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STATE OF NEW JERSEY,
PLAINTIFF-RESPONDENT, v. GLADYS KELLY,
DEFENDANT-APPELLANT
A-99
Supreme
Court of New Jersey
97
N.J. 178; 478 A.2d 364
May
10, 1983, Argued July 24, 1984, Decided
PRIOR HISTORY:
On certification to the Superior Court, Appellate
Division
COUNSEL: Sheri
Woliver, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph H. Rodriguez,
Public Defender, attorney).
Hilary L.
Brunell, Assistant Prosecutor, argued the cause
for respondent (George L. Schneider, Essex County
Prosecutor, attorney).
97 N.J. 178, *;
478 A.2d 364, **
Elizabeth M.
Schneider, a member of the New York bar, argued
the cause for amici curiae American Civil
Liberties Union of New Jersey and New Jersey
Coalition for Battered Women (Frank Askin and
Stephen M. Latimer, attorneys).
Nadine Taub
submitted a brief on behalf of amicus curiae
American Psychological Association (Nadine Taub,
attorney; Kit Kinports and Bruce J. Ennis,
members of the District of Columbia bar, and
Donald N. Bersoff, a member of the Maryland bar,
of counsel).
JUDGES: For
reversal -- Chief Justice Wilentz, and Justices
Clifford, Schreiber, Pollock, O'Hern and
Garibaldi. Concurring in part and dissenting in
part -- Justice Handler. The opinion of the Court
was delivered by Wilentz, C.J. Handler, J.,
concurring in part and dissenting in part.
OPINIONBY:
WILENTZ
OPINION: [*187]
[**368] The central issue before us is whether
expert testimony about the battered-woman's
syndrome is admissible to help establish a claim
of self-defense in a homicide case. The question
is one of first impression in this state. We
hold, based on the limited record before us (the
State not having had a full opportunity to prove
the contrary), that the battered-woman's syndrome
is an appropriate subject for expert testimony;
that 97 N.J. 178, *187; 478 A.2d 364, **368
the experts'
conclusions, despite the relative newness of the
field, are sufficiently reliable under New
Jersey's standards for scientific testimony; and
that defendant's expert was sufficiently
qualified. Accordingly, we reverse and remand for
a new trial. If on retrial after a full
examination of these issues the evidence
continues to support these conclusions, the
expert's testimony on the battered-woman's
syndrome shall be admitted as relevant to the
honesty and reasonableness of defendant's belief
that deadly force was necessary to protect her
against death or serious bodily harm.
I.
On May 24, 1980,
defendant, Gladys Kelly, stabbed her husband,
Ernest, with a pair of scissors. He died shortly
thereafter at a nearby hospital. The couple had
been married [*188] for seven years, during which
time Ernest had periodically attacked Gladys.
According to Ms. Kelly, he assaulted her that
afternoon, and she stabbed him in self-defense,
fearing that he would kill her if she did not
act.
Ms. Kelly was
indicted for murder. At trial, she did not deny
stabbing her husband, but asserted that her
action was in self-defense. To establish the
requisite state of mind for her self-defense
claim, Ms. Kelly called Dr. Lois Veronen as an
expert witness to testify about the
battered-woman's syndrome. 97 N.J. 178, *188; 478
A.2d 364, **368
After hearing a
lengthy voir dire examination of Dr. Veronen, the
trial court ruled that expert testimony
concerning the syndrome was inadmissible on the
self-defense issue under <=1> State v.
Bess, 53 N.J. 10 (1968). Apparently the court
believed that the sole purpose of this testimony
was to explain and justify defendant's perception
of the danger rather than to show the objective
reasonableness of that perception.
Ms. Kelly was
convicted of reckless manslaughter. In an
unreported decision relying in part on Bess, the
Appellate Division affirmed the conviction. We
granted certification, <=2> 91 N.J. 539
(1983), and now reverse.
Defendant raises
six issues on appeal. She claims: (1) that the
trial court erred in excluding expert testimony
on the battered-woman's syndrome; (2) that the
trial court's charge on provocation was
erroneous; (3) that the trial court erred in
excluding testimony that Mr. Kelly had sexually
assaulted one of Ms. Kelly's daughters; (4) that
improper prosecutorial conduct caused her to be
denied a fair trial; (5) that the trial court
erred in admitting testimony [**369] about her
earlier conspiracy conviction; and (6) that her
sentence was excessive.
II.
97 N.J. 178,
*188; 478 A.2d 364, **369
The Kellys had a
stormy marriage. Some of the details of their
relationship, especially the stabbing, are
disputed. The following is Ms. Kelly's version of
what happened -- a version that the jury could
have accepted and, if they had, a version [*189]
that would make the proffered expert testimony
not only relevant, but critical.
The day after
the marriage, Mr. Kelly got drunk and knocked Ms.
Kelly down. Although a period of calm followed
the initial attack, the next seven years were
accompanied by periodic and frequent beatings,
sometimes as often as once a week. During the
attacks, which generally occurred when Mr. Kelly
was drunk, he threatened to kill Ms. Kelly and to
cut off parts of her body if she tried to leave
him. Mr. Kelly often moved out of the house after
an attack, later returning with a promise that he
would change his ways. Until the day of the
homicide, only one of the attacks had taken place
in public.
The day before
the stabbing, Gladys and Ernest went shopping.
They did not have enough money to buy food for
the entire week, so Ernest said he would give his
wife more money the next day.
The following
morning he left for work. Ms. Kelly next saw her
husband late that afternoon at a friend's house.
She had gone there with her daughter, Annette, to
ask Ernest for money to buy food. He told her to
wait until they 97 N.J. 178, *189; 478 A.2d 364,
**369
got home, and
shortly thereafter the Kellys left. After walking
past several houses, Mr. Kelly, who was drunk,
angrily asked "What the hell did you come
around here for?" He then grabbed the collar
of her dress, and the two fell to the ground. He
choked her by pushing his fingers against her
throat, punched or hit her face, and bit her leg.
A crowd gathered
on the street. Two men from the crowd separated
them, just as Gladys felt that she was
"passing out" from being choked.
Fearing that Annette had been pushed around in
the crowd, Gladys then left to look for her. Upon
finding Annette, defendant noticed that Annette
had defendant's pocketbook. Gladys had dropped it
during the fight. Annette had retrieved it and
gave her mother the pocketbook.
After finding
her daughter, Ms. Kelly then observed Mr. Kelly
running toward her with his hands raised. Within
seconds [*190] he was right next to her. Unsure
of whether he had armed himself while she was
looking for their daughter, and thinking that he
had come back to kill her, she grabbed a pair of
scissors from her pocketbook. She tried to scare
him away, but instead stabbed him. n1
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
97 N.J. 178,
*190; 478 A.2d 364, **369
n1 This version
of the homicide -- with a drunk Mr. Kelly as the
aggresor both in pushing Ms. Kelly to the ground
and again in rushing at her with his hands in a
threatening position after the two had been
separated -- is sharply disputed by the State.
The prosecution presented testimony intended to
show that the initial scuffle was started by
Gladys; that upon disentanglement, while she was
restrained by bystanders, she stated that she
intended to kill Ernest; that she then chased
after him, and upon catching up with him stabbed
him with a pair of scissors taken from her
pocketbook.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
III.
The central
question in this case is whether the trial court
erred in its exclusion of expert testimony on the
battered-woman's syndrome. That testimony was
intended to explain defendant's state of mind and
bolster her claim of self-defense. We shall first
examine the nature of the battered-woman's
syndrome and then consider the expert testimony
proffered in this case and its relevancy.
In the past
decade social scientists and the legal community
began to examine the forces that generate and
perpetuate wife beating and violence in the 97
N.J. 178, *190; 478 A.2d 364, **369
family. n2 What
[**370] has been revealed is [*191] that the
problem affects many more people than had been
thought and that the victims of the violence are
not only the battered family members (almost
always either the wife or the children). There
are also many other strangers to the family who
feel the devastating impact, often in the form of
violence, of the psychological damage suffered by
the victims.
