Return to CALJIC Part 9-12 – Contents
F 9.35.1 n1 No Limitation On the Defendant’s Right To Use Evidence Of Battered Women Syndrome (EC 1107).
According to CJ 9.35.1, evidence of battered women syndrome is admissible for the “limited purpose of showing” that the defendant’s reactions are not inconsistent with having been previously physically abused. In setting forth this limitation, CALJIC is in error.
Pursuant to EC 1107(a), evidence of battered women syndrome may be used by the defendant to show “the physical, emotional, or mental effects upon the beliefs, perceptions, or behaviors of victims of domestic violence, ….” Thus, CALJIC has created a limitation which is not set forth in EC 1107(a).
Moreover, although the cases are not cited in the CALJIC Use Note or Comment, two appellate courts have held that evidence of battered woman syndrome is admissible to prove the subjective component of a self-defense theory. (People v. Day (92) 2 CA4th 405, 415-16 [2 CR2d 916; People v. Aris (89) 215 CA3d 1178, 1197 [264 CR 167].) In addition, traditional California principles of self-defense compel the conclusion that evidence of battered woman syndrome is also admissible to support the objective prong of a self-defense theory. (See instruction at FORECITE F 9.35.1a for a full explication of this point.)
[Research Note: See FORECITE BIBLIO 9.35.1]
F 9.35.1 n2 Battered Woman/Child Syndrome: Additional Materials Available Free To Current Subscribers (EC 1107).
(1) CACJ Forum article (Vol 17, No 4, p. 18) entitled “Battered Women Syndrome and Other Subtypes of Post-Traumatic Stress Disorder: Strengths and Liabilities in the Courtroom.”
(2) Review of “When a Child Kills: Abused Children Who Kill Their Parents,” by Paul A. Mones, New York: Pocket Books (1991).
(3) Daily Journal Article generally discussing BWS and BCS in light of proposed legislation.
(4) Interview of Paul Mones in CACJ Forum Vol. 19 No. 4.
(5) 9 Journal of Human Rights 111 (1991) recommending at p. 156 that the term “imminence” (e.g., CJ 5.12, line 5) be changed to “impending.”
[See FORECITE BIBLIO 5.12 for additional materials.]
(6) People v. Romero REV GTD (2/11/93, S030160). [See Opinion Bank # O-136.] People v. Romero (94) 8 C4th 728 [35 CR2d 270] modified at 9 C4th 534 was decided on procedural grounds without considering the substantive battered woman syndrome issues.
[See also FORECITE BIBLIO 9.35.1.]
[Research Note: See FORECITE BIBLIO 9.35.1]
F 9.35.1 n3 Battered Woman/Child Syndrome: Jury Must Consider Objective Standard In Light Of Defendant’s Past Experience (EC 1107).
ALERT: Justice Brown’s Concurrence In Humphrey Is Part Of The Holding. In People v. Humphrey (96) 13 C4th 1073 [56 CR2d 142], the leading California authority on battered women and self-defense, the Supreme Court justices issued a total of four opinions. Experience has shown that only the lead opinion written by Justice Chin and joined by four other members of the court, receives much attention. This is a mistake. Justice Brown’s concurrence was joined in full by Chief Justice George and Justice Baxter, and was joined almost in full by Justice Werdegar. (See Justice Werdegar’s concurrence, pp. 1091-92.) Thus, her concurrence is part of the holding in the case, with the exception outlined in Justice Werdegar’s concurrence.
Justice Brown’s decision contains factual and legal analyses, and citations to authorities on domestic violence and self-defense, which cannot be found in the lead opinion. Hence, Justice Brown’s opinion should not be overlooked by attorneys who wish to rely on Humphrey.
