Heather Fleniken Cochran, Improving Prosecution of Battering Partners: Some Innovations in the Law of Evidence, 7 Tex. J. Women & L. 89, 114-122 (1997).

 

 I.     Introduction ........................................................ 90

 

II.    The Need for Intervention ........................................... 94

 

III.   The Emergence of Forced Prosecutions: "No Drop" Policies ............ 96

 

IV.    The Difference Between Stranger and Intimate Victims ................ 99

 

V.     Safety Planning .................................................... 101

 

VI.    Prosecuting the Batterer Without the Victim's Testimony ............ 102

 

       A. Voir Dire Examination ........................................... 104

 

       B. Photographs ..................................................... 104

                 

              C. Statements of the Victim, Eyewitnesses, and the Batterer ........ 105

 

       D. Expert Testimony ................................................ 109

 

VII.   A New Innovation in Going to Trial with the Battered Victim's

 

         Testimony ........................................................ 110

 

VIII.  Conclusion ......................................................... 113

 

APPENDIX A ................................................................ 114

 

 


    I met Daniel and the kids on the street accidentally. The kids wanted to come with me but he said no. Later, I was sitting on a favourite park bench and he came up to me, without the kids. He told me not to tell the truth in court  that if I did, he would take the kids and hide them. He started yelling, then pushed me against the bench. I started to lose my balance, then he pushed me on the chest and I twisted my leg as I fell. He then said if I told the truth I would never be able to talk again, and then he left. My leg was badly damaged and I had to wear a leg brace and use crutches. I was afraid to report to the police. [FN1]

    *90 I went on the stand, anyway. I had to walk right in front of Daniel  just a foot away. My leg was still very swollen and I was still on crutches. I told my story .... Daniel reacted by storming out of the courtroom, yelling that everyone was incompetent, that they had no right to keep him from his kids. The judge said nothing to Daniel about his behaviour. [FN2]

 

I. Introduction

 

  In 1995, Texas joined the forty five other states [FN3] in the Union that have amended their codes of criminal procedure to remove the spousal testimony privilege in cases where the defendant is being prosecuted for domestic violence crimes. [FN4] This change in criminal procedure has aided the successful prosecution of domestic batterers. [FN5] When discussing whether to recommend the passage of this law, the sponsoring committee in the Texas House of Representatives concluded that the unequal power structures in violent marriages precluded many victims from testifying about the abuse, and that this, in turn, hindered the state's ability to prosecute domestic batterers. [FN6] With the O.J. Simpson murder trial *91 splayed on the television, the public was turning its attention to the problem of domestic violence. Many people were asking themselves "What went wrong here?," and they wanted to prevent future domestic assaults.

 

  The abolition of the spousal testimony privilege in domestic violence cases was an important first step in helping prosecutors convict batterers. Because intimate victims have conflicting objectives in court, [FN7] they react differently on the witness stand than victims who do not know their attacker. These victims mayrefuse to testify because of their contradictory feelings. [FN8] Since they are often the only witnesses to the crime, they may hold the only evidence against the batterer, especially if the police did not come to the scene of the crime. [FN9]

 

  This paper proposes two ways to overcome the victims' reluctance to testify against their batterers. One method is for the prosecutor to go forward with the case without the victim as a trial witness. Such prosecution depends upon well trained law enforcement officers who will gather evidence at the crime scene, such as documenting the statements of the battered victim and witnesses. [FN10] At trial, the court may admit these statements under the excited utterance exception to the hearsay rule. [FN11] Officers may also take photographs of the victim [FN12] and the crime scene, which the jury can later consider in determining the facts in the case. [FN13] In addition, the prosecutor needs to coordinate with medical personnel since the trial court also may admit into evidence statements made by victims seeking medical diagnosis or treatment. [FN14] Even victims who do not testify can help the prosecutor gather evidence by having friends take photographs of their injuries and by keeping track of on going incidents. *92 Lastly, the testimony of an expert on the behavior of battered women serves to explain to the jury why the victim is absent from the trial. [FN15]

 

  The second way to overcome the battered victim's refusal to testify is to issue a subpoena that compels her testimony. [FN16] This course of action has been taken by several cities and is known as a "no drop" policy. [FN17] A "no drop" policy gets its name from the idea that the prosecutor will not drop the case against the domestic batterer, even if the victim changes her story or refuses to testify. [FN18] This takes the decision to testify away from the victim and reduces the pressure that the batterer places on the victim to stop the trial process. [FN19] The court appearance often adds trauma to the situation: Many domestic violence victims suffer guilt for bringing a loved one into the criminal justice system. [FN20] Others may know from their past experiences that speaking out about the batterer will only bring them more abuse. [FN21] Advocates for battered women report that even when the prosecutor successfully persuades the victim to testify, threatening looks from the accused to the victim are sometimes enough to silence her story in the courtroom. [FN22]

 

  The problem of intimidation and fear in the courthouse [FN23] can be combated. For example, a trained battered women's advocate could accompany each of the victims to the courthouse and stay with her throughout the trial. [FN24] In addition, jurisdictions could set aside special areas in the courthouse for domestic violence cases to allow victims to *93 remain separated from the batterer before the victims appear on the witness stand. Such separation of the victim and abuser could reduce the stress that a victim feels at the courthouse. [FN25]

 

  The Texas Code of Criminal Procedure currently addresses the fear of retaliation among child victims of sexual assault, [FN26] and the state legislature should extend this procedure to include victims of domestic violence. Under certain circumstances, the trial court may allow child victims to testify outside the physical presence of the accused. [FN27] The statute sets out alternative testimonial procedures, but the procedure most immune from constitutional attack is the provision that allows the youth to testify via closed circuit television. [FN28] This method allows the attorney for the state and the defendant's attorney to question the witness in a separate room, while the defendant, the court, and the finder of fact contemporaneously watch the child's testimony. [FN29] This procedure retains for the defendant's attorney the right to cross examine the child and make objections. [FN30] The court allows defendants to communicate with their attorneys during recesses or by audio contact, but the court otherwise shields the child witnesses from seeing the defendants. [FN31] This allows witnesses to testify without having to endure defendants' threatening looks or gestures.

 

  The Texas legislature should amend the Code of Criminal Procedure to allow victims of domestic violence to also testify by closed circuit television. The procedure should be discretionary with the court and would be available for suitable cases where there is a fear that retaliation will cause trauma to domestic violence victims. This option should be available to these witnesses as a part of their overall "safety plans." [FN32] Unlike witnesses to other crimes, intimate victims will likely face the defendants again without the protection of the court. Therefore, prosecutors should protect victims by helping victims formulate action plans that will help keep them safe after they have testified against their *94 batterers. [FN33]

 

  This paper is intended to guide prosecutors to send a message of no tolerance to batterers while keeping their victims safe. Part II of this paper briefly discusses the problem of domestic violence in the United States and, specifically, in Texas. Part III describes the emergence of no drop policies, and the effect that these policies have had on the prosecution of domestic batterers. Part IV explains why domestic violence merits special treatment in the criminal justice system by analyzing the differences between stranger and intimate witnesses. Part V urges prosecutors and other people who come into contact with victims of domestic violence to consider the victims' safety and help them with planning for their safety as they proceed throughout the trial and its aftermath. Part VI suggests ways to successfully prosecute domestic violence perpetrators without the testimony of victims through some innovations in the law of evidence. Finally, Part VII proposes a new criminal procedure for the testimony of domestic violence victims, which mirrors the one already in place for child victims of sexual assault, [FN34] and Part VIII briefly concludes.

 

II. The Need For Intervention

 

  Prosecutors should concentrate on domestic violence because ignoring the problem leads to future crime, [FN35] causes great harm to victims [FN36] and their children, [FN37] increases juvenile delinquency, [FN38] and places *95 great stress on police departments, [FN39] medical personnel, and mental health providers. [FN40] Allowing domestic violence to continue decreases employee productivity and contributes to absenteeism in the workplace. [FN41] The failure to intervene also imposes costs by increasing the number of homeless people. [FN42] Finally, without proper legal intervention, the cycle of domestic violence often repeats itself. [FN43]

 

  Similarly, Texas prosecutors cannot afford to overlook domestic violence. It occurs in households of every race and ethnicity, [FN44] it plagues *96 both genders, [FN45] and is blind to sexual orientation. [FN46] The frequency of abuse is staggering. For example, in Texas, the state's Department of Human Services reported in 1992 that 639,712 Texan women were physically assaulted by intimate partners, and at least 100,000 of those women reported frequent attacks  at least once a week. [FN47] Fortunately, intervening in domestic violence, through policies of mandatory arrests when probable cause exists and no drop prosecution of batterers, helps change the attitudes of abusers and will eventually decrease the incidents of domestic violence. [FN48]

 

III. The Emergence of Forced Prosecutions: "No Drop" Policies

 

  Recent studies concluding that the failure to prosecute domestic violence increases the physical and emotional harm to victims and their children [FN49] spurned a number of jurisdictions into tackling domestic violence, even when victims decline to voluntarily testify. [FN50] These policies of aggressively prosecuting batterers, either by compelling the victim to testify or by advancing to trial without the victim's testimony, are known as "no drop" policies.