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n2 The works
that comprise the basic study of the problem of
battered women are all relatively recent. See,
e.g., R. Langley & R. Levy, Wife Beating: The
Silent Crisis (1979); D. Martin, Battered Wives
(1976); L. Walker, The Battered Woman (1979); R.
Gelles, The Violent Home: A Study of Physical
Aggression between Husbands and Wives (1971);
Battered Women: A Psychosociological Study of
Domestic Violence (M. Roy ed. 1977).
Similarly,
legislative activity in this field is relatively
new; for example, New Jersey's Prevention of
Domestic Violence Act, L.1981, c. 426, N.J.S.A.
2C:25-1 to -16 and the Shelters for Victims of
Domestic Violence Act, L.1979, c. 337, N.J.S.A.
30:14-1 to -17.
97 N.J. 178,
*191; 478 A.2d 364, **370
In enacting the
Prevention of Domestic Violence Act, the New
Jersey Legislature recognized the pervasiveness
and seriousness of domestic violence:
The Legislature
finds and declares that domestic violence is a
serious crime against society; that there are
thousands of persons in this State who are
regularly beaten, tortured and in some cases even
killed by their spouses or cohabitants; that a
significant number of women who are assaulted are
pregnant; that victims of domestic violence come
from all societal and economic backgrounds and
ethnic groups; that there is a positive
correlation between spouse abuse and child abuse;
and that children, even when they are not
themselves physically assaulted, suffer deep and
lasting emotional effects from exposure to
domestic violence. It is therefore, the intent of
the Legislature to assure the victims of domestic
violence the maximum protection from abuse the
law can provide. [N.J.S.A. 2C:25-2].
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
Due to the high
incidence of unreported abuse (the FBI and other
law enforcement experts believe that wife abuse
is the most unreported crime in the United
States), estimates vary of the number of American
women who are beaten regularly by their husband,
boyfriend, or the dominant male figure in their
lives. One recent estimate puts the number of
women beaten yearly at over one 97 N.J. 178,
*191; 478 A.2d 364, **370
million. See
California Advisory Comm'n on Family Law,
Domestic Violence app. F at 119 (1st report
1978). The state police statistics show more than
18,000 reported cases of domestic violence in New
Jersey during the first nine months of 1983, in
83% of which the victim was female. It is clear
that the American home, once assumed to be the
cornerstone of our society, is often a violent
place. n3
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n3 In her book,
The Battered Woman, Dr. Lenore Walker cites
research by sociologists Straus, Gelles, and
Steinmetz finding that in 1976 at least one
assault between family members occurred in 28% of
all American homes. Id. at 70.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
While common law
notions that assigned an inferior status to
women, and to wives in particular, no longer
represent the state [*192] of the law as
reflected in statutes and cases, many
commentators assert that a bias against battered
women still exists, institutionalized in the
attitudes of law enforcement agencies unwilling
to pursue or uninterested in pursuing wife
beating cases. n4 See Comment, The Battered
Wife's Dilemma: Kill or be Killed, 97 N.J. 178,
*192; 478 A.2d 364, **370
32 Hastings
L.J., 895, 897-911 (1981).
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n4 In 1976, for
example, battered women in California and New
York instituted class actions alleging that the
police customarily denied women legal protection
by refusing to assist battered women or arrest
their abusing husbands. The cases were settled by
consent judgment. Scott v. Hart, No. C-76-2395
(N.D.Cal., filed Oct. 28, 1976); <=4> Bruno
v. Codd, 90 Misc.2d 1047, 396 N.Y.S.2d 974
(Sup.Ct.1977), aff'd, <=5> 47 N.Y.2d 582,
393 N.E.2d 976, 419 N.Y.S.2d 901 (1979).
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
Another problem
is the currency enjoyed by stereotypes and myths
concerning the characteristics of battered women
and their reasons for staying in battering
relationships. Some popular misconceptions about
battered women include the beliefs that they are
masochistic and actually enjoy their beatings,
that they purposely provoke their husbands into
violent behavior, and, most critically, as we
shall soon see, that women who remain in
battering relationships are free to leave their
abusers at any time. See L. Walker, The Battered
Woman at 19-31 (1979). 97 N.J. 178, *192; 478
A.2d 364, **370
As these cases
so tragically suggest, not only do many women
suffer physical abuse at the hands of their
mates, but a significant [**371] number of women
kill (or are killed by) their husbands. In 1978,
murders between husband and wife or girlfriend
and boyfriend constituted 13% of all murders
committed in the United States. Undoubtedly some
of these arose from battering incidents. Federal
Bureau of Investigation, Crime in the United
States 1978 (1978). Men were the victims in 48%
of these killings. Id.
As the problem
of battered women has begun to receive more
attention, sociologists and psychologists have
begun to focus on the effects a sustained pattern
of physical and psychological [*193] abuse can
have on a woman. The effects of such abuse are
what some scientific observers have termed
"the battered-woman's syndrome," a
series of common characteristics that appear in
women who are abused physically and
psychologically over an extended period of time
by the dominant male figure in their lives. Dr.
Lenore Walker, a prominent writer on the
battered-woman's syndrome, defines the battered
woman as one who is repeatedly subjected to any
forceful physical or psychological behavior by a
man in order to coerce her to do something he
wants her to do without concern for her rights.
Battered women include wives or women in any form
of intimate relationships with men. Furthermore,
in order to be classified as a battered woman,
the couple must go through the battering cycle at
least twice. Any woman may find herself in an
abusive relationship with a man once. If it 97
N.J. 178, *193; 478 A.2d 364, **371
occurs a second
time, and she remains in the situation, she is
defined as a battered woman. [L. Walker, supra,
at xv].
According to Dr.
Walker, relationships characterized by physical
abuse tend to develop battering cycles. Violent
behavior directed at the woman occurs in three
distinct and repetitive stages that vary both in
duration and intensity depending on the
individuals involved. L. Walker, supra, at 55-70.
Phase one of the
battering cycle is referred to as the
"tension-building stage," during which
the battering male engages in minor battering
incidents and verbal abuse while the woman, beset
by fear and tension, attempts to be as placating
and passive as possible in order to stave off
more serious violence. Id. at 56-59.
Phase two of the
battering cycle is the "acute battering
incident." At some point during phase one,
the tension between the battered woman and the
batterer becomes intolerable and more serious
violence inevitable. The triggering event that
initiates phase two is most often an internal or
external event in the life of the battering male,
but provocation for more severe violence is
sometimes provided by the woman who can no longer
tolerate or control her phase-one anger and
anxiety. Id. at 59-65.
97 N.J. 178,
*193; 478 A.2d 364, **371
Phase three of
the battering cycle is characterized by extreme
contrition and loving behavior on the part of the
battering [*194] male. During this period the man
will often mix his pleas for forgiveness and
protestations of devotion with promises to seek
professional help, to stop drinking, n5 and to
refrain from further violence. For some couples,
this period of relative calm may last as long as
several months, but in a battering relationship
the affection and contrition of the man will
eventually fade and phase one of the cycle will
start anew. Id. at 65-70.
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n5 Alcohol is
often an important component of violence toward
women. Evidence points to a correlation between
alcohol and violent acts between family members.
In one British study, 44 of 100 cases of wife
abuse occurred when the husband was drunk.
Gayford, "Wife Battering: A Preliminary
Survey of 100 Cases," British Medical
Journal 1:194-197 (1975). Gelles, in The Violent
Home: A Study of Physical Aggression between
Husbands and Wives (1979), found that in 44
families where violence had occurred, drinking
accompanied the violence in 21 of the cases. He
also posited that alcohol and family violence are
more closely related than alcohol and other types
of violence.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - 97 N.J. 178, *194; 478 A.2d 364,
**371
-
The cyclical
nature of battering behavior helps explain why
more women simply do not leave their abusers. The
loving behavior demonstrated by the batterer
during [**372] phase three reinforces whatever
hopes these women might have for their mate's
reform and keeps them bound to the relationship.
R. Langley & R. Levy, Wife Beating: The
Silent Crisis 112-14 (1977).
