal life in an attempt to cast aspersions on defendant's moral character, and made too many objections, most of which were overruled. While not condoning all aspects of the prosecutor's conduct, we conclude that, in the context of the entire trial, it did not cause defendant to be denied a fair trial. See State v. Tirone, 64 N.J. 222, 229 (1974). There were sufficient facts on which the jury could base its finding of guilt on the reckless manslaughter charge. In light of the entire record, any impropriety that did occur was harmless and incapable of producing an unjust result. See State v. LaPorte, 62 N.J. 312 (1973); R. 2:10-2.
The defendant argues that the charge to the jury regarding provocation as an element of manslaughter was in error because it did not state that reasonable and sufficient provocation may arise from a course of ill treatment. We agree that the instructions on provocation were deficient. It is well settled that when there is evidence of prior physical abuse
Ms. Kelly also contends that the sentence imposed — five years in state prison — was excessive. She asserts that imprisonment would result in a serious injustice that overrides the need to deter such conduct by others, N.J.S.A. 2C:44-1(d), and that she should instead be granted probation or entry into a release program. She cites several mitigating factors, including her abuse at the hands of Mr. Kelly and her children's need to have their mother at home.
The presumptive sentence for a second degree crime is seven years. N.J.S.A. 2C:44-1(f)(1). In ordering a sentence of five years, the trial court agreed with defendant that there was a preponderance of mitigating factors, allowing it to sentence
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
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.
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
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
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
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 courts 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 Wn.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)
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
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.
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.
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
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.
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.
Concurring in part and dissenting in part — Justice HANDLER — 1.
Similarly, legislative activity in this field is relatively new; for example, New Jersey's Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16 and the Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to-17.
In enacting the Prevention of Domestic Violence Act, the New Jersey Legislature recognized the pervasiveness and seriousness of domestic violence:
N.J.S.A. 2C:3-9(b) was never intended to serve the function ascribed to it by the State. In fact, inclusion of the provision in the Code appears to have been an error, which has since been corrected by its repeal. See L. 1981, c. 290. The reasons for the inclusion and repeal of this provision are concisely stated in the legislative history of the repealer:
In other words, when the original draft of the Code provided that an honest belief in the need for deadly force sufficed to establish self-defense, the Code had to deal with the situation in which that belief, though honest, had been recklessly formed. The subsequently repealed section, N.J.S.A. 2C:3-9(b), performed that function by providing that such an honest belief, recklessly formed, was no justification for offenses when culpability was based on that very same recklessness. The Code as passed, however, defined self-defense as requiring a reasonable belief, thereby rendering section 9(b) unnecessary since, under that definition, self-defense could not be established as a justification for any offense if the actor's belief in the need for force, though honest, was recklessly formed, i.e., was unreasonable. The repealer simply clarified the legislative intent that existed when the Code first became law, which was that self-defense based on a reasonable belief in the need for deadly force would constitute justification — a complete defense — to the charge of reckless manslaughter. If the jury here found defendant's belief was both honest and reasonable, it would be required to acquit her of all charges.
Defendant's counsel at oral argument made it clear that defendant's basic contention was that her belief in the immediate need to use deadly force was both honest and reasonable; and that the evidence concerning the battered-woman's syndrome was being offered solely on that issue. We therefore are not faced with any claim that a battered woman's honest belief in the need to use deadly force, even if objectively unreasonable, constitutes justification so long as its unreasonableness results from the psychological impact of the beatings. The effect of cases like State v. Sikora, 44 N.J. (1965) (opinion of psychiatrist that acts of defendant, admittedly sane, were predetermined by interaction of events and his abnormal character held inadmissible on issue of premeditation), and State v. Bess, 53 N.J. 10 (1968) (reasonableness of belief in need for deadly force not measured by what would appear "reasonable" to abnormal defendant) is not before us. Nor is there any claim that the battering provocation might have some legal effect beyond the potential reduction of defendant's culpability to manslaughter, or something other than an "immediate" need for deadly force will suffice. See State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983), (battered wife stabs sleeping husband).
There is, of course, some danger that any attempt to mitigate what may be undeserved punishment in these cases (by some further statutory differentiation of criminal responsibility) might weaken the general deterrent effect of our homicide laws. That is a matter the Legislature might wish to examine.