 

  *97 In 1995, the Texas legislature took an important step toward helping prosecutors fight domestic violence [FN51] by creating an exception to the spousal testimony privilege for such cases. [FN52] Before this exception was adopted, battered spouses could testify voluntarily against the other spouse, even over the objection of the accused, but the state could not compel them to testify. [FN53] The prosecutor often assumed that the case depended on the victim's testimony because she was often the only witness to the crime. [FN54] If the victim was married to her batterer, then batterers could control their own prosecutions by coercing the victim into invoking her privilege against testifying against her spouse. [FN55] Prosecutors, who have a limited amount of resources, frequently dropped these cases because they were considered too difficult to prove without the victim's testimony. [FN56]

 

  As of September 1, 1995, [FN57] however, Texas prosecutors can compel a battered spouse's testimony by subpoena in the same manner as any other witness testifying without the benefit of an evidentiary privilege. This takes the decision to testify away from battered spouses. In practice, this has allowed jurisdictions to move forward and prosecute domestic violence perpetrators with fewer concerns that victims will change their minds and refuse to testify, [FN58] for the policy helps victims speak out by abating their fear of retaliation from their partner. [FN59] To illustrate, the city of Houston now concludes seventy percent of its domestic violence cases either by guilty pleas or convictions. [FN60] When the spousal testimony *98 privilege was still available to battered spouses, Houston had only a fifty percent disposal rate. [FN61]

 

  However, shortly after implementing its no drop policy, Houston hit a roadblock in a famous case involving Warren Moon, the former Houston Oiler's quarterback. While Moon was allegedly battering his wife, Felicia, their seven  year old child called 911 for help. When the case was ready for trial, Felicia refused to testify, so the prosecutor issued a subpoena to compel her testimony. [FN62] She testified at the trial, but it was against her wishes. [FN63] As a result of Felicia's unsuccessful challenge to the subpoena, the new no drop policy received much publicity. [FN64] Moon's acquittal accentuated the need for prosecutors to prepare domestic violence cases independently of the victims' testimony, even when the testimony can be compelled. [FN65]

 

  A no drop policy also allows prosecutors to advance to trial without the battered victim's testimony. In no drop jurisdictions, the prosecutor maintains discretion in issuing a subpoena to the battered victim. [FN66] The prosecutor may decline to compel the victim to testify for various reasons, such as in cases where the testimony would be too intrusive into private matters. [FN67] Of course, successfully prosecuting a batterer without the victim's testimony requires the existence of other evidence of the *99 abuse. [FN68]

 

  Instituting some form of no drop policy helps change the attitudes of domestic abusers. [FN69] Alison Frankel, author of a comprehensive article on no drop policies, states,

    [W]hen abusers are treated like criminals by prosecutors, they're regarded as criminals by the community. Conversely, when the system places the responsibility for prosecution on victims  some of whom ... are clearly not emotionally prepared for the burden  it sends the message that domestic violence is somehow different and less serious than other crimes. [FN70]

 

  It has been argued that where key players in the criminal justice system treat domestic violence offenders leniently, it legitimates the aggression in the eyes of many batterers. [FN71] It is to be hoped that the persistence of prosecutors in pursuing batterers will eventually deter such abusers from believing that domestic violence is a non criminal, personal issue. [FN72]

 

IV. The Difference Between Stranger and Intimate Victims

 

  Because of the continuing relationship between the victims and the perpetrators of domestic violence crimes, intimate witnesses have different perspectives than victims who do not know their abusers, and they feel differently about the legal system's ability to help them resolve the problem. Victims of domestic violence may depend on their abusers for economic support, [FN73] may fear retaliation more than stranger witnesses, [FN74] may minimize their own injuries, [FN75] and may want to keep *100 their families intact. [FN76] Frequently, victims hesitate to help prosecute their batterer because their past experience with the criminal justice system has shown them that law enforcement officers and court personnel cannot keep them safe. [FN77] If they testify, it may subject them to retaliation from the batterers. [FN78] Many prosecutors consider the victims' fears and desires when deciding whether to prosecute batterers because they believe that victims often know what is in their own best interests. [FN79]

 

  Since domestic violence creates problems for society as a whole, however, some commentators believe a witness should not be the sole decisionmaker in determining whether or not the prosecutor should pursue the batterer. They argue that prosecutors represent the public and, thus, should make their decisions based upon how the domestic violence crime affects both the particular victim and the community, rather than simply upon how the victim wants the prosecutor to handle the case. [FN80] Moreover, if the prosecutor defers to the expressed desires of the victim, the batterer quickly learns that he can control the decision to prosecute and thus escape punishment. [FN81] Even if a victim wants the prosecutor to go forward with the case and participates in it, her decision provides the batterer an incentive to threaten her with future harm, for, as one attorney for battered women has stated, "'[i] f the batterers control the victims ... then they control the prosecution."' [FN82]

 

  Fear of retaliation is common among battered women because they are familiar with the batterer's willingness to carry out his threats. [FN83] The batterer may threaten to inflict future physical harm upon the victim, her children, or her family, or threaten to take her children through a custody battle or kidnap them, or threaten to withhold economic support. [FN84] The batterer also may attempt to have the prosecutor charge the battered mother with failing to protect her children from the perpetrator's own abuse. [FN85] A National Crime Survey conducted in 1982 indicates that domestic violence victims' fears of retaliation are reasonable. [FN86] The data *101 showed that thirty two percent of intimate victims were abused again by the same perpetrator an average of three times in the six months following the initial attack, while only thirteen percent of stranger victims were assaulted even once by any stranger in the same period. [FN87] Because domestic violence victims have valid fears of retaliation, prosecutors must tailor their strategies to the safety needs of these witnesses, but without sacrificing the legal system's intervention.

 

V. Safety Planning

 

  Before embarking on the prosecution of domestic batterers, the prosecutor has an obligation to ensure that the victims will be safe. [FN88] The prosecutor should determine if these victims have access to information about social services and other legal options that might be available. [FN89] In addition to exposing them to counseling and information, this initial stage is the time at which the prosecutor should weigh the victim's needs and desires against the benefits of prosecution. The prosecutor should ask direct questions about both the current incident of violence and any pattern of abuse the perpetrator has inflicted on the victim. [FN90] These initial interviews with the victim will give the prosecutor information regarding the victim's safety and help the prosecutor make better trial decisions. [FN91]

 

  Prosecutors should work closely with domestic violence advocates and counselors and should direct victims to these trained professionals, who will be able to help the victims make decisions about their safety. Even if victims are unable to call the police for intervention when abuse occurs, there are usually ways for victims to help themselves stay safe. [FN92] Some counselors focus on addressing the victim's future needs by having the victim complete a preprinted safety plan, which is then reviewed with *102 the victim so that the plan may be tailored to her specific situation. [FN93] Other counselors may assist women in crisis by helping them to address their present needs. [FN94] Most importantly, this is the time to encourage victims to take action for themselves. The victim must be the originator of much of the plan; otherwise, she may not use it. [FN95]

 

  Initial information sessions with the victims can also improve subsequent prosecutions of domestic crime. Even if the victim is unwilling to testify about the abusive incident that prompted her to file criminal charges or seek other help, such sessions allow the prosecutor or counselor to educate the victim about preserving evidence when future battering occurs. [FN96] The victim should be instructed to keep a written record of all the abuse that occurs, which will help focus her testimony if she testifies at a later trial. Her account of specific incidences of abuse, such as, "He threw me down the stairs in March 1997," is apt to be more convincing than general allegations, such as, "He has been abusive in our marriage." Victims should also have friends, family members, or coworkers take photographs of their injuries to preserve the evidence for a future trial. [FN97] Teaching victims about their potential role in the prosecution of their case can help victims empower themselves as they decide to leave the abusers. [FN98]

 

VI. Prosecuting the Batterer Without the Victim's Testimony

 

  Several jurisdictions have started domestic violence task forces that coordinate the police department, emergency medical personnel, battered women's advocates, and the district attorney's office. [FN99] The combined efforts of these professionals can make it possible to preserve sufficient evidence to result in the conviction of batterers without the victim's testimony. [FN100] For example, when responding to a domestic violence *103 incident, law enforcement officers can gather statements from the victims and any eyewitnesses at the scene, and these out of court statements may be admissible at trial through the excited utterance exception to the hearsay rule. [FN101] In addition, statements that the police are able to elicit from the batterer are admissions by a party opponent, which are not hearsay and, therefore, admissible in court. [FN102] Officers may also produce at trial photographs they took while investigating the domestic assault; these photographs illustrate the injuries and demeanors of the victim, the batterer, and any children who were present, and they portray the nature of the crime scene. [FN103] Health care providers may also obtain the statements of victims, which the court can accept into evidence if the statements were made for the purpose of obtaining medical treatment. [FN104] Advocates for victims of domestic violence can also facilitate the conviction of batterers by encouraging victims to secure evidence on their own. Moreover, these advocates may testify as experts on the behavior of battered women, helping the jury to understand the victim's absence from the courtroom by confronting jurors' stereotypes of battered women. [FN105] Finally, the district attorney's office can improve its prosecution of batterers by formulating comprehensive voir dire questions that will better ensure an unbiased jury. [FN106] If these professionals work *104 together, the cases against domestic violence perpetrators can prevail without the battered victims' testimony.