Some women may
even perceive the battering cycle as normal,
especially if they grew up in a violent
household. Battered Women, A Psychosociological
Study of Domestic Violence 60 (M. Roy ed. 1977);
D. Martin, Battered Wives, 60 (1981). Or they may
simply not wish to acknowledge the reality of
their situation. T. Davidson, Conjugal Crime, at
50 (1978) ("The middle-class battered wife's
response to her situation tends to be withdrawal,
silence and denial . . .").
Other women,
however, become so demoralized and degraded by
the fact that they cannot predict or control the
violence that they sink into a state of
psychological paralysis and become unable to take
any action at all to improve or alter the
situation. There is a tendency in battered women
to believe in the omnipotence [*195] or strength
of their battering husbands and thus to feel that
any attempt to resist them is hopeless. L.
Walker, supra, at 75.
97 N.J. 178,
*195; 478 A.2d 364, **372
In addition to
these psychological impacts, external social and
economic factors often make it difficult for some
women to extricate themselves from battering
relationships. A woman without independent
financial resources who wishes to leave her
husband often finds it difficult to do so because
of a lack of material and social resources.
Even with the
progress of the last decade, women typically make
less money and hold less prestigious jobs than
men, and are more responsible for child care.
Thus, in a violent confrontation where the first
reaction might be to flee, women realize soon
that there may be no place to go. Moreover, the
stigma that attaches to a woman who leaves the
family unit without her children undoubtedly acts
as a further deterrent to moving out.
In addition,
battered women, when they want to leave the
relationship, are typically unwilling to reach
out and confide in their friends, family, or the
police, either out of shame and humiliation, fear
of reprisal by their husband, or the feeling they
will not be believed.
Dr. Walker and
other commentators have identified several common
personality traits of the battered woman: low
self-esteem, traditional beliefs about the home,
the family, and the female sex role, tremendous
feelings of guilt that their marriages are
failing, and the tendency to accept
responsibility for the 97 N.J. 178, *195; 478
A.2d 364, **372
batterer's
actions. L. Walker, supra, at 35-36.
Finally,
battered women are often hesitant to leave a
battering relationship because, in addition to
their hope of reform on the part of their spouse,
they harbor a deep concern about the possible
response leaving might provoke in their mates.
They literally become trapped by their own fear.
Case histories are replete with instances in
which a battered wife left her husband [*196]
only to have him pursue her and subject her to an
even more brutal attack. D. Martin, supra, at
76-79.
The combination
of all these symptoms -- resulting from sustained
psychological and physical trauma compounded by
aggravating social and economic factors --
constitutes the battered-woman's syndrome. Only
by understanding these unique pressures that
force battered women to remain with their mates,
despite their long-standing and reasonable fear
of severe bodily harm and the isolation that
being a battered woman creates, can a battered
woman's state of mind be accurately and fairly
understood.
The voir dire
testimony of Dr. Veronen, sought to be introduced
by defendant Gladys Kelly, conformed essentially
to this outline of the battered-woman's syndrome.
Dr. Vernonen, after establishing her credentials,
described in general terms the component parts of
the battered-woman's syndrome and its 97 N.J.
178, *196; 478 A.2d 364, **372
effects on a
woman's physical and mental health. The witness
then documented, based on her own considerable
[**373] experience in counseling, treating, and
studying battered women, and her familiarity with
the work of others in the field, the feelings of
anxiety, self-blame, isolation, and, above all,
fear that plagues these women and leaves them
prey to a psychological paralysis that hinders
their ability to break free or seek help.
Dr. Veronen
stated that the problems of battered women are
aggravated by a lack of understanding among the
general public concerning both the prevalence of
violence against women and the nature of
battering relationships. She cited several myths
concerning battered women that enjoy popular
acceptance -- primarily that such women are
masochistic and enjoy the abuse they receive and
that they are free to leave their husbands but
choose not to.
Dr. Veronen
described the various psychological tests and
examinations she had performed in connection with
her independent research. These tests and their
methodology, including their interpretation, are,
according to Dr. Veronen, widely [*197] accepted
by clinical psychologists. Applying this
methodology to defendant (who was subjected to
all of the tests, including a five-hour
interview), Dr. Veronen concluded that defendant
was a battered woman and subject to the
battered-woman's syndrome.
97 N.J. 178,
*197; 478 A.2d 364, **373
In addition, Dr.
Veronen was prepared to testify as to how, as a
battered woman, Gladys Kelly perceived her
situation at the time of the stabbing, and why,
in her opinion, defendant did not leave her
husband despite the constant beatings she
endured.
IV.
Whether expert
testimony on the battered-woman's syndrome should
be admitted in this case depends on whether it is
relevant to defendant's claim of self-defense,
and, in any event, on whether the proffer meets
the standards for admission of expert testimony
in this state. We examine first the law of
self-defense and consider whether the expert
testimony is relevant.
The present
rules governing the use of force in self-defense
are set out in the justification section of the
Code of Criminal Justice. The use of force
against another in self-defense is justifiable
"when the actor reasonably believes that
such force is immediately necessary for the
purpose of protecting himself against the use of
unlawful force by such other person on the
present occasion." N.J.S.A. 2C:3-4(a).
Further limitations exist when deadly force is
used in self-defense. The use of such deadly
force is not justifiable unless the actor
reasonably believes that such force is necessary
to protect himself against death or serious
bodily harm . . . . [N.J.S.A. 2C:3-4(b)(2)]. 97
N.J. 178, *197; 478 A.2d 364, **373
These principles
codify decades of prior case law development of
the elements of self-defense. n6 We focus here on
the critical [*198] requirement that the actor
reasonably believe deadly force to be necessary
to prevent death or serious bodily harm, for the
proffer of expert testimony was argued to be
relevant on this point.
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n6 Prior to the
enactment of the Code, former N.J.S.A. 2A:113-6
provided a statutory basis for self-defense
claims specifically and justification defenses
generally. However, as noted by the New Jersey
Criminal Law Revision Commission, the law
concerning justification was that found in the
cases, since the literal wording of 2A:113-6 was
not followed. Final Report of the New Jersey
Criminal Law Revision Commission Vol. II:
Commentary, at 78-79 (1971).
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
Self-defense
exonerates a person who kills in the reasonable
belief that such action was necessary to prevent
his or her death or serious injury, even though
this belief was later proven mistaken.
"Detached reflection cannot be demanded in
the presence of an uplifted knife," Justice
Holmes aptly said, <=6> Brown v. United
States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65
L.Ed. 961, 963 97 N.J. 178, *198; 478 A.2d 364,
**373
(1921); and the
law accordingly requires only a reasonable, not
necessarily a correct, judgment. See <=7>
State v. Hipplewith, 33 N.J. 300, 316-17 (1960);
<=8> State v. Mount, 73 N.J.L. 582, 583 (E.
& A. 1905); <=9> State [**374] v.
Lionetti, 93 N.J.L. 24 (Sup.Ct.1919).
While it is not
imperative that actual necessity exist, a valid
plea of self-defense will not lie absent an
actual (that is, honest) belief on the part of
the defendant in the necessity of using force.
While no case in New Jersey has addressed the
point directly, the privilege of self-defense
does not exist where the defendant's action is
not prompted by a belief in its necessity:
"He has no defense when he intentionally
kills his enemy in complete ignorance of the fact
that his enemy, when killed, was about to launch
a deadly attack upon him." W. LaFave &
A. Scott, Criminal Law @ 53, at 394 (1972). n7
The intent of the [*199] drafters of the present
Code was that a necessity to act should not give
rise to a meritorious plea of self-defense where
the defendant was unaware of that necessity.
Final Report of the New Jersey Criminal Law
Revision Commission, Vol. II: Commentary, at 83
(1971) [hereinafter cited as Commission Report].
Ultimately, of course, it is for the jury to
determine if the defendant actually did believe
in the necessity of acting with deadly force to
prevent an imminent, grave attack. See, e.g.,
<=10> State v. Fair, 45 N.J. 77, 93 (1965).
97 N.J. 178,
*199; 478 A.2d 364, **374
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- - - - - - -
n7 See also
Restatement of Torts 2d @ 63 (1965) at 101. Under
principles of self-defense as a justification for
the torts of assault and battery -- which closely
parallel criminal self-defense principles -- no
privilege of self-defense exists for one acting
in ignorance of another's intent to inflict harm
on him. Cf. Perkins, "Self-Defense
Re-examined," 1 U.C.L.A.L.Rev. 133, 134
(1954).