Even though self-defense, heat of passion and duress impose an objective standard of reasonableness, that standard must be evaluated in light of the experiences of the individual defendant. (See e.g., People v. Humphrey (96) 13 C4th 1073, 1086 [56 CR2d 142].) “[T]he jury, in determining objective reasonableness, must view the situation from the defendant’s perspective. [Original emphasis.] Here, for example, Dr. Bowker testified that the violence can escalate and that a battered woman can become increasingly sensitive to the abuser’s behavior, testimony relevant to determining whether defendant reasonably believed when she fired the gun that this time the threat to her life was imminent. Indeed, the prosecutor argued that, ‘from an objective, reasonable man’s standard, there was no reason for her to go get that gun. This threat that she says he made was like so many threats before. There was no reason for her to react that way.’ Dr. Bowker’s testimony supplied a response that the jury might not otherwise receive. As violence increases over time, and threats gain credibility, a battered person might become sensitized and thus able reasonably to discern when danger is real and when it is not. ‘[T]he expert’s testimony might also enable the jury to find that the battered [woman] … 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.’ [Citation.]” (Humphrey, 13 C4th at 1086.)
Hence, battered woman syndrome evidence should be considered by the jury to determine “whether the defendant had reasonable grounds for an honest belief that she was in imminent danger when considering the issue of self-defense.” (State v. Koss (90) 551 NE2nd 970, 973-74; see also People v. Humphrey (96) 13 C4th 1073, 1086 [56 CR2d 142]; State v. Kelly (N.J. Supreme Ct. 1984) 478 A2d 364, 375-78; State v. Leidholm (N.D. 1983) 334 NW3d 811; State v. Hennum (Minn. 1989) 441 NW2d 793.)
Moreover, the California Supreme Court has generally recognized the relevance of “subjective state of mind evidence” even though the ultimate test is an objective standard. In People v. Ochoa (93) 6 C4th 1199, the court first noted that the offense of gross vehicular manslaughter while intoxicated requires proof under an “‘objective'” standard: “‘whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citations].'” (Id. at 1204; but see People v. Romero (2007)149 CA4th 29, 43-44.) However, in satisfying this objective test, the prosecutor is entitled to introduce evidence of the defendant’s “subjective state of mind ….” (Id. at 1205.) This rule is justified on the theory that subjective knowledge is relevant to the objective question of “whether a reasonable person in defendant’s position would have been aware of the risks, ….” (Ibid., emphasis in original; see also FORECITE F 5.12a; see also Commonwealth v. Stonehouse (89) 555 A2d 772 [521 Pa. 41] [trial counsel ineffective in failing to request jury instruction in homicide trial which would require jury to consider cumulative effects of psychological and physical abuse when assessing reasonableness of battered person’s fear of imminent danger of death or serious bodily injury with respect to claim of self-defense]; see also Depetris v. Kuykendall (9th Cir. 2001) 239 F3d 1057 [reversible error found due to exclusion of: (1) husband’s diary depicting his acts of violence against women; and (2) the wife’s testimony that her reading of the diary caused her to believe that she was in imminent danger when she killed her husband].) [See Brief Bank # B-608 for additional briefing and citation to other out-of-state cases. See Brief Bank #B-656 for the appellant’s briefing in the Supreme Court in Humphrey.]
Instruction Package Available: [See Instruction Bank # I-858 for a package of instructions drafted by FORECITE subscriber Christie Warren relating the victim’s character and prior violent acts to self-defense.]
[Research Note: See FORECITE BIBLIO 9.35.1]
F 9.35.1 n4 Battered Person Syndrome: Admissibility Of Evidence Offered By Prosecution.
(See FORECITE F 9.35.1 n6.)
F 9.35.1 n5 Battered Women’s Syndrome: Admissibility Of Expert Opinion Concerning Defendant’s Actual State Of Mind At The Time Of The Crime.