 

A. Voir Dire Examination

 

  When prosecuting a batterer without his victim's testimony, the prosecutor should begin the trial process by carefully preparing voir dire examinations that take into account the victim's absence from the courtroom. There are many misconceptions about domestic violence, [FN107] and voir dire is the appropriate time to discover whether potential jurors are biased against prosecuting domestic violence perpetrators. Furthermore, voir dire can prepare juries for the victim's absence in the courtroom, [FN108] pave the way for expert testimony on the behavior of battered women, [FN109] and explain the victim's fear of retaliation. [FN110] Most importantly, obtaining an impartial jury sets the stage for a successful trial, resulting in the batterer's conviction. [FN111]

 

B. Photographs

 

  Photographs can show the jury the crime scene better than any testimony can.  "Batterers don't look like criminals, and, consequently, juries hesitate to convict. A photo can change their mind," states William Delahunt, District Attorney for Norfolk County, Massachusetts. [FN112] For this reason, all police cars should carry instant cameras for immediate processing. [FN113] Photographs are easily admissible in the courtroom if the photographer or another witness testifies, stating that the snapshot is an accurate depiction of the person or scene portrayed in the photograph. [FN114] *105 Therefore, it is important that the officers responding to a domestic violence call capture the images of the victim, the batterer, and any children present (whether or not any of these people appear physically harmed), and the nature of the crime scene. [FN115]

 

  Officers should take photographs of the victim from three perspectives  a full body shot, a medium range shot, and close range shots of particular injuries. [FN116] If the victim is female, a female officer should photograph the victim's injuries that clothing covers. [FN117] Evidence gatherers should also examine the battered victim for injuries in various stages of healing; if found, photographs of such injuries serve as evidence of the perpetrator's pattern of battering behavior. [FN118] Lastly, photographs of the victim's injuries should be taken again a few days after the abusive incident because bruising often will be evident by that time. [FN119]

 

  The injuries and demeanor of the victim are not the only images that should be captured on film, however. The responding officers also should take photographs of the batterer and any injuries that he might have. [FN120] Photographs of children at the crime scene may further aid in the batterer's conviction, since they tend to show the jury the perpetrator's disregard for the children's well being. [FN121] Finally, law enforcement personnel should capture on film the site of the crime as well, paying particular attention to any broken furniture, remnants of alcohol or drug use, weapons, or signs of struggle. [FN122] Without the testimony of the battered victim at trial, all of these recorded images become especially important in illustrating the crime for the jury.

 

C. Statements of the Victim, Eyewitnesses, and the Batterer

 

  Many cities have prosecutors who make use of the exceptions to the hearsay rule to introduce as trial evidence the out of court statements of *106 victims and other witnesses who do not testify, [FN123] although some prosecutors have encountered judges who are hesitant to admit such statements. [FN124] However, many of the statements made by victims or other witnesses are admissible under various exceptions to the hearsay rule, such as present sense impression, [FN125] excited (or spontaneous) utterance, [FN126] or medical diagnosis. [FN127] Also admissible at trial are out  of court statements made by the defendant, for such statements are not considered to be hearsay since they are made by the party opponent. [FN128] For instance, courts have routinely admitted 911 call recordings as exceptions to hearsay because the courts generally agree that these calls have a virtual guarantee of reliability. [FN129]

 

  An accurate and detailed police report of the domestic violence incident often provides the prosecutor with easily accessible sources of evidence. [FN130] If responding officers carefully record the demeanor of the victim and her exact statements, officers then have a great tool that aids their trial testimony regarding the details of the crime scene. In these situations, statements made to the officer may be admissible through the officer's testimony, even if the person who gave the statement is available to testify, but does not do so. [FN131]

 

  In 1992, the U.S. Supreme Court held that the Confrontation Clause does not require the prosecution to produce at trial the victim of the crime, nor does it require that the trial court find the victim unavailable in order for her out of court statements to be admissible, [FN132] thereby paving the way for the prosecution of batterers without the victim as a trial *107 witness. White v. Illinois [FN133] involved the prosecution of the sexual abuser of S.G., a four year old girl. [FN134] In that case, the child's babysitter heard her scream and rushed to her room, at which time S.G. told her babysitter about the abuse. [FN135] Shortly afterward, S.G. repeated her accusations to her mother and again to a police officer, who investigated the abusive incident forty five minutes after it occurred. [FN136] At trial, the babysitter, mother, and police officer testified to S.G.'s statements, which the trial court admitted into evidence under the excited utterance (or spontaneous declaration) exception to the hearsay rule. [FN137] The U.S. Supreme Court agreed, reasoning that spontaneous declarations likely are more reliable than in court statements: "A statement that has been offered in a moment of excitement  without the opportunity to reflect on the consequences of one's exclamation  may justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom." [FN138]

 

  In similar fashion, Texas courts have favorably interpreted the excited utterance exception to the hearsay rule, [FN139] allowing prosecutors to try domestic violence cases without requiring that the victim testify at trial. In McFarland v. State, [FN140] the court stated that

    [w]hile the period of time that lapsed between the occurrence of the startling event and the making of the statement is a factor to consider in determining the admissibility of such statements, the critical factor is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event. [FN141]

 

  In Short v. State, [FN142] the victim's out of court statement was admissible as an excited utterance, despite the fact that it was made four and one half hours after the startling event. [FN143]

 

  Around the country, a growing number of prosecutors now use the excited utterance exception to the hearsay rule when attempting to prove *108 their cases without the testimony of the victim. [FN144] One survey found that prosecutors used excited utterance statements in sixty four percent of the domestic violence cases in which the victim did not appear as a trial witness. [FN145] Therefore, law enforcement officers responding to calls involving domestic violence should make careful records of everything the victims, or others who are present, tell the officers, as well as make note of the speaker's demeanor because such documentation aids later efforts to prove that the declarant was in an excited state when she made the statements.

 

  Unlike the time constraints relating to present sense impression or excited utterance statements, there are no time contraints to consider for statements made to health care providers in the course of seeking medical treatment. [FN146] In White, the child's statments to medical personnel, in which she described the sexual abuse, were admitted under this hearsay exception, and it was irrelevant that the statements were made four hours after the abusive incident occurred. [FN147] If health care providers routinely make inquiries about injuries they suspect may result from domestic violence, [FN148] the victim's responses likely will be admissible at a criminal trial against the batterer. [FN149] Therefore, it is essential that prosecutors train and coordinate with emergency room and other health care personnel, [FN150] particularly in cases where the battered victim does not testify at trial.

 

  Often, the batterer will admit the assault to the police at the scene,  [FN151] *109 and the police should carefully detail that admission in their report. Later, if criminal charges are filed and the perpetrator pleads not guilty, this earlier statement could undermine his defense. Such a statement is an admission by a party opponent, which the trial court may allow into evidence through the testimony of any witness who heard the batterer make the statement. [FN152]

 

  Some observers assert that gathering statements at the crime scene prepares the prosecution so well for trial that perhaps abusers would be more likely to plea bargain or admit their guilt. [FN153] Such trial preparation has other benefits, as well. In the words of one attorney who represents battered victims, "'The beauty of good investigative work ... is that if it gets done routinely, defendants begin to realize that intimidating the victim accomplishes nothing.... You don't need to bring her to trial, she doesn't need to testify."' [FN154] At least one prosecutor agrees, claiming that good investigative work prevents the battered victim from attempting to persuade him to drop the charges against her abuser. [FN155]

 

D. Expert Testimony

 

  In domestic violence cases, experts may testify to educate the jury about battered women in general, even when the victim does not testify. [FN156] A battered woman may stay in a violent relationship for a host of reasons, delay or neglect reporting her abuse, or recant her story when she is forced to testify against her abuser. [FN157] This seemingly bizarre behavior might elicit negative emotions from jurors, which puts them in a difficult position to fairly weigh the evidence. [FN158] The trial testimony of a battered women's expert can help the jury realize that there are valid reasons why a victim of domestic violence stays in an abusive relationship, [FN159] and can explain the victim's reluctance to testify against her batterer. [FN160] When prosecutors can establish that the opinions of battered women's experts are relevant, Texas courts have allowed these *110 experts to testify in domestic violence cases. [FN161]

 

  Initially in cases involving battered women, prosecutors almost always used expert witnesses whose opinions regarding the victim's behavior were based upon the battered women's syndrome as theorized by Lenore Walker. [FN162] However, this explanation of the battered women's syndrome describes only a small percentage of the women who are victims of domestic violence. [FN163] Instead, many factors affect the battered woman's ability to leave or report her abusive situation, and serve as the basis for the "power and control" model of battering. [FN164] This model shows how coercion and threats, intimidation, emotional and economic abuse, isolation, denial and blame, threats against the victim's children, and male privilege work together to prevent a domestic violence victim from successfully leaving the abusive relationship. [FN165] This model is often more helpful for the jury because it accurately describes a much larger percentage of the women who experience domestic violence.

 

VII. A New Innovation in Going to Trial with the Battered Victim's Testimony

 

  Many jurisdictions that employ the previous strategies of going forward without the battered victim still strongly encourage the victim to *111 testify in felony cases. [FN166] The victim's testimony is more compelling than the other forms of evidence, and it may convey a more vivid image to the jury. However, many victims fear testifying in the batterer's presence, particularly when they have been systematically abused. [FN167] Domestic violence victims might be more willing to testify if they were permitted to do so without having to face the abuser.

 

  Texas has already addressed this problem when the victims are child victims of sexual assault. After the media heightened public sensitivity to the problem of child sexual abuse, the Texas legislature, in 1983, joined several other states [FN168] in enacting a law that gives the trial court the discretion to implement one of several methods of obtaining the child victim's testimony without the child having to testify in front of the defendant. [FN169] One option is to record the child's statements, either before or after the defendant's indictment, for use at trial. [FN170] Most importantly, the statute allows for closed circuit television testimony of the child. [FN171] With this method, only court personnel and persons contributing to the well  being of the child may be in the room while the attorneys and the judge question the victim. [FN172] This limitation relates to the legislative intent to preserve the emotional stability of the child, [FN173] since it is designed to reduce the trauma of confrontation.