- - - - - - - -
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- - - - - - -
Honesty alone,
however, does not suffice. A defendant claiming
the privilege of self-defense must also establish
that her belief in the necessity to use force was
reasonable. See, e.g., <=12> State v.
Mellillo, 77 N.J.L. 505 (E. & A. 1908);
<=13> State v. Mark Len, 108 N.J.L. 439,
440 (Sup.Ct.1932). As originally proposed, the
new Code of Criminal Justice would have
eliminated the reasonableness requirement,
allowing self-defense whenever the defendant
honestly believed in the imminent need to act.
See Commission Report, supra, Vol. I, at 26-27
(proposed Section 2C:3-4), and Vol. II:
Commentary, at 82-83. This proposed change in the
law was not accepted by the Legislature. N.J.S.A.
2C:3-4 as finally enacted retains the requirement
that the defendant's belief be reasonable. n8 97
N.J. 178, *199; 478 A.2d 364, **374
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n8 The rejected
form of @ 2C:3-4 was patterned after @ 3.04 of
the Model Penal Code. The purpose of the proposed
Code and M.P.C. provisions was to prevent one who
killed in the honest but mistaken and
unreasonable belief in the necessity of the
action from being convicted of a crime like
murder, which is premised on an act motivated by
unlawful purpose. See Model Penal Code @ 3.04
commentary at 14-15 (Tent. Draft No. 8 1958);
Commission Report, supra, Vol. II: Commentary, at
83-84.
- - - - - - - -
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- - - - - - -
Thus, even when
the defendant's belief in the need to kill in
self-defense is conceded to be sincere, if it is
found to have been unreasonable under the
circumstances, such a belief cannot be held to
constitute complete justification for a homicide.
n9 As [*200] with the determination of the
existence of the defendant's belief, the question
of the reasonableness of this belief "is to
be determined by the jury, not the defendant, in
light of the circumstances existing at the time
of the homicide." <=14> State v.
Hipplewith, supra, 33 N.J. at 316; see
<=15> State v. Bess, supra, 53 N.J. at 16;
<=16> State v. Fair, supra, 45 N.J. at 93;
<=17> State v. Jayson, 94 N.J.L. 467, 471
(E. & 97 N.J. 178, *200; 478 A.2d 364, **374
A. 1920). It is
perhaps worth emphasizing here that for defendant
to prevail, the jury need not find beyond a
reasonable doubt that the defendant's belief was
honest and reasonable. [**375] Rather, if any
evidence raising the issue of self-defense is
adduced, either in the State's or the defendant's
case, then the jury must be instructed that the
State is required to prove beyond a reasonable
doubt that the self-defense claim does not accord
with the facts; acquittal is required if there
remains a reasonable doubt whether the defendant
acted in self-defense. <=18> State v.
Abbott, 36 N.J. 63, 72 (1961). See generally
<=19> State v. Chiarello, 69 N.J. Super.
479 (App.Div.1961).
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n9 In
<=20> State v. Powell, 84 N.J. 305 (1980),
we explicitly recognized that before enactment of
the Code the doctrine of imperfect self-defense
could reduce murder to manslaughter when the
defendant honestly but unreasonably perceived
himself in such danger as to require the use of
deadly force. However, we expressed no opinion on
whether imperfect self-defense was available
under the new Code for the purpose of reducing
murder to manslaughter. The resolution of that
issue is immaterial to the case at bar.
- - - - - - - -
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- - - - - - -
97 N.J. 178,
*200; 478 A.2d 364, **375
With the
foregoing standards in mind, we turn to an
examination of the relevance of the proffered
expert testimony to Gladys Kelly's claim of
self-defense.
V.
Gladys Kelly
claims that she stabbed her husband in
self-defense, believing he was about to kill her.
The gist of the State's case was that Gladys
Kelly was the aggressor, that she consciously
intended to kill her husband, and that she
certainly was not acting in self-defense.
The credibility
of Gladys Kelly is a critical issue in this case.
If the jury does not believe Gladys Kelly's
account, it [*201] cannot find she acted in
self-defense. The expert testimony offered was
directly relevant to one of the critical elements
of that account, namely, what Gladys Kelly
believed at the time of the stabbing, and was
thus material to establish the honesty of her
stated belief that she was in imminent danger of
death. n10
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n10 The factual
contentions of the parties eliminated any issue
concerning the duty to retreat. If the State's
version is accepted, defendant is the 97 N.J.
178, *201; 478 A.2d 364, **375
aggressor; if
defendant's version is accepted, the possibility
of retreat is excluded by virtue of the nature of
the attack that defendant claims took place. We
do not understand that the State claims defendant
breached that duty under any version of the
facts. If, however, the duty becomes an issue on
retrial, the trial court will have to determine
the relevancy of the battered-woman's syndrome to
that issue. Without passing on that question, it
appears to us to be a different question from
whether the syndrome is relevant to defendant's
failure to leave her husband in the past.
- - - - - - - -
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- - - - - - -
The State argues
that there is no need to bolster defendant's
credibility with expert testimony concerning the
battering because the State did not attempt to
undermine defendant's testimony concerning her
prior mistreatment at the hands of her husband.
The State's claim is simply untrue. In her
summation, the prosecutor suggested that had
Ernest Kelly lived, he might have told a
different story from the one Gladys told. (In its
brief, the State argues that evidence in the case
suggests that Gladys Kelly's claims of abuse
could have been contradicted by her husband.)
This is obviously a direct attempt to undermine
defendant's testimony about her prior
mistreatment.
97 N.J. 178,
*201; 478 A.2d 364, **375
Moreover,
defendant's credibility was also attacked in
other ways. Gladys Kelly's prior conviction for
conspiracy to commit robbery was admitted into
evidence for the express purpose of impeachment,
even though this conviction had occurred nine
years before the stabbing. Other questions, about
Gladys Kelly's use of alcohol and drugs and about
her premarital sexual conduct, were clearly
efforts to impeach credibility.
As can be seen
from our discussion of the expert testimony, Dr.
Veronen would have bolstered Gladys Kelly's
credibility. [*202] Specifically, by showing that
her experience, although concededly difficult to
comprehend, was common to that of other women who
had been in similarly abusive relationships, Dr.
Veronen would have helped the jury understand
that Gladys Kelly could have honestly feared that
she would suffer serious bodily harm from her
husband's attacks, yet still remain with him.
This, in turn, would support Ms. Kelly's
testimony about her state of mind (that is, that
she honestly feared serious bodily harm) at the
time of the stabbing.
On the facts in
this case, we find that the expert testimony was
relevant to Gladys Kelly's state of mind, namely,
it was admissible to show she honestly believed
she was in imminent danger of [**376] death.
<=21> Ibn-Tamas v. United States, 407 A.2d
626 (D.C.1979) (on remand, trial court excluded
expert testimony on battered-woman's syndrome;
the Court of Appeals affirmed the 97 N.J. 178,
*202; 478 A.2d 364, **376
exclusion of the
testimony, holding that the trial court was not
compelled to admit the evidence; <=22> 455
A.2d 893 (D.C.1983)); <=23> Hawthorne v.
State, 408 So.2d 801 (Fla.Dist.Ct.App.1982),
petition for review denied, <=24> 415 So.2d
1361 (Fla.1982); <=25> Smith v. State, 247
Ga. 612, 277 S.E.2d 678 (1981); <=26> State
v. Anaya, 438 A.2d 892 (Me.1981); <=27>
State v. Allery, 101 Wash.2d 591, 682 P.2d 312
(Wash.Sup.Ct.1984); see also <=28> People
v. Minnis, 118 Ill.App.3d 345, 74 Ill.Dec. 179,
455 N.E.2d 209 (1983) (expert testimony on
battered-woman's syndrome admissible to explain
reasons why defendant dismembered body of
victim/husband where prosecution introduced fact
of dismemberment as substantive evidence of
guilt). But see <=29> State v. Thomas, 66
Ohio St.2d 518, 423 N.E.2d 137 (1981). n11
Moreover, we [*203] find that because this
testimony was central to the defendant's claim of
self-defense, its exclusion, if otherwise
admissible, cannot be held to be harmless error.
n12
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n11 The State
may not bar the introduction of expert testimony
about the battered-woman's syndrome by
stipulating that the defendant's fear of serious
bodily harm was honestly held. In <=30>
State v. Laws, 50 N.J. 159 (1967), we rejected
the suggestion that the State should be compelled
to stipulate to -- and not introduce evidence on
-- those facts that the defendant did not 97 N.J.