In People v. Erickson (97) 57 CA4th 1391 [67 CR2d 740] the trial court relied on PC 29 in precluding the defendant’s BWS experts from giving an opinion about her mental state at the time of the killing. In a supplemental brief, the defendant argued this was error because PC 29 only applies to expert testimony about a mental illness, disorder or defect, whereas BWS is none of these things. (Id. at 1400-1402.) The defendant’s position was strongly supported by a 1996 report from the U.S. Department of Justice and Health and Human Services (“The Validity and Use of Evidence Concerning Battering and its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act” (May, 1996)), and also by the Supreme Court’s holding in People v. Humphrey (96) 13 C4th 1073, 1083-84 fn 3 [56 CR2d 142]. The Court of Appeal rejected the defendant’s argument, however, because the BWS experts who testified in that case considered BWS a mental defect. The appellate court said the trial court was entitled to rely upon the expert testimony in that case. (People v. Erickson (97) 57 CA4th 1391 [67 CR2d 740].) Hence, Erickson’s holding is limited in several respects.
First, Erickson would not apply to a case in which the BWS expert(s) testified–as most current BWS experts would–that BWS per se is not a mental illness, disorder or defect.
Second, Erickson was at best an imperfect self-defense case, as the abuser was shot while asleep. (Erickson, supra, at 12365.) Most battered women who kill their abusers do so under confrontational circumstances however, and if a woman who has killed under such circumstances raises a claim of perfect self-defense (like Humphrey did), it is vital to get BWS experts whose testimony will focus on battered women’s greater acuity in detecting danger, rather than on the discredited, sexist notion that all battered women are mentally defective. (As to battered women’s acuity in detecting danger, see Humphrey, supra, at 1086 and 1096-97, and authorities cited therein.)
Third, language in Erickson suggests EC 1107 only allows BWS experts to testify about battered women as a group. (Erickson, supra, at 12367 § C.) This language could be construed by some trial courts as saying BWS experts may not testify about whether the defendant in fact is a battered woman, or about how battering affected her personally. Such is clearly not the law, and a trial court which so rules will be committing clear (and probably reversible) error. (Humphrey, supra, at 1086; see also People v. Aris (89) 215 CA3d 1190, 1197-98.)
F 9.35.1 n6 Use Of Battered Person’s Syndrome By Prosecution.
The prosecution may offer expert evidence on Battered Woman Syndrome under EC 1107 to explain why a battery victim recanted his or her story on the witness stand. (See People v. Brown (2004) 33 C4th 892 [adequate foundation under EC 801 for the expert testimony that domestic violence victims often later deny or minimize the assailant’s conduct because evidence]; People v. Morgan (97) 58 CA4th 1210 [68 CR2d 772]; see also People v. Gadlin (2000) 78 CA4th 587, 594-95 [92 CR2d 890, 895-96] [battered women’s syndrome evidence admissible even though victim did not recant incidents of abuse at time of trial]; People v. Williams (2000) 78 CA4th 1118 [93 CR2d 356] [battered woman syndrome evidence is relevant when there is no evidence of prior abuse].)
F 9.35.1 n7 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 9.35.1 use of “may” allowed the jury to totally disregard the battered woman syndrome (BWS) evidence without even considering it. The 5th Edition failed to specify the additional purposes for which BWS evidence can be considered. (See CALJIC History CJ 9.35.1.)
F 9.35.1 n8 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 9.35.1 n9 Battered Women Syndrome: Writ Of Habeas Corpus.
Senate Bill 799 added PC 1473.5 allowing a writ of habeas corpus to be prosecuted on the grounds that evidence relating to battered women’s syndrome (within the meaning of EC 1107) was not introduced at the trial, and the omission affected the outcome of the case. Adds grounds for denial of a petition. (Stats. 2001, Ch. 858.)
F 9.35.1 n10 Applicability Of Battered Person Syndrome To Imperfect Self-Defense.
The 4th paragraph of CJ 9.35.1 improperly applies only to complete self-defense. When imperfect self-defense is at issue that paragraph should be modified. See Brief Bank # B-953 for briefing on this issue.
F 9.35.1 n11 Battered Person Syndrome: Failure To Request Pinpoint Instruction As Ineffective Assistance Of Counsel.
See Brief Bank # B-954 for briefing on this issue.