 

  Significantly, the U.S. Supreme Court upheld the constitutionality of a similar law aimed at protecting child victims who testify from being further traumatized by their abusers, thereby paving the way for such a law to be extended to encompass the testimony of domestic violence victims. In Maryland v. Craig, [FN174] the Court held that the "Confrontation Clause [of the U.S. Constitution] does not guarantee criminal defendants an absolute right to a face to face meeting with the witness against them at trial." [FN175] The Craig case involved the criminal prosecution of a child sex offender. [FN176] At the trial, the State of Maryland used its procedure, similar to the Texas law, that allows children to testify via closed circuit television upon a finding that the child would suffer serious emotional *112 distress at having to testify in open court against the abuser. [FN177] In her appeal to the Supreme Court, the defendant claimed the procedure violated her constitutional right to confront her accuser. [FN178] The Court rejected this argument, concluding that the essence of confrontation is in place where the defendant's counsel is able to cross examine the witness under oath. [FN179] The Court also found that Maryland had a compelling state interest in light of the potential ill effect on the child if she were forced to testify in the presence of her abuser. [FN180]

 

  In Texas, the Court of Criminal Appeals also has opened an avenue through which the state's current law could be broadened to apply to a victim of domestic violence who testifies against her batterer. In Gonzales v. State, [FN181] the court extended Article 38.071's application to the testimony of non victim, child witnesses of crime, concluding that the Texas legislature intended to protect sensitive witnesses from having to face terrifying defendants. [FN182] Importantly, the court found that the non victim witness in Gonzales needed the protection afforded by the closed circuit television procedure, even though no Texas statute authorized the use of the procedure for a child witness to murder. [FN183] The court determined that the non victim witness would be unable to face the defendant without suffering severe emotional trauma and fear, and it concluded that it was more important to protect the witness than to have him testify in the defendant's presence in open court. [FN184] Since the state's highest criminal court has displayed a willingness to extend this procedure for testifying to witnesses other than child victims, the Texas legislature should extend this law to include victims of domestic violence.

 

  The same justifications for permitting a child victim to testify outside the presence of the defendant are also present with battered spouses. The public hasa growing outrage over domestic violence and, therefore, a greater willingness to provide for the prosecution of batterers. [FN185] However, prosecutors face difficulties in such cases because testifying in the batterer's presence further traumatizes a victim who has realistic fears that the batterer may retaliate against her for testifying. [FN186] Moreover, *113 other testifying options decrease the defendant's ability to control the trial process through controlling the victim witness, thereby increasing the likelihood of successful prosecution in domestic violence cases. [FN187]

 

VIII. Conclusion

 

  Prosecution of domestic violence shows batterers that their actions are a crime and that the public and the state take the abuse seriously. Because domestic violence impacts so many areas of our society, the public should demand that their jurisdictions implement no drop policies in prosecuting batterers for their crimes. Statistics show that no drop policies increase conviction rates in domestic violence cases. By holding more batterers accountable for their actions, no drop policies decrease the likelihood that the cycle of domestic violence will repeat itself.

 

  No drop policies require that prosecutors go forward with bringing the batterer to trial despite the battered victim's reluctance to do so. This is accomplished by prosecuting either without the victim's trial testimony or with the victim's compelled trial testimony. In cases where the battered victim does not testify at trial, successful prosecution of batterers can be achieved by training the local police department, emergency medical personnel, and battered victims advocates to ensure that they gather the necessary evidence. Comprehensive questioning of jurors during voir dire and the use of experts on the behavior and dynamics of battered women also are important. Even in cases where the victim is compelled to testify against her batterer, such additional evidence should be used to bolster the state's case.

 

  Prosecutors should not abandon efforts to persuade the battered victims to voluntarily testify against their abusers, however. To bring about voluntary testimony, prosecutors should educate victims about the trial process and protect them during trial through careful safety planning and assessment of their situation. Communities can help by encouraging their state legislators to adopt protective testifying procedures for battered partners who fear retaliation. To that end, the author urges the Texas legislature to amend Article 38.071 of the Texas Code of Criminal Procedure to permit victims of domestic violence to testify via closed circuit television. This procedure would reduce the trauma battered victims endure in testifying against their abusers and thus may help prosecutors persuade such victims to testify.

 

  The ability to convict batterers can change the attitudes of abusers: Domestic violence is a crime and will not be tolerated.

 

*114 APPENDIX A:

 

*115 PERSONALIZED SAFETY PLAN [FN188]

 

  The following steps represent my plan for increasing my safety and preparing in advance for the possibility for further violence. Although I do not have control over my partner's violence, I do have a choice about how to respond to him/her and how to best get myself and my children to safety.

 

  Step 1: Safety during a violent incident. Women cannot always avoid violent incidents. In order to increase safety, battered women may use a variety of strategies.

 

  I can use some or all of the following strategies:

 

  A. If I decide to leave, I will _________________________________.  (Practice how to get out safely. What doors, windows, elevators, stairwells, or fire escapes would I use?)

 

  B. I can keep my purse and car keys ready and put them _______________________ (place) in order to leave quickly.

 

  C. I can tell _________________________________ about the violence and request they call the police if they hear suspicious noises coming from my house.

 

  D. I can teach my children how to use the telephone to contact the police and the fire department. (Be careful about placing responsibility on children.)

 

  E. I will use ___________________ as my code word with my children or my friends so they can call for help.

 

  F. If I have to leave my home, I will go _________________________. (Decide this even if I do not think there will be a next time.) If I cannot go to the location above, then I can go to ______________________________________________ or _________________________________________.

 

  G. I can also teach some of these strategies to some/all of my children.

 

  H. When I expect we are going to have an argument, I will try to move to a space that has fewer risks, such as __________________________. (Try to avoid arguments in the bathroom, garage, kitchens, near weapons, or in rooms without access to an outside door.)

 

  I. I will use my judgment and intuition. If the situation is very serious, I can give my partner what he/she wants to calm him/her down. I have to protect myself until I/we are out of danger.

 

  *116 Step 2: Safety when preparing to leave. Battered women frequently leave the residence they share with the battering partner. Leaving must be done with a careful plan in order to increase safety. Batterers often strike back when they believe that a battered woman is leaving a relationship.

 

  I can use some or all of the following strategies:

 

  A. I will leave money and an extra set of keys with ____________________________ so I can leave quickly.

 

  B. I will keep copies of important documents or keys at __________________________________.

 

  C. To increase my independence, I will open an individual savings account by _______________________ (date), or I will find a safe place to hide cash.

 

  D. Other things I can do to increase my independence include: ________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________ _____________________________________.

 

  E. The domestic violence program's hotline number is ________________________________. I can seek shelter by calling this hotline. I will call ahead of time to find out the procedure for admission to the shelter.

 

  F. I can keep change for phone calls on me at all times. I understand that if I use my telephone calling card after I leave, the following month the telephone bill will tell my batterer those numbers that I called. To keep my telephone communications confidential, I must either use coins or get a friend to permit me to use his/her telephone calling card for a limited time when I first leave.

 

  G. I will check with ____________________________________ and ________________________ to see who would be able to let me stay with them or lend me some money.

 

  H. I can leave extra clothes with _________________________________.

 

  I. I will sit down and review my safety plan every ______________________ (no more than six weeks) in order to plan the safest way to leave the residence. _____________________________ (domestic violence advocate or friend) has agreed to help me review this plan.

 

  J. I will rehearse my escape plan and, as appropriate, practice it with my children.

 

  *117 Step 3: Safety in my own residence. (If he chooses or is forced to leave, or if I am in a new home.) There are many things that a woman can do to increase her safety; these measures can be added step by step. NEVER ASSUME  THAT HE WILL NOT FIND ME!!!

 

  Safety measures I can use include:

 

  A. I can change the locks on my doors and windows as soon as possible.

 

  B. I can replace wooden doors with steel/metal doors.

 

  C. I can install security systems including additional locks, window bars  (not generally recommended due to fire escape hazards), poles to wedge against doors, an electronic system, etc.

 

  D. I can purchase rope ladders ("fire ladders" are available from hardware and discount stores) to be used for escape from second floor windows.

 

  E. I can install smoke detectors and purchase fire extinguishers for each floor in my house/apartment.

 

  F. I can install an outside lighting system that lights up when a person is coming close to my house (motion detectors).

 

  G. I will teach my children how to use the telephone to make a collect call to me and to _________________________________________________________________ (friend/minister/other) in the event that my partner takes the children.

 

  H. I will tell people who take care of my children which people have permission to pick up my children and that my partner is not permitted to do so. Some will require a court order. The people I will inform about pick up include:

 


 

____  (school),

 

____  (day care staff),

 

____  (baby sitter),

 

____  (Sunday school teacher),

 

____  (teacher), and

 

____  (others).

 

 


  I. I can inform ___________________________________  (neighbor), _____________________________(pastor), and _____________________ (friend) that my partner no longer resides with me and that they should call the police if they observe my partner near my residence.

 

  *118 Step 4: Safety with a Protective Order. Many batterers obey protective orders, but no one can ever be sure which violent partner will obey and which will violate protective orders. I recognize that I may need to ask the police and the courts to enforce my Protective Order.

 

  The following are some steps that I can take to help the enforcement of my Protective Order:

 

  A. I will keep my Protective Order (and/or probation orders or other such legal documents) __________________________________ (location). (Always keep it on or near my person. If I change purses, that is the first thing that should go in it.)

 

  B. I will give my Protective Order to police/sheriff's departments in the community where I work, in those communities where I usually visit family or friends, and in the community where I live. (I will make sure it is filed properly with the district clerk.)

 

  C. The telephone number for the district clerk and local law enforcement agency is _________________________________. (The district clerk should contact all law enforcement agencies in my area. I should follow up and check to see if they need a certified copy of the Protective Order for enforcement.)

 

  D. For further safety, if I often visit other counties in _______________________ (state of residence), I will file my Protective Order with the police in those counties. I will register my Protective Order in the following counties: _______________________________, _____________________________, and ________________________. (If I move, I will get a modification to my Protective Order. Again, I will check with local law enforcement agencies. I may need to include my family/friends in my protective order.)

 

  E. I can call the local domestic violence program if I am not sure about B, C, or D, above, or if I have some problem with my Protective Order. The number to call is ________________________.

 

  F. I will inform my employer, my minister, my closest friend, and _____________________________ (other) that I have a Protective Order in effect. (I may give them copies, too.)

 

  G. If my partner destroys my Protective Order, I can get another certified copy from the courthouse by going to the District Clerk located at ______________________________________.