178, *203; 478 A.2d 364, **376
dispute. We held
that subject to the trial court's overriding
control of the proceedings, the State
"should have the right to make a full
showing before the jury whenever it considers
such course necessary for the proper presentation
of its case." <=31> Id. at 184.
Similar considerations compel the same result
here, should the defendant seek to introduce
testimony on a fact -- the honesty of defendant's
fear of serious bodily harm -- that the State
does not contest. This holding protects the
defendant's due process rights by allowing her to
offer testimony to establish a defense. See
<=32> Webb v. Texas, 409 U.S. 95, 98, 93
S.Ct. 351, 353, 34 L.Ed.2d 330, 333 (1972)
(citing <=33> Washington v. Texas, 388 U.S.
14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019
(1967)). Without the introduction of expert
testimony to dispel common misconceptions about
battered women, a jury might well question the
stipulation of honesty.
n12 The State
contends that even if the expert testimony is
held admissible, its exclusion should be
considered harmless error because of defendant's
conviction for reckless manslaughter. The State's
position is that under N.J.S.A. 2C:3-9(b) as it
existed at the time of Gladys Kelly's conviction,
self-defense was not available as a defense for
any offense for which recklessness or negligence
suffices to establish culpability, including,
presumably, offenses where the defendant was
reckless or negligent in believing the use of
force to be necessary, or in acquiring or failing
to acquire any knowledge that is material to the
justifiability of the use of force. The 97 N.J.
178, *203; 478 A.2d 364, **376
argument,
therefore, is that the expert testimony could not
have saved defendant from the reckless
manslaughter verdict.
N.J.S.A.
2C:3-9(b) was never intended to serve the
function ascribed to it by the State. In fact,
inclusion of the provision in the Code appears to
have been an error, which has since been
corrected by its repeal. See L.1981, c. 290. The
reasons for the inclusion and repeal of this
provision are concisely stated in the legislative
history of the repealer:
As originally
drafted, justification defenses (i.e.
self-defense) under the code were available to a
defendant if his belief in the necessity of the
use of force was honestly held. In conjunction
with this provision, the code also provided in
2C:3-9b that if the defendant was reckless or
negligent in forming that belief, he could be
convicted of a crime for which recklessness or
negligence was the required mental element. As
enacted, however, the code requires not only that
a defendant's belief be honestly held but also
that his belief in the necessity to use force be
reasonable. This requirement that a defendant's
belief be both honest and reasonable vis a vis a
justification defense obviates the necessity for
the provision in 2C:3-9b that the reckless or
negligent use of force can establish criminal
liability. Therefore, the amendment in section 7
would delete this provision. [Senate Judiciary
Committee, Statement to Committee Substitute for
S.2537 at 2 (1982)]. 97 N.J. 178, *203; 478 A.2d
364, **376
In other words,
when the original draft of the Code provided that
an honest belief in the need for deadly force
sufficed to establish self-defense, the Code had
to deal with the situation in which that belief,
though honest, had been recklessly formed. The
subsequently repealed section, N.J.S.A.
2C:3-9(b), performed that function by providing
that such an honest belief, recklessly formed,
was no justification for offenses when
culpability was based on that very same
recklessness. The Code as passed, however,
defined self-defense as requiring a reasonable
belief, thereby rendering section 9(b)
unnecessary since, under that definition,
self-defense could not be established as a
justification for any offense if the actor's
belief in the need for force, though honest, was
recklessly formed, i.e., was unreasonable. The
repealer simply clarified the legislative intent
that existed when the Code first became law,
which was that self-defense based on a reasonable
belief in the need for deadly force would
constitute justification -- a complete defense --
to the charge of reckless manslaughter. If the
jury here found defendant's belief was both
honest and reasonable, it would be required to
acquit her of all charges.
- - - - - - - -
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- - - - - - -
[*204] [**377]
We also find the expert testimony relevant to the
reasonableness of defendant's belief that she was
in imminent danger of death 97 N.J. 178, *204;
478 A.2d 364, **377
or serious
injury. We do not mean that the expert's
testimony could be used to show that it was
understandable that a battered woman might
believe that her life was in danger when indeed
it was not and when a reasonable person would not
have so believed, for admission for that purpose
would clearly violate the rule set forth in
<=34> State v. Bess, supra, 53 N.J. 10.
Expert testimony in that direction would be
relevant solely to the honesty of defendant's
belief, not its objective reasonableness. Rather,
our conclusion is that the expert's testimony, if
accepted by the jury, would have aided it in
determining whether, under the circumstances, a
reasonable person would have believed there was
imminent danger to her life.
At the heart of
the claim of self-defense was defendant's story
that she had been repeatedly subjected to
"beatings" over the course of her
marriage. While defendant's testimony was
somewhat lacking in detail, a juror could infer
from the use of the word "beatings," as
well as the detail given concerning some of these
events (the choking, the biting, the use of
fists), [*205] that these physical assaults posed
a risk of serious injury or death. When that
regular pattern of serious physical abuse is
combined with defendant's claim that the decedent
sometimes threatened to kill her, defendant's
statement that on this occasion she thought she
might be killed when she saw Mr. Kelly running
toward her could be found to reflect a reasonable
fear; that is, it could so be found if the jury
believed Gladys Kelly's story of the prior
beatings, if it 97 N.J. 178, *205; 478 A.2d 364,
**377
believed her
story of the prior threats, and, of course, if it
believed her story of the events of that
particular day.
The crucial
issue of fact on which this expert's testimony
would bear is why, given such allegedly severe
and constant beatings, combined with threats to
kill, defendant had not long ago left decedent.
Whether raised by the prosecutor as a factual
issue or not, our own common knowledge tells us
that most of us, including the ordinary juror,
would ask himself or herself just such a
question. And our knowledge is bolstered by the
experts' knowledge, for the experts point out
that one of the common myths, apparently believed
by most people, is that battered wives are free
to leave. To some, this misconception is followed
by the observation that the battered wife is
masochistic, proven by her refusal to leave
despite the severe beatings; to others, however,
the fact that the battered wife stays on
unquestionably suggests that the
"beatings" could not have been too bad
for if they had been, she certainly would have
left. The expert could clear up these myths, by
explaining that one of the common characteristics
of a battered wife is her inability to leave
despite such constant beatings; her "learned
helplessness"; her lack of anywhere to go;
her feeling that if she tried to leave, she would
be subjected to even more merciless treatment;
her belief in the omnipotence of her battering
husband; and sometimes her hope that her husband
will change his ways.
97 N.J. 178,
*205; 478 A.2d 364, **377
Unfortunately,
in this case the State reinforced the myths about
battered women. On cross-examination, when
discussing an occasion when Mr. Kelly temporarily
moved out of the [*206] house, the State
repeatedly asked Ms. Kelly: "You wanted him
back, didn't you?" The implication was
clear: domestic life could not have been too bad
if she wanted him back. In its closing argument,
the State trivialized the severity of the
beatings, saying: [**378] I'm not going to say
they happened or they didn't happen, but life
isn't pretty. Life is not a bowl of cherries. We
each and every person who takes a breath has
problems. Defense counsel says bruised and
battered. Is there any one of us who hasn't been
battered by life in some manner or means?
Even had the
State not taken this approach, however, expert
testimony would be essential to rebut the general
misconceptions regarding battered women.