F 9.35.1 n12 Battered Person Syndrome: Required Foundation.
See People v. Brown (2004) 33 C4th 892, 908 [no requirement of a preliminary finding that the charged act of abuse occurred before the jury may consider Battered Person evidence under EC 1107; but there must be “independent evidence” of the charged act].
F 9.35.1 n13 Admissibility Of Expert Testimony Regarding Behavior Of Domestic Abuse Victims Based On Single Incident Of Abuse.
Regardless of its admissibility under EC 1107, expert testimony about the behavior of domestic violence victims may be admissible under EC 801 even it only one incident of abuse has occurred. (People v. Brown (2004) 33 C4th 892, 895-96; see also People v. Williams (2000) 78 CA4th 1118; compare People v. Gomez (99) 72 CA4th 405.)
A Previously Battered Person Has The
Right To Act More Quickly And Harshly in Self-Defense
*Add to CJ 9.35.1:
A person who suffers from battered woman syndrome has a greater sensitivity to danger than does the ordinary person. As a result, a person who suffers from battered woman syndrome is justified in acting more quickly and taking harsher measures for her protection in the event of assault either actual or threatened, than would a person who is not subject to battered woman syndrome.
Evidence has been received in this case that the defendant suffers from battered woman syndrome and has a greater sensitivity to danger. If you believe that the defendant has a greater sensitivity to danger and, because of such sensitivity, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or alleged assault victim], you are to consider such sensitivity in determining whether the defendant acted reasonably in protecting her life or bodily safety.
Points and Authorities
In recent years, the scientific literature has revealed the contours of battered woman syndrome. Insofar as it is relevant here, the literature indicates that a battered woman has a “greater sensitivity to danger.” (People v. Aris (89) 215 CA3d 1178, 1194 [264 CR 167].) Thus, a “woman who has been battered and then is threatened with more abuse is more likely to perceive the danger involved faster that [sic] one who has not been abused.” (Ibid.; see also People v. Humphrey(96) 13 C4th 1073 [56 CR2d 142])
In light of the research on the subject, the legislature has enacted EC 1107 which specifically authorizes the admission of expert testimony on battered woman syndrome. Importantly, EC 1107 does not limit the purpose for which the defendant may use such evidence. Rather, the evidence may be used to show “the physical, emotional, or mental effects upon the beliefs, perceptions, or behaviors of victims of domestic violence, ….” (EC 1107(a).)
Prior to the enactment of EC 1107, the appellate courts issued two decisions which limited the purposes for which the defendant could use evidence of battered woman syndrome. (People v. Day (92) 2 CA4th 405 [2 CR2d 916]; People v. Aris, 215 CA3d 1178.) Presumably, these opinions have been supplanted by EC 1107. Moreover, it is essential to note that the analysis in the opinions was erroneous in any event.
When faced with evidence of battered woman syndrome, California courts have held that it is admissible for two limited purposes: (1) to prove the subjective component of a self-defense theory (i.e., the defendant had an “honest belief” that her life was threatened); and (2) to disabuse the jury of common misconceptions concerning abused women. (People v. Day, 2 CA4th 405, 415-16; People v. Aris, 215 CA3d 1178, 1197; see alsoState v. Nemeth (Ohio 1998) 694 NE2d 1332 [82 Ohio St. 3rd 202] [expert testimony as to battered child syndrome was admissible in the prosecution of a 16-year old for aggravated murder of his mother. The battered child syndrome evidence was relevant to self-defense and the behavioral and psychological effects of child abuse].) Importantly, existing case law holds that evidence of battered woman syndrome is not admissible on the question of whether the defendant’s act of self-defense was objectively reasonable. (Day 2 CA4th at 414-15; Aris 215 CA3d at 1196.) As will be explained below, the courts have erred in reaching this conclusion.