 

  H. If my partner violates the Protective Order, I can call the police and report a violation, contact my attorney, call my advocate, and/or advise the court of the violation. (Make sure it gets documented!!!)

 

  I. If the police do not help, I can contact my advocate or attorney to file a complaint with the chief of the police department. My advocate's *119 name is ________________________________ and phone number is ____________________. My attorney's name is _________________________________________________________ and phone number is ____________________.

 

  Step 5: Safety on the job and in public. Each battered woman must decide if and when she will tell others that her partner has battered her and that she may be at continued risk. Friends, family, and coworkers can help to protect women. Each woman should consider carefully which people to invite to help secure her safety.

 

  I might do any or all of the following:

 

  A. I can inform my boss, the security supervisor, and ______________________________ (other) at work of my situation.

 

  B. I can ask _____________________________ to help screen my telephone calls at work.

 

  C. When leaving work, I can __________________ _____________________________.

 

  D. When driving home, if problems occur, I can ________________________________________________ _____________________________.

 

  E. If I use public transit, I can ____________ _____________________________.

 

  F. I can use different grocery stores and shopping malls to conduct my business and shop at hours that are different from those hours in which I shopped when I resided with my battering partner.

 

  G. I can use a different bank and take care of my banking at hours that are different from those hours in which I banked when I resided with my battering partner.

 

  H. I can also _______________________________________________.

 

  I. I will always remember to be careful and watchful. I must always "look over my shoulder" and be cautious of any person or car that might be following me.

 

  Step 6: Safety and drug or alcohol use. Most people in this culture use alcohol. Many use mood altering drugs. Much of this use is legal and some is not. The legal outcomes of using illegal drugs can be very hard on a battered woman, may hurt her relationship with her children, and put her at a disadvantage in other legal actions with her battering partner. Therefore, women should carefully consider the potential cost of the use of illegal drugs. Beyond this, the use of any alcohol or other drugs can reduce a woman's awareness and ability to act quickly to protect herself from her battering partner. Furthermore, the *120 use of alcohol or other drugs by the batterer may give him/her an excuse to use violence. Therefore, in the context of drug or alcohol use, a woman needs to make specific safety plans.

 

  If drug or alcohol use has occurred in my relationship with the battering partner, I can enhance my safety by doing some or all of the following:

 

  A. If I am going to use, I can do so in a safe place and with people who understand the risk of violence and are committed to my safety.

 

  B. I can also _________________________________________________.

 

  C. If my partner is using, I can _____________________________.

 

  D. To safeguard my children, I might ________________________________________ and _____________________________________.

 

  Step 7: Safety and my emotional health. The experience of being battered and verbally degraded by partners is usually exhausting and emotionally draining. The process of building a new life for myself takes MUCH COURAGE AND INCREDIBLE ENERGY.

 

  To conserve my emotional energy and resources and to avoid hard emotional times, I can do some of the following:

 

  A. If I feel down and ready to return to a potentially abusive situation, I can ______________________________________ ___________________________________.

 

  B. When I have to communicate with my partner in person or by telephone, I can ______________________________________ ___________________________________.

 

  C. I can try to use "I can ..." statements with myself and to be assertive with others.

 

  D. I can tell myself "__________________________________________" whenever I feel others are trying to control me.

 

  E. Ican read ___________________________________________ to help me feel stronger.

 

  F. I can call ___________________________________________________, __________________________________, and _____________________________ as other resources to be of support to me.

 

  G. Other things I can do to help myself feel stronger are ____________________ ______________________________________ _______________________________________.

 

  H. I can take care of myself by ______________________________________________ *121 ____________________________________ ________________________________.

 

  I. I can attend workshops and support groups at the domestic violence program or _______________________________________, or ____________________________________ to gain support and strengthen my relationships with other people.

 

  Step 8: Items to take when leaving. When women leave partners, it is important to take certain items with them. Beyond this, women sometimes give an extra copy of papers and an extra set of clothing to a friend just in case they must leave quickly.

 

  These items might best be placed in one location, so that if we have to leave in a hurry, I can grab them quickly. When I leave, I should take:

 


 

Identification for myself                  Work permits

 

My birth certificate                       Green Card

 

Children's birth certificates              Passports

 

Social security cards                      Medical records (all family members)

 

School and vaccination records             Insurance papers

 

Driver's license and vehicle registration  Welfare identification

 

Money                                      Marriage/divorce certificates

 

Checkbook, ATM card                        Address book

 

Credit cards                               Pictures

 



Keys: House, car, office                   Jewelry

 

Medications                                Small saleable objects

 

Children's favorite toys and/or blankets   Items of special sentimental value

 

 


Telephone numbers I need to know:

 

Police Department  home

 

_________________________________

Police Department  school

 

_________________________________

Police Department  work

 

_________________________________

Battered Women's Program

 

_________________________________

District Clerk (for registry of protective orders)

 

_________________________________

*122 Work number

 

_________________________________

Supervisor's home number

 

_________________________________

Minister

 

_________________________________

Attorney

 

_________________________________

School/Daycare

 

_________________________________

Doctor

 

_________________________________

Family member

 

_________________________________

Friend

 

_________________________________

Other

 

_________________________________

 

[FNa1]. J.D. Candidate, University of Texas at Austin School of Law, May 1998; B.A., College of William and Mary, 1994. I would like to acknowledge Sarah M. Buel, whose tireless efforts to end domestic violence have inspired many people along the way.

 

[FN1]. Janet Freeman, From Pillar to Post: One Woman's Experience of Battering and the Systems That "Help," in LISTENING TO THE THUNDER: ADVOCATES TALK ABOUT THE BATTERED WOMEN'S MOVEMENT 23, 31 (Leslie Timmins ed., 1995).

 

[FN2]. Id. at 33.

 

[FN3]. The remaining states, Alabama, Georgia, Louisiana, Massachusetts, and Missouri, as well as the District of Columbia, allow battered spouses to voluntarily testify against their batterers. See Ala. Code § 12 21 227 (1995); Ga. Code Ann. § 24 9 23(a) (1995); La. Code Evid. Ann. art. 505 (West 1995); Mass. Gen. Laws Ann. ch. 233, § 20 (West Supp. 1997); Mo. Ann. Stat. § 546.260 (West 1987); D.C. Code Ann. § 2 1355 (1994).

 

[FN4]. See Tex. Code Crim. P. Ann. art. 38.10 (West Supp. 1997) ("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.") Under the former procedural rule, a spouse could voluntarily testify against her batterer, but the state could not compel that victim to testify. Now, however, prosecutors in Texas can subpoena a battered spouse, compelling that victim's testimony. See id.

 

[FN5]. See Cheryl Hanna, No Right to Choose: Mandated Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1894 (1996). Many victims of domestic violence are not married to their batterers; thus, prosecutors have always been able to compel the testimony of these victims. However, the passage of these laws seems to have been a catalyst for prosecution of all domestic batterers, whether married or not.

 

[FN6]. See HOUSE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS, H.B. 35, 74th Leg., (Tex. 1995). The "Background" section reads as follows:

    Victims of domestic violence are often the only witnesses to the violence. Because of this, when a victim chooses not to testify in a criminal proceeding, he or she may unintentionally weaken the case against the perpetrator, and the case may be dismissed due to lack of evidence. Some believe that victims of domestic violence are in relationships with unequal power structures and if given a choice of whether or not to testify, the victim may be coerced by the abuser into not testifying against the abuser.

Id.

 

[FN7]. Many victims suffer from ambivalence in the courtroom: They may love the perpetrator or depend on him for financial support. Sara M. Buel, Adjunct Professor, Class Lecture in the Domestic Violence and the Law Seminar, University of Texas School of Law (Spring 1997). If the batterer is convicted, the victim may be unable to support herself while he is in jail. See id. She may also believe that he will not be convicted even if she testifies, and that her testimony will exact retaliation against her. See id.

 

[FN8]. See id.

 

[FN9]. See id.

 

[FN10]. See infra notes 101 02, 130 31 and accompanying text.

 

[FN11]. See Fed. R. Evid. 803(2); Tex. R. Crim. Evid. 803(2); Short v. State, 658 S.W.2d 250, 254 55 (Tex. App.  Houston [1st Dist.] 1983) (holding that statements are admissible as spontaneous utterances if they were made while the speaker was "still dominated by the emotions" caused by the exciting or painful event), aff'd, 671 S.W.2d 888 (Tex. Crim. App. 1984).

 

[FN12]. For this purpose, the Polaroid Corp. has developed special film, called high definition grid film, which has scaling on the side that illustrates the size of the injury. See Videotape: Domestic Violence Injury Documentation (Polaroid Corp. 1997). Requests for this video can be made by calling Polaroid at 1 800 392 1170, ext. 007.

 

[FN13]. See infra notes 112 22 and accompanying text.

 

[FN14]. See Fed. R. Evid. 803(4); Tex. R. Crim. Evid. 803(4).

 

[FN15]. See Adam Nossiter, New Witness for the Prosecution, N.Y. TIMES, June 9, 1996, at E4.

 

[FN16]. See Hanna, supra note 5, at 1865 (discussing the pros and cons of using the state's power, such as in subpoenas, for prosecution purposes).

 

[FN17]. See Angela Corsilles, Note, No Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63 FORDHAM L. REV. 853, 858 (1994).

 

[FN18]. See id.

 

[FN19]. See Developments in the Law  Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1540 (1993) [hereinafter Legal Responses to Domestic Violence] ("[A]ppearance of compulsion shields a woman from blame and pressure.").

 

[FN20]. See Buel, supra note 7.

 

[FN21]. This fear is founded in reality, for many women experience a pattern of escalating violence after they report a batterer. See, e.g., Brown v. Graboski, 922 F.2d 1097, 1101 03 (3d Cir. 1991) (presenting an incident of the pattern of escalating violence in a domestic relationship).