The difficulty
with the expert's testimony is that it sounds as
if an expert is giving knowledge to a jury about
something the jury knows as well as anyone else,
namely, the reasonableness of a person's fear of
imminent serious danger. That is not at all,
however, what this testimony is directly aimed
at. It is aimed at an area where the purported
common knowledge of the jury may be very much
mistaken, an area where jurors' logic, drawn from
their own experience, may lead to a wholly
incorrect conclusion, an area where expert
knowledge would 97 N.J. 178, *206; 478 A.2d 364,
**378
enable the
jurors to disregard their prior conclusions as
being common myths rather than common knowledge.
After hearing the expert, instead of saying
Gladys Kelly could not have been beaten up so
badly for if she had, she certainly would have
left, the jury could conclude that her failure to
leave was very much part and parcel of her life
as a battered wife. The jury could conclude that
instead of casting doubt on the accuracy of her
testimony about the severity and frequency of
prior beatings, her failure to leave actually
reinforced her credibility.
Since a retrial
is necessary, we think it advisable to indicate
the limit of the expert's testimony on this issue
of reasonableness. It would not be proper for the
expert to express the opinion that defendant's
belief on that day was reasonable, not because
this is the ultimate issue, but because the area
of expert knowledge relates, in this regard, to
the reasons for [*207] defendant's failure to
leave her husband. Either the jury accepts or
rejects that explanation and, based on that,
credits defendant's stories about the beatings
she suffered. No expert is needed, however, once
the jury has made up its mind on those issues, to
tell the jury the logical conclusion, namely,
that a person who has in fact been severely and
continuously beaten might very well reasonably
fear that the imminent beating she was about to
suffer could be either life-threatening or pose a
risk of serious injury. What the expert could
state was that defendant had the battered-woman's
syndrome, and could explain 97 N.J. 178, *207;
478 A.2d 364, **378
that syndrome in
detail, relating its characteristics to
defendant, but only to enable the jury better to
determine the honesty and reasonableness of
defendant's belief. Depending on its content, the
expert's testimony might also enable the jury to
find that the battered wife, because of the prior
beatings, numerous beatings, as often as once a
week, for seven years, from the day they were
married to the day he died, is particularly able
to predict accurately the likely extent of
violence in any attack on her. That conclusion
could significantly affect the jury's evaluation
of the reasonableness of defendant's fear for her
life. n13
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n13 At least two
other courts agree that expert testimony about
the battered-woman's syndrome is relevant to show
the reasonableness as well as the honesty of
defendant's fear of serious bodily harm.
<=35> Ibn-Tamas v. United States, 407 A.2d
626, 634-35 (D.C.1979) (expert testimony
"would have enhanced Mrs. Ibn-Tamas' general
credibility in responding to cross-examination
designed to show that the testimony about the
relationship with her husband was
implausible," and also "would have
supplied an interpretation of the facts which
differed from the ordinary lay perception");
<=36> Hawthorne v. State, 408 So.2d 801,
806-07 (Fla.Dist.Ct.App.1982) (expert testimony
would "aid the jury in interpreting the
surrounding circumstances as they affected the 97
N.J. 178, *207; 478 A.2d 364, **378
reasonableness
of [defendant's] belief," because "a
jury would not understand why [defendant] would
remain [with her husband]"); <=37>
State v. Allery, 101 Wash.2d 591, 682 P.2d 312,
316 (Wash.Sup.Ct.1984) (court approved use of
expert testimony "[t]o effectively present
the situation as perceived by the defendant, and
the reasonableness of her fear . . . to enable
the jury to overcome stereotyped impressions
about women who remain in abusive
relationships"). But see <=38>
Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288
(1974) (psychiatric testimony held to be of no
help in determining whether a fear of serious
bodily harm was reasonable).
Defendant's
counsel at oral argument made it clear that
defendant's basic contention was that her belief
in the immediate need to use deadly force was
both honest and reasonable; and that the evidence
concerning the battered-woman's syndrome was
being offered solely on that issue. We therefore
are not faced with any claim that a battered
woman's honest belief in the need to use deadly
force, even if objectively unreasonable,
constitutes justification so long as its
unreasonableness results from the psychological
impact of the beatings. The effect of cases like
<=39> State v. Sikora, 44 N.J. (1965)
(opinion of psychiatrist that acts of defendant,
admittedly sane, were predetermined by
interaction of events and his abnormal character
held inadmissible on issue of premeditation), and
State v. Bess, 53 N.J. 10 (1968) (reasonableness
of belief in need for deadly force not measured
by what would 97 N.J. 178, *207; 478 A.2d 364,
**378
appear
"reasonable" to abnormal defendant) is
not before us. Nor is there any claim that the
battering provocation might have some legal
effect beyond the potential reduction of
defendant's culpability to manslaughter, or
something other than an "immediate"
need for deadly force will suffice. See
<=40> State v. Felton, 110 Wis.2d 485, 329
N.W.2d 161 (1983), (battered wife stabs sleeping
husband).
- - - - - - - -
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- - - - - - -
[*208] [**379]
VI.
Having
determined that testimony about the
battered-woman's syndrome is relevant, we now
consider whether Dr. Veronen's testimony
satisfies the limitations placed on expert
testimony by Evidence Rule 56(2) and by
applicable case law. See <=41> State v.
Cavallo, 88 N.J. 508, 516 (1982). Evidence Rule
56(2) provides that an expert may testify
"as to matters requiring scientific,
technical or other specialized knowledge if such
testimony will assist the trier of fact to
understand the evidence or determine a fact in
issue." In effect, this Rule imposes three
basic requirements for the admission of expert
testimony: (1) the intended testimony must
concern a subject matter that is beyond the ken
of the average juror; (2) the field testified to
must be at a state of the art such that an
expert's testimony could be sufficiently 97 N.J.
178, *208; 478 A.2d 364, **379
reliable; and
(3) the witness must have sufficient expertise to
offer the intended testimony. See N.J. Rules of
Evidence (Anno.1984), Comment 5 to Evid.R. 56.
n14
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n14 Of course,
expert testimony that meets these three criteria
is still subject to other rules of evidence. For
example, the probative value of the testimony
must not be substantially outweighed by the risk
that its admission would necessitate undue
consumption of time or create substantial danger
of undue prejudice or of confusing the issues or
of misleading the jury. Evid. R. 4. The danger of
undue prejudice would be only slightly greater if
expert testimony on the battered-woman's syndrome
is introduced than without it, however, because
the jury, even without it, will certainly hear
about the past beatings from lay witnesses.
- - - - - - - -
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- - - - - - -
[*209] The
primary justification for permitting expert
testimony is that the average juror is relatively
helpless in dealing with a subject that is not a
matter of common knowledge. <=42> Angel v.
Rand Express Lines, Inc., 66 N.J. Super. 77, 85
(App.Div.1961). Thus, the proponent of expert
testimony must 97 N.J. 178, *209; 478 A.2d 364,
**379
demonstrate that
testimony would "enhance the knowledge and
understanding of lay jurors with respect to other
testimony of a special nature normally outside of
the usual lay sphere." <=43> State v.
Griffin, 120 N.J. Super. 13, 20 (App.Div.1972).
As previously
discussed, a battering relationship embodies
psychological and societal features that are not
well understood by lay observers. Indeed, these
features are subject to a large group of myths
and stereotypes. It is clear that this subject is
beyond the ken of the average juror and thus is
suitable for explanation through expert
testimony. n15
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n15 The
following courts agree that the battered-woman's
syndrome is beyond the understanding of the
average person: <=44> Ibn Tamas v. United
States, supra, 407 A.2d 626; <=45> Smith v.
State, supra, 247 Ga. 612, 277 S.E.2d 678;
<=46> Hawthorne v. State, supra, 408 So.2d
801; <=47> State v. Anaya, supra, 438 A.2d
892. But see <=48> State v. Thomas, supra,
66 Ohio St.2d 518, 423 N.E.2d 137.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
97 N.J. 178,
*209; 478 A.2d 364, **379
The second
requirement that must be met before expert
testimony is permitted is a showing that the
proposed expert's testimony would be reliable.
The rationale for this requirement is that expert
testimony [**380] seeks to assist the trier of
fact. An expert opinion that is not reliable is
of no assistance to anyone.
