Social Science Evidence(pt. 2) – aarfo – March 11 (11/_)

Picked up some clients, wrote some angry letters, got drunk with very old friends, and wrote up some shit on TV PSYCHOLOGY

Social Science Evidence Part 2 – Things you’ve heard A LOT if you ever watched Law & Order: Special Victims Unit

We’ve already addressed probably the biggest blind spot for juries in both civil and criminal cases, namely that of eyewitness testimony and memory. However, there is a lot more to psychology in the courtroom, much less psychological evidence in the courtroom. If I get really hot and bothered about it, I’ll start a separate thread on civil commitment and accompanying issues.

My remaining discussion on psychological evidence will be broken up into what can be best termed in the modern era as Law & Order Psychological Disorders: Battered Woman’s Syndrome, Rape Trauma Syndrome, Child sex abuse issues, Black Rage, and Munchausen’s by Proxy. I also have a teensy bit about profiling, false confessions, and future dangerousness/likelihood to reoffend determinations. If the subject matter seems to jump around a bit then blame shoddy psychologists and psychiatrists for not coming up with a centralized theory when the courts needed it in the 80’s.

Battered Woman’s Syndrome

This is one of the most mischaracterized pieces of psychological evidence. It is also heavily misperceived among lawyers. Unsurprisingly, highly educated professionals are as much prone to confirmation bias and pervasive misinformation as any layman. If I accomplish anything through my relatively limited understanding of these issues, it will be to dispel some of the myths perpetrated by TV and bloodthirsty “victim” advocates. Battered Woman’s Syndrome (BWS) is a label given to a somewhat common pattern of abuse by men on their significant others. It is not an abused woman finally snapping or, really, much of a defense to criminal acts. It is a way to understand domestic abuse and the inherent violence involved in an abusive relationship.

In the late 70’s a nice lady doctor published a work called The Battered Woman. It outlined the basic template of abuse heaped upon a woman by a man in an abusive relationship. It defined what made a woman “battered” and tried to get an understanding of why these relationships continue and fester. It was pretty shoddy scientific work but who cares because later larger, studies lent credence to the theory. In short, a woman who is physically abused (acutely battered) more than once and stays in the relationship is a “battered woman.”

How do these relationships form? Why do women stay in them? Why do these women sometimes “snap” and retaliate? How does being in this relationship alter the perceptions and understandings of the people participating in it? All VITAL questions that everyone involved in a prosecution must understand in order to reach a just verdict. All too often people choose to ignore the, perhaps, unique state a repeatedly abused person is put in and substitute their own judgment, knowledge, and understanding.

The basis of the syndrome is the “cycle of violence” that occurs in an abusive relationship. There is a ramping up phase (“tension building phase”), the beating phase (acute battering phase), and the If I loved Him More phase (a calming and reconciliatory phase). Typically, an abused woman is intentionally isolated by her partner, which leads to a further sense of inescapability. Threats of future violence may be implicit or explicit during the first two phases. At some point criminal charges are brought either against the abuser for assaults and domestic violence or against the abused for murder or attempted murder of the abuser. How should knowledge of the psychology affect the law: the defenses available, mitigating factors, or insanity defenses?

Use in the Courtroom

WHEN is the crucial question an astute defense lawyer should be asking: both when the violence or counter violence occurred and when the evidence is being offered in the case. BWS can be offered to support a perfectly ordinary claim of self-defense. An abused partner is uniquely positioned to know when the abuser is about to strike. The abused has experienced the growing tension and its ultimate release multiple times. The abused can tell by inflections, voice tension, small habits and almost imperceptible actions when the abuse is about to begin. The abused blasts that motherfucker right in his goddamn bull neck right before he picks up the belt to beat her again. To any outside observer it would appear fundamentally unreasonable, an ambush, an unprovoked attack. However, to the abused, they knew that another beating was mere minutes if not seconds away and they finally acted. BANG. This would be a totally acceptable case of self-defense as long as you could get the expert and the defendant to explain how and why they knew they were in imminent danger of immediate attack.

BWS can be used to support more suspect cases of self-defense. Instead of the murder happening in the heat of the moment or immediately prior it happens in the middle of the night while her dear husband is asleep. Sometimes the abused woman will hire a third party to kill her husband. These are NOT self-defense cases. A clever and forceful lawyer might be able to present a similar case for the sleeping husband as I did above for the awake husband. A murder for hire case, while uncommon, is not unheard of and has been the subject of multiple L&O episodes I believe. In some jurisdictions, you might be able to do an “imperfect defense” of self-defense and get the murder mitigated to some form of manslaughter. That’s a heck of a lot better than the needle or life without parole.

BWS can be used in even more suspect conditions, as a duress defense. Instead of trying to argue that there is imminent danger or constant danger a defendant can argue that they are trapped in a controlling situation from which there was no escape and their will was suborned to the abuser. Commonly it is raised as a defense where an abusive boyfriend or husband forces his partner to do something illegal: burglary, drug smuggling, and theft. Most courts don’t accept this kind of evidence as a duress defenses has an extremely high burden. I suppose it is probably the right line to draw – they’re still independent adult human beings.