 

[FN22]. Telephone Interview with Merrill Marchal, Center for Battered Women, Austin, Tex. (Apr. 7, 1997).

 

[FN23]. See Patricia Nealon, Troubles of Battered Women in Cambridge Court Decried, BOSTON GLOBE, Oct. 22, 1992, at 34 (portraying women who feel unprotected in a local courthouse that allows men to intimidate women in the hallways and forces the women to sit by themselves as they wait to confront their batterers).

 

[FN24]. The Quincy, Massachusetts, program has advocates who go with domestic violence victims to the courtroom and stay with them throughout their time at the courthouse. See Legal Responses to Domestic Violence, supra note 19, at 1517.

 

[FN25]. See Nealon, supra note 23.

 

[FN26]. See Tex. Code Crim. P. Ann. art. 38.071 (West Supp. 1997)  (allowing a child victim of sexual assault to confront her attacker via closed  circuit television). This allows the victim to stay separated from the attacker throughout the trial and thus eliminates the fear of seeing the batterer.

 

[FN27]. See id.

 

[FN28]. See id.

 

[FN29]. See id.

 

[FN30]. See id.

 

[FN31]. See id.

 

[FN32]. Safety plans help victims decide for themselves how to better avoid dangerous situations and confrontations with their abusers. See Personalized Safety Plan, infra Appendix A (adapted from the safety plan used by the Center for Battered Women, Austin, Texas).

 

[FN33]. See Sarah M. Buel, Domestic Violence Safety Planning to Keep Victims Alive and Avoid Liability: Practical Recommendations for Lawyers & Their Clients (1997) (unpublished manuscript, on file with the Texas Journal of Women and the Law). Professor Buel urges all professionals to help victims of domestic violence determine options to keep them safe and to write them in formal safety plans. See Buel, supra note 7.

 

[FN34]. See Tex. Code Crim. P. Ann. art. 38.071.

 

[FN35]. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, VIOLENCE BETWEEN INTIMATES (Nov. 1994) [hereinafter VIOLENCE BETWEEN INTIMATES]. The FBI estimated that about 15% of all murders in 1992 were committed by intimates. See id. at 1. However, if only the female murder victims are counted, the percentage rises dramatically. See id. at 2.

 

[FN36]. See generally id. Victims experience psychological problems and suffer higher risks of rape, miscarriage, abortion, alcohol and drug abuse, and general mental illness. See Eve S. Buzawa & Carl G. Buzawa, Introduction to DO ARRESTS AND RESTRAINING ORDERS WORK? 1, 3 (Eve S. Buzawa & Carl G. Buzawa eds., 1996). Even more alarming is that victims of domestic violence have an attempted suicide rate that is five times higher than that of the general population. See id.

 

[FN37]. The children of these violent unions suffer. Before they are born, their fathers subject them to abuse; at least 30% of women are battered during their pregnancy, and many abusers target the abdomen. See Sarah M. Buel, Legal Services Must Improve Responses to Violence Against Women: Intake, Awareness, Attitudes and Priorities Need to Change, THE REPORTER (Mass. Legal Assistance Corp.), Feb. 1992, at 20. In a 1989 study, the March of Dimes reported that more babies are born with birth defects as a result of their mothers being battered during pregnancy than from the combination of all the diseases and illnesses for which pregnant women are immunized. See id. After they are born, children who live in homes where spousal abuse occurs are at a higher risk of being physically abused themselves; the rate of child abuse and neglect in these homes increases by an alarming 1500 percent. See S. REP. NO. 101 545, at 37 (1990). Even those who are spared physical abuse may witness the battering, despite the efforts of parents to hide it from the children. See Buzawa & Buzawa, supra note 36, at 3.

 

[FN38]. Juveniles who witness violence in the home are 24% more likely to commit sexual assault crimes, 74% more likely to commit crimes against the person (including assault, robbery, and theft), 50% more likely to abuse alcohol and drugs, and have a 7% higher likelihood of committing suicide than children who have not witnessed domestic violence. See Buel, supra note 7. Young men may also use violence while trying to protect their mothers. Sarah Buel explains that "[s]ixty three percent of the young men between the ages of 11 and 20 who are doing time for homicide have killed their mother's batterer." Buel, supra note 37, at 20.

 

[FN39]. Domestic violence requires more response time from police than all other felonies combined. See Legal Responses to Domestic Violence, supra note 19, at 1501.

 

[FN40]. See Roberta L. Valente, Domestic Violence and the Law, in THE IMPACT OF DOMESTIC VIOLENCE ON YOUR LEGAL PRACTICE: A LAWYER'S HANDBOOK 1 1, 1 1 to 3  3 (Deborah M. Goelman et al. eds., 1996) [hereinafter THE IMPACT OF DOMESTIC VIOLENCE]. Valente notes that "[d]omestic abuse costs Americans $67 billion a year in property damage and loss, medical costs, mental health care, police and fire protection, and victim services." Id. at 1 1 to 1 2.

 

[FN41]. See Fred Kuperberg & Mark S. Lieblein, Corporate Liability, in THE IMPACT OF DOMESTIC VIOLENCE , supra note 40, at 10 6, 10 6.

 

[FN42]. One in three homeless people report domestic violence as being the main cause of their homelessness. See Susan A. Lynch, Real Property: Land Use and Zoning, in THE IMPACT OF DOMESTIC VIOLENCE, supra note 40, at 6 7, 6 7.

 

[FN43]. The witnessing of spousal battery as a child may result in a tendency to experience or engage in domestic violence as an adult: Female victims of domestic violence are six times more likely to have seen their mothers being battered, and batterers are ten times more likely to have come from abusive homes. See Buzawa & Buzawa, supra note 36, at 3. Unless the legal system does something to effectively curtail domestic violence, the cycle is likely doomed to repeat itself. See Naomi R. Cahn & Lisa G. Lerman, Prosecuting Woman Abuse, in WOMAN BATTERING: POLICY RESPONSES 95, 97 (Michael Steinman ed., 1991).

 

[FN44]. See VIOLENCE BETWEEN INTIMATES, supra note 35, at 2; see also Soraya M. Coley & Joyce O. Beckett, Black Battered Women: A Review of Empirical Literature, 66 J. COUNSELING & DEV. 266 (1988) (discussing the presence and impact of domestic violence on the African American population); Jenny Rivera, Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials, 14 B.C. THIRD WORLD L.J. 231, 232 (1994) (comparing cultural differences in the Hispanic population as they relate to domestic violence); Wife Killing is Murder!, CAAAV VOICE (Comm. Against Anti Asian Violence), Spring 1989, at 1 (criticizing the use of the cultural defense in cases of domestic violence against Asian women).

 

[FN45]. See VIOLENCE BETWEEN INTIMATES, supra note 35, at 2. It must be noted, however, that the U.S. Department of Justice reports that females are assaulted by intimates at a rate ten times more frequently than males. On average, women experience over 572,000 attacks of domestic violence each year, compared to the 49,000 incidences men experience. See id. Due to these statistics, this paper limits its scope to the problem of male batterers harming female victims. Thus, in this paper, feminine pronouns refer to the battered victim, while masculine pronouns are used to refer to the batterer. This limitation is not intended to minimize the problem of female abusers and male victims.

 

[FN46]. See generally NAMING THE VIOLENCE: SPEAKING OUT ABOUT LESBIAN BATTERING (Kerry Lobel ed., 1986) (compilation of articles discussing the prevalance of domestic violence in the lesbian community and specific issues that arise as a result of the problem).

 

[FN47]. See TEXAS DEP'T OF HUMAN SERVS., 1992 ANNUAL REPORT 67 (1992).

 

[FN48]. See infra text accompanying notes 69 72.

 

[FN49]. See Donald J. Rebovich, Prosecution Response to Domestic Violence, in DO ARRESTS AND RESTRAINING ORDERS WORK?, supra note 36, at 176, 177.

 

[FN50]. Many jurisdictions have implemented no drop policies. A few of those jurisdictions are San Diego and Oakland, California; Knoxville, Tennessee; Quincy, Massachusetts; Atlanta, Georgia; Dade, Palm Beach, and Broward County, Florida; and Houston, Texas. See Allison Frankel et al., Domestic Disaster, AM. LAW., June 1996, at 56. One of the most progressive of these jurisdictions is San Diego, California. Casey Gwinn, an assistant district attorney in San Diego, has implemented a complete domestic violence community action plan. See NATIONAL COUNCIL OF JUVENILE & FAMILY CT. JUDGES, FAMILY VIOLENCE: STATE OF  THE ART COURT PRACTICES 57 (1992) [hereinafter FAMILY VIOLENCE].

 

[FN51]. See Malinda L. Seymore, Against the Peace and Dignity of the State: Spousal Violence and Spousal Privilege, 2 TEX. WESLEYAN L. REV. 239, 241 (1995).

 

[FN52]. See Tex. Code Crim. P. Ann. art. 38.10 (West Supp. 1997)  (creating an exception to the spousal testimony privilege when the defendant is charged with committing a crime against his spouse, a minor child, or another person living in the home of either spouse). The spousal testimony privilege stems from the historical view that a woman was joined as one with her husband, which extinguished a woman's legal rights. See Seymore, supra note 51, at 252  60. Since a criminal defendant could not be compelled to testify, his wife could not be forced to do so, either. See id.

 

[FN53]. See Fuentes v. State, 775 S.W.2d 64, 66 (Tex. App.  Houston [1st. Dist.] 1989, no pet.).

 

[FN54]. See Corsilles, supra note 17, at 867.

 

[FN55]. In jurisdictions without no drop policies, batterers often employ various methods to intimidate their victims into dropping the criminal charges. See id. at 868. It follows from this fact that batterers could coerce their victims to invoke the spousal testimony privilege as yet another means of intimidation.

 

[FN56]. See id. at 867.