Under California law, to be exculpated on a theory of self-defense, a defendant must prove two points: (1) a subjectively honest belief in the need for self-defense; and (2) an objective need for self-defense based on a reasonable person standard. (People v. Flannel (79) 25 C3d 668, 674 [160 CR 84]; People v. Aris (89) 215 CA3d at 1196.) With respect to prong two, the reasonable person standard is not to be applied in the abstract. Rather, the jury is to consider the question of reasonableness based on the particular facts known to the defendant. (People v. Bush (78) 84 CA3d 294, 302-04 [148 CR 430].)
Given these principles of law, the courts have held that evidence of battered woman syndrome is not admissible on the objective prong of self-defense. This is purportedly so because battered woman syndrome relates solely to “the defendant’s subjective state of mind” rather than the objective reasonableness of her actions. (Aris 215 CA3d at 1196, emphasis in original; accord Day 2 CA4th at 414-15.) In reaching this conclusion, the courts have misapplied the traditional California law of self-defense.
In this regard, the essential point is that the objective reasonableness of a defendant’s conduct must be measured from the perspective of the facts known to the defendant. For example, when a defendant has previously received threats of violence from an individual, she is entitled to act more quickly and harshly in self-defense than is ordinarily the case. (People v. Moore (54) 43 C2d 517, 527-29 [275 P2d 485]; People v. Bush 84 CA3d at 302-04; see FORECITE F 4.005a.)
By parity of reasoning, a battered woman is entitled to introduce evidence concerning her special sensitivity to the danger of serious injury. In this regard, this evidence cannot logically be limited solely to the defendant’s subjective mental state. This is so because any reasonable person in the battered woman’s position would act more quickly and harshly in self-defense when armed with the special knowledge that a violent attack is forthcoming.
Although the analogy is not exact, it is interesting to note that 4th Amendment jurisprudence supports the foregoing analysis. In this regard, the courts have always required the police to adhere to a standard of objective reasonableness. However, in applying an objective standard, the courts have deferred to the training and experience of the police which allows them to find probable cause which would otherwise be unapparent to the ordinary person. (People v. Superior Court (Kiefer) (70) 3 C3d 807, 827 [91 CR 729].) Given this deference to the objective experience of police officers, no reason appears why a battered woman should not enjoy the same deference under the law.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
[See FORECITE F 9.35.1 n3 and F 9.35.1 n5.]
ALERT: Justice Brown’s Concurrence In Humphrey Is Part Of The Holding. See FORECITE F 9.35.1 n3.
[See Opinion Bank # O-136 for additional materials on BWS and Battered Child Syndrome
Victimization (PTSD, BWS, etc.) As Mental State Defense: See FORECITE F 3.32 n2.)
RESEARCH NOTES: See FORECITE BIBLIO 9.35.1; Battered Child Defendants in California: The Admissibility of Evidence Regarding the Effects of Abuse on a Child’s Honest and Reasonable Belief of Imminent Danger, Carin C. Azarcon, Pacific Law Journal, Vol. 26, No. 3, April 1995, p. 831.
Impact Of Prior Assault And Battery On Defendant Applicable To Any Person
*Add to CJ 9.35.1:
A person who has previously been the victim of assault and suffered injuries therefrom may have a greater sensitivity to danger than does the ordinary person. As a result, a person who has previously been the victim of assault and suffered injuries therefrom may be justified in acting more quickly and taking harsher measures for [his] [her] protection in the event of assault either actual or threatened, than would a person who has not been so injured or assaulted.
Evidence has been received in this case that the defendant was previously assaulted and was injured thereby and had a greater sensitivity to danger. If you believe that the defendant had a greater sensitivity to danger, and because of such sensitivity, had reasonable cause to fear greater peril in the event of an altercation with _____________________, you are to consider such sensitivity in determining whether the defendant acted reasonably in protecting his life or bodily safety.
Points and Authorities
The impact of a prior assault and battery on self-defense should not be limited to battered women (see FORECITE 9.35.1a) but should apply to all persons. (See generally FORECITE F 9.35.1 n3; F 5.12a.)