Finally, defendants use BWS to try to mitigate behavior even more removed from the abuse – that of the duty to protect a child. Courts are pretty divided about this issue. Should a caregiver be allowed to present BWS evidence to mitigate a duty to protect his or her own child? Who knows? It’s really too depressing to think about all at once after the previous paragraphs. I guess if you expect a parent to protect their child even when it puts their own life in imminent danger you would be against this evidence being admitted. If you were more in favor of a risk/benefit analysis style of parental protection then you would be ok with admission. I prefer the ultimate fence straddling position that it should be inadmissible at trial but admissible for sentencing purposes.

Prosecutors Get Their Days Too

Battered Women Syndrome evidence can also be offered by the other side of the aisle. Prosecutors are often frustrated both professionally and personally by the habit of abused partners to delay reporting, or recant their accusations. The cycle of violence model explains why abused spouses would fail to come forward, recant, and remain with their abuser even after multiple instances.

Defense lawyers will use recantations, seeming contradictions and delays to create the impression that there was no abuse. Revenge or a heat of the moment act of false accusation during a spat are common explanations. These accusations and counter-accusations are hardly unheard of.

With BWS Prosecutors can explain why a victim would refuse to come forward or falsely recant.

Some tricky very technical stuff only lawyers or aspiring lawyers will care about

As an aside, this kind of evidence is especially tricky from a legal perspective because it is fraught with evidentiary limitation sinkholes. BWS evidence can be fairly categorized as expert evidence, character evidence, and bolstering. Expert testimony has special rules for admission. Character evidence is generally inadmissible except in certain circumstances.
The rules of evidence expressly forbid lawyers from bolstering their own witnesses. (NOTE: You can rehabilitate their credibility after it has been attacked.) Defendants get a special break on this kind of thing when it comes to criminal cases. You have an absolute right to present a defense and trial judges are generally very reluctant to prevent you from mounting a good attack. However, this kind of evidence is a minefield of admissibility problems. SO STUDY UP YOU IDIOTS.

A further aside: This is generally all about women but has largely been expanded to a Battered Person Syndrome. So for all the abused men out there (and there are A LOT) you too can benefit from advances researched by the feminist movement. Courts have ruled that abused children can also present similar evidence.


Despite all this writing BWS is certainly not without critics. Lawyers have attempted to apply it in ambush murders, murder for hire, mutilations (by the abused), and other defenses which would seem outside the scope of the syndrome. Furthermore, the syndrome itself is largely contradictory, or at least relies on heavily outdated psychological understandings. How can a woman learn that she is helpless, trapped, without agency or respite but suddenly rise up and in an ultimate act of independence, strike down her abuser? “Learned helplessness” was used as an explanation for why women stayed in these relationships but that seems inconsistent with later decidedly non-helpless acts.

Furthermore, BWS essentially opens up a door that would leave rapists envious. With this syndrome in hand, the deceased can be safely portrayed as a sadistic monster who deserved it. BWS also explains the lack of medical records, reports of abuse, outside observations of abuse, or outside observations of a “bad marriage.” It also twists the limited concept of self-defense, someone fighting for their life suddenly from an unexpected attack, and attempts to expand it to the “women’s perspective” where it is necessary for them to strike while their stronger more violent abuser is helpless. Some of the early scholars even own up to this claim by arguing that self-defense is inherently male biased and that maybe ambushes would be justified.

Finally, BWS is itself a walking stereotype of women. The wife is physically and mentally weak, passive, and helpless. Studies seem to show that evidence on BWS tends to reinforce stereotypes of women rather than abate them or inform the jury.

Luckily, none of this shit matters so you can all relax. There are almost no ambush killings or murder for hires. Almost all cases where BWS is used ultimately involved a confrontation where the abused finally fought back. In addition, self-defense is broadly defined and only requires non-idiot lawyers to inject even the slightest “women’s perspective” into it. All the criticisms boil down to minor chinks in an otherwise stalwart piece of scholarship. Furthermore, all the criticisms should really be levied at inappropriate uses of the defense, not as an argument for totally dispensing with it.

Admissibility – I’ve discussed this somewhat throughout but just in case…

BWS can always be admitted to negate an element of the crime. Hot Tip: This is probably the simplest aspect in psychological evidence but the one most missed by laypersons and lawyers alike. It can also be used to support a claim of self-defense, particularly the common element of imminent danger. Even where it fails to support a claim of self-defense, it may result in a lesser conviction or mitigation during sentencing.

Yowza that took a lot longer to explain than I had hoped. It will, however, speed up the next several bits immensely as I’ve laid out how this kind of evidence is used already so no need to go over the basics again.

Next Time – Rape Trauma Syndrome, Child Sex Abuse, Black Rage, PMS Made Me Do It, Munchausen’s by Proxy, A bit on profiles, a bit on future dangerousness


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