To meet the
requirement that the expert's testimony be
sufficiently reliable, defense counsel must show
that the testimony satisfies New Jersey's
standard of acceptability for scientific [*210]
evidence. <=49> State v. Cavallo, supra, 88
N.J. at 516-17 (citing <=50> State v. Hurd,
86 N.J. 525, 536 (1981)). The technique or mode
of analysis used by the expert must have a
sufficient scientific basis to produce uniform
and reasonably reliable results so as to
contribute materially to the ascertainment of the
truth. <=51> Id. 88 N.J. at 517 (citing
<=52> State v. Cary, 49 N.J. 343, 352
(1967)); <=53> State v. Hurd, supra, 86
N.J. at 536.
In a relatively
new field of research, such as that of the
battered-woman's syndrome, there are three ways a
proponent of scientific evidence can prove its
general acceptance and thereby its reliability:
(1) by expert testimony as to the general
acceptance, among those in the profession, of the
premises on which the proffered expert witness
based his or her analysis; (2) by authoritative
scientific and legal writings indicating that the
scientific community accepts 97 N.J. 178, *210;
478 A.2d 364, **380
the premises
underlying the proffered testimony; and (3) by
judicial opinions that indicate the expert's
premises have gained general acceptance.
<=54> State v. Cavallo, 88 N.J. at 521.
Applying those methods to the case at bar, we
note that judicial opinions thus far have been
split concerning the scientific acceptability of
the syndrome and the methodology used by the
researchers in this area. n16 On the other hand,
Dr. Veronen, the proffered expert, testified that
the battered-woman's syndrome is acknowledged and
accepted by practitioners and professors in the
fields of psychology and psychiatry. Dr. Veronen
also brought to the court's attention the
findings of several researchers who have
published reports confirming the presence of the
battered-woman's syndrome. She further noted that
the battered-woman's syndrome has [*211] been
discussed at several symposia since 1977,
sponsored by such organizations as the
Association for the Advancement of Behavior
Therapy and the American Sociological
Association. n17 Briefs submitted to this Court
indicate that there are at least five books and
almost seventy scientific articles and papers
about the battered-woman's syndrome.
- - - - - - - -
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- - - - - - -
n16 Compare
<=55> State v. Anaya, supra, 438 A.2d 892,
and <=56> Smith v. State, supra, 247 Ga.
612, 277 S.E.2d 678 (both cases accepting expert
testimony without reservation), with <=57>
Hawthorne v. State, supra, 408 So.2d 801, 97 N.J.
178, *211; 478 A.2d 364, **380
and <=58>
Ibn-Tamas v. United States, supra, 407 A.2d 626
(both cases remanding to trial court for further
consideration of scientific acceptability), and
with <=59> Buhrle v. State, 627 P.2d 1374
(Wyo.1981), and <=60> State v. Thomas,
supra, 66 Ohio St.2d 518, 423 N.E.2d 137 (both
cases holding that subject was not sufficiently
established as a matter of scientific expertise).
n17 Under
appropriate circumstances, speeches, addresses,
and other similar sources may be used to
demonstrate the acceptance of a premise by the
scientific community. See Giannelli, "The
Admissibility of Novel Scientific Evidence: Frye
v. United States, a Half-Century Later," 80
Colum.L.Rev. 1197, 1217 (1980).
- - - - - - - -
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- - - - - - -
Thus, the record
before us reveals that the battered woman's
syndrome has a sufficient scientific basis to
produce uniform and reasonably reliable results
as required by State v. Cavallo, and Evid.R.
56(2). The numerous books, articles and papers
referred to earlier indicate the presence of a
growing field of study and research about the
battered woman's syndrome and recognition of the
syndrome in the scientific field. However, while
the record before us could require such a ruling,
we refrain from conclusively ruling that Dr.
Veronen's proffered testimony about the
battered-woman's syndrome would satisfy New
Jersey's standard of acceptability for scientific
evidence. This is because 97 N.J. 178, *211; 478
A.2d 364, **380
the State was
not given a full opportunity in the trial court
to question Dr. Veronen's methodology in studying
battered women or her implicit assertion [**381]
that the battered-woman's syndrome has been
accepted by the relevant scientific community.
Finally, before
expert testimony may be presented, there must be
a showing that the proffered expert witness has
sufficient expertise to offer the intended
testimony. <=62> State v. Cavallo, supra,
88 N.J. at 516. In this case, it appears that Dr.
Veronen is qualified to testify as an expert. She
has a Ph.D. in clinical psychology, as well as an
M.A. from North Texas State. She is a member of
four professional associations. As of 1980, when
she was offered as a witness at Ms. Kelly's
trial, Dr. [*212] Veronen had been an assistant
professor at the medical school at the University
of South Carolina for three years. Twenty percent
of her time at the University was spent teaching,
some of it on topics related to the
battered-woman's syndrome, and 80% of her time
was spent conducting research, most of it on the
psychological reaction of women who are victims
of violent assaults. She had spent two years
studying the battered-woman's syndrome, with the
goal of changing the patterns of fear and anxiety
of battered women. Dr. Veronen is a clinical
psychologist, licensed to practice in two states,
and in that capacity had, by 1980, treated
approximately thirty battered women and seen
seventy others. Because these thirty women have
several important characteristics in common with
Ms. Kelly (the thirty women 97 N.J. 178, *212;
478 A.2d 364, **381
had all been in
battering relationships for more than two years,
were beaten more than six times, and were within
the same age group as Ms. Kelly), Dr. Veronen is
familiar with battered women who share Ms.
Kelly's background. n18
- - - - - - - -
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- - - - - - -
n18 In addition
to her general knowledge of the battered-woman's
syndrome, Dr. Veronen is quite familiar with the
facts in this case. Dr. Veronen interviewed Ms.
Kelly for approximately five hours, during which
time the two spoke about Ms. Kelly's background,
Ms. Kelly's first meeting with Mr. Kelly, Ms.
Kelly's relationship with her children and Mr.
Kelly, the history of the physical abuse she
suffered, and her stabbing of Mr. Kelly. Dr.
Veronen also reviewed several psychological tests
that were administered to Ms. Kelly, and from
those concluded that Ms. Kelly was a battered
woman. In addition, Dr. Veronen reviewed
statements of eyewitnesses to the stabbing,
police reports, and Ms. Kelly's hospital reports
following the stabbing.
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- - - - - - -
We have
concluded that the appropriate disposal of this
appeal is to reverse and remand for a new trial.
On the record before us, although the trial court
did not rule on the matter, it appears that Dr.
Veronen qualified as an 97 N.J. 178, *212; 478
A.2d 364, **381
expert, and that
the degree of reliability of the conclusions in
this field of expertise was sufficient to allow
their admission. Alternatively we could retain
jurisdiction and remand, solely for the purpose
of allowing the prosecutor to continue
cross-examination of Dr. [*213] Veronen as well
as to introduce such contrary testimony as the
prosecutor sees fit. The transcript discloses
that the prosecutor had concluded her
cross-examination on Dr. Veronen's qualifications
but had never been given the opportunity fully to
cross-examine the expert on the reliability of
this developing field of scientific knowledge.
The possibility of such further cross-examination
was foreclosed by the trial court when it ruled
evidence of the syndrome was inadmissible because
irrelevant. Furthermore, as noted above, the
trial court never actually ruled whether Dr.