 

[FN57]. See Tex. Code Crim. P. Ann. art. 38.10.

 

[FN58]. The prosecutor must still decide if forcing the victim to testify will impair her safety. This is always a balancing act; sending a no tolerance message to the batterer and keeping the victim safe are sometimes contradictory goals.

 

[FN59]. See Corsilles, supra note 17, at 874 ("[S]ome batterers cease harassing their victims after they discover that the victim no longer controls the case.").

 

[FN60]. See Frankel, supra note 50, at 56.

 

[FN61]. See id. "Disposal rate" refers to the rate at which a prosecutor obtains guilty pleas or convictions of batterers. See id.

 

[FN62]. See Richard Connelly, Fighting Family Violence, TEX. LAW., June 10, 1996, at 1; Moon Over Hawaii, TEX. LAW., Feb. 5, 1996, at 3.

 

[FN63]. See Terry Kliewer, Moon Case Takes Shine Off Abuse Law, But Statute Will Stay, HOUS. CHRON., Feb. 25, 1996, at 1.

 

[FN64]. See Stefanie Asin, Moon Case Highlights Violence Issue, HOUS. CHRON., Feb. 23, 1996, at 23; Connelly, supra note 62, at 20; Kliewer, supra note 63, at 1.

 

[FN65]. See Kliewer, supra note 63, at 1. The prosecutor in this case might have had better success had (s)he used, in addition to Felicia's compelled testimony, the child's 911 call as evidence. Statements contained on 911 tapes may be admissible under the present sense impression or excited utterance exceptions to the hearsay rule. See United States v. Mejia Valez, 855 F. Supp. 607, 613 (E.D.N.Y. 1994) (admitting 911 tapes under the present sense impression and excited utterance exceptions to the hearsay rule); United States v. Campbell, 782 F. Supp. 1258, 1260 61 (N.D. Ill. 1991) (holding a 911 call admissible as an excited utterance and a present sense impression because it was contemporaneous with the crime). The testimony of an expert on the behavior of battered victims likely would have further aided the prosecutor's case against Moon. Such an expert would have explained to the jury the reasons why a battered woman may be unwilling to testify against her abuser. If the 911 call had been entered into evidence, expert testimony would have been especially important, for it would have helped the jury to better understand the inconsistencies created by the juxtaposition of Felicia's compelled testimony and her child's 911 call.

 

[FN66]. See Corsilles, supra note 17, at 859.

 

[FN67]. See Hanna, supra note 5, at 1876 (relating the emotional hardship on a victim facing interrogation into her sexual practices).

 

[FN68]. See infra notes 99 104, 112 55 and accompanying text.

 

[FN69]. See State v. Frost, 577 A.2d 1282, 1285 (N.J. Super. Ct. App. Div. 1990) (describing the arresting police officer's account of the change in the batterer's cocky attitude when the batterer learned that the officer, rather than the victim, had signed the criminal complaint).

 

[FN70]. Frankel, supra note 50, at 57.

 

[FN71]. See Eve Buzawa et al., The Role of Arrest in Domestic Verses Stranger Assault, in DO ARRESTS AND RESTRAINING ORDERS WORK?, supra note 36, at 150, 151.

 

[FN72]. But see Hanna, supra note 5, at 1894 (describing the dilemmas and criticisms regarding no drop policies).

 

[FN73]. See Buel, supra note 37, at 4 5 (explaining the limited options of battered women who rely on their partner's economic support and the inadequacy of welfare benefits).

 

[FN74]. This fear is justified. Sarah Buel notes that "[m]ore battered women are murdered while trying to leave than at any other time, so it is irresponsible to simply tell them, 'You need to leave."' See id. at 18.

 

[FN75]. See State v. Frost, 577 A.2d 1282, 1286 87 (N.J. Super. Ct. App. Div. 1990) (recounting the testimony of an expert witness, who testified that minimizing the abuse and blaming oneself are two of the many characteristics of an abused woman).

 

[FN76]. See id.

 

[FN77]. See Frankel, supra note 50, at 60.

 

[FN78]. See Corsilles, supra note 17, at 875.

 

[FN79]. See id.

 

[FN80]. See Seymore, supra note 51, at 239.

 

[FN81]. See Corsilles, supra note 17, at 866.

 

[FN82]. Frankel, supra note 50, at 60 (quoting attorney Victoria Lutz of the Pace Battered Women's Justice Center).

 

[FN83]. Telephone Interview with Merrill Marchal, supra note 22.

 

[FN84]. See Buel, supra note 7.

 

[FN85]. In many states, the mother of abused children can have her parental rights terminated on the grounds that she has failed to protect her children from the abuser, even in cases where the mother is also a victim of the abuse. See, e.g., In re Glenn G., 587 N.Y.S.2d 464, 470 (1992).

 

[FN86]. See Barbara Hart, Battered Women and the Criminal Justice System, in DO ARRESTS AND RESTRAINING ORDERS WORK?, supra note 36, at 98, 99.

 

[FN87]. See id.; see also Cahn & Lerman, supra note 43, at 97.

 

[FN88]. See Buel, supra note 7.

 

[FN89]. Many of the battered women who eventually seek aid from Austin's Center for Battered Women are unaware that they could have received help when their battering began, while others have said that they were too embarrassed to ask for help. Telephone Interview with Merrill Marchal, supra note 22.

 

[FN90]. See Buel, supra note 7.

 

[FN91]. If the prosecutor can ascertain a pattern of abuse from interviews with the victim, they may be able to introduce evidence of this past behavior during the trial. See Tex. R. Crim. Evid. 404(b) (allowing other crimes, wrongs, or acts to be introduced to show that the perpetrator had, among other things, the motive, opportunity, intent, or knowledge to commit the crime for which he is charged).

 

[FN92]. At the very least, a victim should have the toll free number, 1 800  799 SAFE. This is the National Domestic Abuse hotline, whose counselors can assist victims with crisis intervention and help victims establish a safety plan. See Buel, supra note 7.

 

[FN93]. See, e.g., Personalized Safety Plan, infra Appendix A.

 

[FN94]. Telephone Interview with Merrill Marchal, supra note 22.

 

[FN95]. See id.

 

[FN96].See Buel, supra note 7.

 

[FN97]. As a former prosecutor in Massachusetts, Sarah Buel was able to convict a batterer of nine counts of domestic assault because she had counseled the victim to carefully document her injuries to help her refresh her memory when she was ready to help the state convict her husband. See 60 Minutes: Alive and Well in Quincy (CBS television broadcast, Feb. 3, 1993). The victim was a dentist and had her employees take photographs of her injuries while they were still fresh, and these photographs helped convince the jury of her injuries. See id.

 

[FN98]. See Buel, supra note 7.

 

[FN99]. See generally FAMILY VIOLENCE, supra note 50 (chronicling eighteen jurisdictions with domestic violence task forces, which involve the community, the police, emergency personnel, and the district attorney's office).

 

[FN100]. The San Diego, California, task force prosecutes batterers without the victim's testimony in 70% of its domestic violence cases; nevertheless, its overall conviction rate of batterers is 88%. See id. 57 61.

 

[FN101]. See Fed. R. Evid. 803(2); Tex. R. Crim. Evid. 803(2); King v. State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997) (holding that an individual's statement relating to the startling event was admissable as an excited utterance); Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995) (holding that the statements of an eyewitness to murder were admissable as excited utterances even though they were spoken one hour after the crime); Short v. State, 658 S.W.2d 250, 254 55 (Tex. App.  Houston [1st Dist.] 1983) (holding that statements are admissible as spontaneous utterances if they were made while the speaker was "still dominated by the emotions" caused by the exciting or painful event), aff'd, 671 S.W.2d 888 (Tex. Crim. App. 1984).

 

[FN102]. See Fed. R. Evid. 801(d)(2); Tex. R. Crim. Evid. 801(e)(2); see also Serrano v. State, 936 S.W.2d 387, 392 (Tex. App.  Houston [14th Dist.] 1996, pet. ref'd) (holding that statements made by the defendant that are against his interest cannot later be kept out of the trial because they lack trustworthiness).

 

[FN103]. See infra notes 112 22 and accompanying text.

 

[FN104]. See Fed. R. Evid. 803(4); Tex. R. Crim. Evid. 803(4);  Moyer v. State, 948 S.W.2d 525, 528 (Tex. App.  Ft. Worth 1997, pet. ref'd) ("[W]hen a patient makes a statement [to medical personnel] for purposes of medical diagnosis or treatment ... those statements are admissible as an exception to the hearsay rule."). If the victim made these statements while still upset by the abusive incident, then they also may be admissible as excited utterances. See Fed. R. Evid. 803(2); Tex. R. Crim. Evid. 803(2); Penry v. State, 903 S.W.2d 715, 750 (Tex. Crim. App. 1995) (allowing a rape victim's statement to her physician, in which she described her attacker, to be admitted into evidence under the excited utterance exception to the hearsay rule).

 

[FN105]. See infra notes 156 65 and accompanying text.

 

[FN106]. See infra notes 107 11 and accompanying text.

 

[FN107]. Many people initially blame the victim of domestic violence, wondering why the woman stayed in a situation where she was repeatedly harmed. See Buel, supra note 7.

 

[FN108]. Some of these voir dire questions could include: "With domestic violence as the number one cause of injury to women in this country, how many of you disagree with the state's decision to press charges even if the victim does not want them [sic] to?" and "How many of you think that a victim might feel that she cannot testify against her abuser out of loyalty? Out of fear? Out of love?" Sarah M. Buel, Voir Dire in Domestic Violence Cases 3 (adapted from other materials) (1996) (unpublished manuscript, on file with the Texas Journal of Women and the Law).

 

[FN109]. See infra notes 156 65 and accompanying text.