Veronen qualified as an expert, finding this
unnecessary because of his holding that the
testimony would not be admissible under
<=63> State v. Bess, supra, 53 N.J. 10,
even if she was an expert. n19
- - - - - - - -
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- - - - - - -
n19 It is not
contended by anyone that the battered woman's
syndrome has been so well established in the
scientific community and is so well known by the
public as to authorize the Court to take judicial
notice of it. Therefore, unlike some expert
evidence (radar, for example, <=64> State
v. Dantonio, 18 N.J. 570 (1955)) where all that
is required is to show that the accepted body 97
N.J. 178, *213; 478 A.2d 364, **381
of scientific
knowledge is being correctly applied, here the
very existence and reliability of such scientific
knowledge has to be established. As a matter of
fact, the literature suggests that while there is
a growing body of research concerning the
syndrome, it is still in a relatively uncertain
stage, there remaining some doubt about its
validity. It is, therefore, necessary for this
Court to be sure that on remand the State has an
adequate opportunity to present such proofs as
might persuade the trial court that the syndrome
has not yet achieved sufficient acceptance in the
scientific community to warrant its
admissibility. While our dissenting colleague is
apparently convinced both from the record and his
own research that as a matter of law the syndrome
has achieved that level of acceptability to
warrant its admission, that procedure, leading to
that conclusion, seems to us manifestly unfair to
the State. Even if we were inclined to agree with
our dissenting colleague on this issue, that
would be beside the point, for what is involved
here is not the correctness of the conclusion
concerning the general acceptability within the
scientific community of the battered-woman's
syndrome, but the fundamental fairness of the
proceedings in the trial court that might lead to
such a conclusion. It is absolutely clear that
the only proceedings concerning the syndrome
before the trial court was the voir dire
testimony of Dr. Veronen, that the State was
permitted cross-examination only as to her
qualifications, and that the court repeatedly
assured the assistant prosecutor that "ample
time" would be given on all issues
concerning the syndrome. Not only was "ample
time" not given, but 97 N.J. 178, *213; 478
A.2d 364, **381
no time was
allowed, for the trial court, apparently
believing that the proposed use of this testimony
had been made clear, decided that the testimony
would be inadmissible as a matter of law even if
the witness were ruled to be an expert and even
if the body of knowledge were ruled to be beyond
the ken of jurors and generally accepted within
the scientific community. The court's ruling that
the expert's testimony was inadmissible was
prefaced by the following statement: "I
fully appreciate you have not had another
opportunity to examine the Witness, Mrs.
Cooper," the remark of the court being
addressed to the assistant prosecutor. Throughout
the transcript there were repeated references by
the court and Mrs. Cooper to the fact that her
role, up to that point, had been confined to
cross-examination only on the witness's
qualifications.
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- - - - - - -
[*214] Our
conclusion, reversing and ordering a new trial,
is based on the apparent [**382] unfairness in
this case of the kind of limited remand that we
ordered in <=65> State v. Sikora, supra, 44
N.J. at 465-66, 474 (Weintraub, C.J.,
concurring). Here a limited remand would be to
the trial court to exercise its discretion, a
very broad discretion, on the issue of the
expert's qualifications and the reliability of
the knowledge proffered. We do not know what
conflicting expert testimony the prosecution
would offer, but the entire scenario of a limited
remand when the defendant has already been
convicted and 97 N.J. 178, *214; 478 A.2d 364,
**382
when the court
whose discretion will largely determine the
outcome of the limited remand has already
excluded the evidence, with prosecution experts
who might not have been called at the original
trial, seems an artificial trial setting, and
significantly less favorable to defendant than
what might have occurred if the trial court had
had the benefit of the views expressed herein at
the time. Obviously there is no way to recreate
the precise situation of the trial, but all
things considered, we think fairness requires a
new trial where all of these matters may be
reconsidered.
VII.
Apart from her
claims concerning the exclusion of the expert
testimony, the defendant raises five additional
issues on appeal. Although our disposition of
this case makes it unnecessary to [*215] consider
these issues, we dispose of them briefly to
assist the trial court in the event they surface
again at the new trial.
A.
During trial,
defendant sought to introduce testimony from
Edith Cannon, defendant's 17-year-old daughter by
another marriage, to the effect that shortly
before the fatal encounter she had told her
mother that Ernest Kelly had been 97 N.J. 178,
*215; 478 A.2d 364, **382
subjecting her
to physical and sexual abuse since age 13. The
defense asserted that this evidence of Glady
Kelly's knowledge of the victim's prior
aggressive behavior demonstrated that her fear of
the decedent was justifiable and that her
subsequent behavior was reasonable. See McCormick
on Evidence @ 249, at 588-89 (E. Cleary ed., 2d
Ed.1972); VI J. Wigmore Evidence @ 1789, at 314
(Chad.Rev.Ed.1972).
The trial court,
however, excluded this evidence in reliance upon
Evidence Rule 4, n20 stating: We will get
involved with trials within trials -- trying
cases of sexual aggression. [**383] That daughter
was not present at the time of the alleged
stabbing by her mother of her stepfather. There
has been no evidence indicating that the safety
of the daughter was threatened on May 24.
- - - - - - - -
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- - - - - - -
n20 Evidence
Rule 4 provides:
The judge may in
his discretion exclude evidence if he finds that
its probative value is substantially outweighed
by the risk that its admission will either (a)
necessitate undue consumption of time or (b)
create substantial 97 N.J. 178, *215; 478 A.2d
364, **383
danger of undue
prejudice or of confusing the issues or of
misleading the jury.
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- - - - - - -
Whether the
probative value of a particular piece of evidence
is outweighed by its potential prejudice is a
decision normally left to the discretion of the
trial court; and this "discretion is a broad
one." <=66> State v. Sands, 76 N.J.
127 (1978); see also Evid.R. 4, Comment 1.
If the only
relevance of this testimony was to reinforce the
proof that defendant feared the decedent for good
reason, its limited added force might very well
be outweighed [*216] by the obvious prejudice
injected into the case in the form of proof that
decedent sexually abused his daughter. The
testimony, however, has further relevance in that
it very strongly supports the conclusion that the
Kelly household was the scene of the batterings
that would produce the battered-woman's syndrome.
As our Legislature noted in its findings included
in the Prevention of Domestic Violence Act,
"there is a positive correlation between
spouse abuse and child abuse . . . ."
N.J.S.A. 2C:25-2. Given the critical importance
of the proof of the battered-woman's syndrome in
this case, we are inclined to believe that, on
balance, such testimony should have been
admitted. We are aware that in the context of an
appellate review, a decision of a trial court
must stand unless it can be shown that the trial
97 N.J. 178, *216; 478 A.2d 364, **383
court palpably
abused its discretion, that is, that its finding
was so wide of the mark that a manifest denial of
justice resulted. <=67> State v. Carter, 91
N.J. 86, 106 (1982); <=68> State v.
Boratto, 80 N.J. 506 (1979); <=69> State v.
Rogers, 19 N.J. 218 (1955); <=70> Hill v.
Newman, 126 N.J. Super. 557 (App.Div.1973),
certif. den., <=71> 64 N.J. 508 (1974);
Evid.R. 4, Comment 2. Nevertheless, absent any
significant new factor bearing on this issue, the
trial court on remand should allow the testimony,
giving such appropriate instruction to the jury
as will minimize the possibility of its
prejudicial impact.
B.
Defense counsel
also contends that the trial court erred in
allowing the State to question defendant about
her earlier conviction. Counsel asserts that the
trial court "lost sight" of the grounds
for admitting defendant's prior record. This
claim is without merit.
Ms. Kelly was
convicted of conspiracy to commit robbery in
1971, and over defense counsel's objection the
trial court ruled that evidence of the earlier
conviction was admissible. During
cross-examination, the prosecution questioned Ms.
Kelly about her earlier conviction: [*217] Q.
Mrs. Kelly, have you ever been convicted of a
crime? A. Yes, once. 97 N.J. 178, *217; 478 A.2d
364, **383
Q. What were you
convicted of? A. Conspiracy to robbery with some
-- two other peoples was involved -- Q. You were
convicted of conspiracy to commit robbery? A.
Yes. Q. When was that? A. Nine years ago, I
think. Q. 1971? A. Something like that. I was
given three years probation . . . .
That was the
only time during the two week trial that evidence
as to Ms. Kelly's prior conviction was elicited
or referred to.
Prior
convictions ordinarily may be used to impeach the
defendant's credibility. <=72> State v.
Sands, 76 N.J. 127, 146 (1978); N.J.S.A.
2A:81-12. The trial court, recognizing that,
instructed the jury as to the limited purpose
[**384] for which it could consider Ms. Kelly's
conspiracy conviction: The only reason you heard
that testimony was not because if you find that
she committed a crime in 1971, therefore she must
have committed this crime with which she is
charged. The only reason you may use that if you
wish to is to affect her believability as a
witness. That is the sole and exclusive purpose
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