 

[FN110]. Examples of this type of voir dire questioning are: "How many of you believe that a victim might be too afraid to testify against her abuser?" and "Do you agree that if someone is scared to testify they might not come to court?" Buel, supra note 108, at 3 4.

 

[FN111]. See id. at 1.

 

[FN112]. Videotape: Domestic Violence Injury Documentation, supra note 12.

 

[FN113]. See Frankel, supra note 50, at 65. The Polaroid Corp. sells evidence kits to law enforcement agencies and health care providers for this very purpose. Any organization interested in purchasing this equipment can contact Polaroid at 1 800 392 1170, ext. 007.

 

[FN114]. See United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. 1981) (holding that a witness who testifies that the photo is a fair and accurate representation of the actual scene or event may authenticate that photograph, even if that witness did not take the picture or see the picture being taken).

 

[FN115]. For step by step instructions explaining what officers should look for and photograph at the scene of a domestic violence incident, see Videotape: Domestic Violence Injury Documentation, supra note 12.

 

[FN116]. See id.

 

[FN117]. See id. Batterers often harm their victims in the chest, abdomen, and other areas of the body hidden by clothing. See id.

 

[FN118]. Evidence of patterned abusive behavior helps the prosecutor's arguments at the batterer's bail hearing, as well as aids battered women's advocates in formulating a workable safety plan for the victim. See id.

 

[FN119]. See id.

 

[FN120]. See id.

 

[FN121]. See id.

 

[FN122]. See id.

 

[FN123]. See Frankel, supra note 50, at 63 64 (identifying jurisdictions that use this strategy).

 

[FN124]. See id. at 62 (interviewing a prosecutor who described the initial reluctance of one city's judges to admit excited utterances and statements made against the speaker's interest).

 

[FN125]. See Fed. R. Evid. 803(1); Tex. R. Crim. Evid. 803(1).

 

[FN126]. See Fed. R. Evid. 803(2); Tex. R. Crim. Evid. 803(2).

 

[FN127]. See Fed. R. Evid. 803(4); Tex. R. Crim. Evid. 803(4).

 

[FN128]. See Fed. R. Evid. 801(d)(2); Tex. R. Crim. Evid. 801(e)(2).

 

[FN129]. See United States v. Mejia Valez, 855 F. Supp. 607, 613  (E.D.N.Y. 1994) (admitting 911 tapes under the present sense impression and excited utterance exceptions to the hearsay rule); United States v. Campbell, 782 F. Supp. 1258, 1260 61 (N.D. Ill. 1991) (holding a 911 call admissible as an excited utterance and a present sense impression because it was contemporaneous with the crime). It should be noted that a subpoena may be required to obtain 911 tapes and receipt of them may take a long time. See Frankel, supra note 50, at 65.

 

[FN130]. See Videotape: Domestic Violence Injury Documentation, supra note 12.

 

[FN131]. See White v. Illinois, 502 U.S. 346, 356 57 (1992) (holding that the Confrontation Clause of the U.S. Constitution does not mandate that the trial court first find that the declarant is unavailable before admitting statements the declarant made to other people, as long as those statements also fall under an exception to the hearsay rule).

 

[FN132]. See id.

 

[FN133]. 502 U.S. 346 (1992).

 

[FN134]. See id. at 349.

 

[FN135]. See id.

 

[FN136]. See id. at 349 50.

 

[FN137]. See id. at 350; see also Fed. R. Evid. 803(2) (providing that a statement relating to a startling event or condition is an exception to the hearsay rule if the statement is made while the declarant is still under the stress of the event).

 

[FN138]. White, 502 U.S. at 355 56.

 

[FN139]. Tex. R. Crim. Evid. 803(2) (describing an excited utterance 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").

 

[FN140]. 845 S.W.2d 824 (Tex. Crim. App. 1992)

 

[FN141]. See id. at 846.

 

[FN142]. 658 S.W.2d 250 (Tex. App.  Houston [1st Dist.] 1983), aff'd,  671 S.W.2d 888 (Tex. Crim. App. 1984).

 

[FN143]. See id. at 255.

 

[FN144]. See Frankel, supra note 50, at 64.

 

[FN145]. See Rebovich, supra note 49, at 186.

 

[FN146]. See Tex. R. Crim. Evid. 803(4) (providing no statutory time limit for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment"); see also Fed. R. Evid. 803(4) (providing that statements made to medical personnel for the purpose of treatment or diagnosis are exceptions to the hearsay rule); United States v. Newman, 965 F.2d 206, 210 (7th Cir. 1992) (allowing a statement to a nonphysician to be admitted under the hearsay exception for statements made to health care providers).

 

[FN147]. See White v. Illinois, 502 U.S. 346, 350 (1992).

 

[FN148]. See Videotape: Polaroid Domestic Violence Response Video: Health Care Professionals (Polaroid Corp. 1997) [hereinafter Videotape: Health Care Officials] (advocating new medical intake forms containing questions about domestic violence).

 

[FN149]. The courts allow wide latitude in entering statements into evidence under this hearsay exception, including statements that identify the abuser. See, e.g., United States v. Joe, 8 F.3d 1488, 1494 95 (10th Cir. 1993) (allowing a statement in which the sexually abused victim, who was receiving medical treatment at the time, identified the perpetrator).

 

[FN150]. Medical personnel should equip themselves with instant cameras to document victims' injuries. See Videotape: Health Care Officials, supra note 148.

 

[FN151]. Telephone Interview with Lieuenant Mike Kimbro, Travis County Police Dep't, Austin, Tex. (Apr. 4, 1997).

 

[FN152]. See Fed. R. Evid. 801(d)(2); Tex. R. Crim. Evid. 801(d)(2) (both rules provide that a statement made by a party is not hearsay if it is offered against against that party).

 

[FN153]. See Corsilles, supra note 17, at 874 & n.150.

 

[FN154]. See Frankel, supra note 50, at 64 (quoting attorney Victoria Lutz of the Pace Battered Women's Justice Center).

 

[FN155]. See id. (describing the views of a San Diego, California, prosecutor).

 

[FN156]. See Tex. R. Crim. Evid. 702 (providing that expert opinions may be used when they "will assist the trier of fact to understand the evidence or to determine a fact in issue").

 

[FN157]. See Joan M. Schroeder, Note, Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer, 76 IOWA L. REV. 553, 553 (1991).

 

[FN158]. See id.

 

[FN159]. See id.

 

[FN160]. See id. at 560 61.

 

[FN161]. See, e.g., Schweinle v. State, 893 S.W.2d 708, 714 (Tex. App.   Texarkana 1995) (holding that the trial court has the discretion to admit the testimony of a battered women's expert), rev'd on other grounds, 915 S.W.2d 17 (Tex. Crim. App. 1996); see also Fielder v. State, 756 S.W.2d 309 (Tex. Crim. App. 1988) (reversing the conviction of a battered woman where the trial court excluded the testimony of a psychologist who explained why a battered woman would endure the abusive treatment). Cf. Vasquez v. State, 819 S.W.2d 932 (Tex. App.  Corpus Christi 1991, pet. ref'd) (permitting an expert to educate the jury about responses of child sexual abuse victims, as long as the expert did not tie her opinions to the particular facts of the case).

 

[FN162]. See Lenore Walker, THE BATTERED WOMAN (1979). Lenore Walker's model conveniently explained the behavior of battered women. She furthered two theories  "cycle of violence" and "learned helplessness." The cycle of violence theory postulates that battering begins with a tension building stage, which is then followed by an incident of acute violence, and concludes with a "honeymoon" period where the batterer says he is sorry and begs the victim for forgiveness. See id. at 55 70. The learned helplessness theory involved a study of dogs who were repeatedly given electric shocks when they tried to leave their cage. See id. at 45. Lenore Walker analogized this study to battered women, who are punished in each of their repeated attempts to leave the relationship and, thus, eventually believe that they cannot positively affect their current situation. See id. at 45 54.

 

[FN163]. See Buel, supra note 7.

 

[FN164]. See Visual Aid: Power and Control Wheel (Domestic Abuse Intervention Project, Duluth, Minn.). For a copy of the Power and Control Wheel, readers may contact their local battered women's shelter or the National Hotline for Domestic Violence, 1 800 799 SAFE.

 

[FN165]. See id.

 

[FN166]. See Frankel, supra note 50, at 60 61 (identifying Miami, Atlanta, Houston, and the Bronx in New York City as jurisdictions that follow such an approach in prosecuting domestic violence cases).

 

[FN167]. See Nealon, supra note 23, at 34.

 

[FN168]. See Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 HARV. L. REV. 806, 808 (1985).

 

[FN169]. See Tex. Code Crim. P. Ann. art. 38.071 (West Supp. 1997).

 

[FN170]. See id. § 2.

 

[FN171]. See id. § 3.

 

[FN172]. See id.

 

[FN173]. See id. § 7.

 

[FN174]. 497 U.S. 836 (1990).

 

[FN175]. Id. at 836.

 

[FN176]. See id.

 

[FN177]. See Md. Code Ann., Cts. & Jud. Proc. § 9 102 (1995) (providing that, subject to certain limitations, a court can hear the testimony of child victims through closed circuit television in lieu of the victim's face to face confrontation with the accused).

 

[FN178]. See Craig, 497 U.S. at 836.

 

[FN179]. See id. at 837.

 

[FN180]. See id.

 

[FN181]. 818 S.W.2d 756 (Tex. Crim. App. 1991).

 

[FN182]. See id. at 764 65 & n.16.

 

[FN183]. See id.

 

[FN184]. See id.

 

[FN185]. See Corsilles, supra note 17, at 853 54 (stating that legislatures all over the country have multiplied their laws combating domestic violence in their communities).

 

[FN186]. See supra text accompanying notes 83 87.

 

[FN187]. See Frankel, supra note 50, at 60.

 

[FN188]. Adapted from Personalized Safety Plan (City of Austin, Tex.), 1997.