850. Testimony on Intimate Partner Battering and Its Effects: Credibility of Complaining Witness
You have heard testimony from <insert name of expert> regarding the effect of (battered women's syndrome/ intimate partner battering/ <insert other description used by expert for syndrome>).
______'s <insert name of expert> testimony about (battered women's syndrome/intimate partner battering/ <insert other description used by expert for syndrome>) is not evidence that the defendant committed any of the crimes charged against (him/her).
You may consider this evidence only in deciding whether or not ______'s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of (his/her) testimony.
The court has a sua sponte duty to give this instruction if an expert testifies on intimate partner battering and its effects, previously referred to as battered women's syndrome. (See People v. Housley (1992) 6 Cal.App.4th 947, 958-959 [8 Cal.Rptr.2d 431] [sua sponte duty in context of child sexual abuse accommodation syndrome]; People v. Bledsoe (1984) 36 Cal.3d 236, 250 [203 Cal.Rptr. 450, 681 P.2d 291] [rape trauma syndrome not admissible to prove rape occurred].) In People v. Brown (2004) 33 Cal.4th 892, 906-908 [16 Cal.Rptr.3d 447, 94 P.3d 574], the Supreme Court held that testimony from an expert in battered women's syndrome could be admitted under Evidence Code section 801 even though there was no evidence of prior incidents of violence between the defendant and the alleged victim. The court held that the expert could testify generally about the "cycle of violence" and the frequency of recantation by victims of domestic abuse, without testifying specifically about "battered women's syndrome". (Ibid.) It is unclear if the court is required to give a cautionary admonition sua sponte when such evidence is admitted.
See also CALCRIM No. 851, Testimony on Intimate Partner Battering and Its Effects: Offered by the Defense.
Instructional Requirements. See Evid. Code, § 1107(a); People v. Humphrey (1996) 13 Cal.4th 1073, 1088, fn. 5 [56 Cal.Rptr.2d 142, 921 P.2d 1].
Abuse Defined. Evid. Code, § 1107(c); Fam. Code, § 6203.
Domestic Violence Defined. Evid. Code, § 1107(c); Fam. Code, § 6211.
Relevant After Single Incident of Abuse. See People v. Brown (2004) 33 Cal.4th 892, 906-908 [16 Cal.Rptr.3d 447, 94 P.3d 574]; People v. Williams (2000) 78 Cal.App.4th 1118, 1129 [93 Cal.Rptr.2d 356].
Relevant to Rehabilitate Victim's Credibility. People v. Gadlin (2000) 78 Cal.App.4th 587, 594-595 [92 Cal.Rptr.2d 890] [victim recanted incident and reunited with abuser]; People v. Morgan (1997) 58 Cal.App.4th 1210, 1215-1217 [68 Cal.Rptr.2d 772] [victim recanted].
1 Witkin, California Evidence (4th ed. 2000) Opinion Evidence, §§ 48-51.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71, Scientific and Expert Evidence, § 71.04[d][v][C] (Matthew Bender).
Assumptions Underlying Expert Testimony
It is unnecessary, and potentially misleading, to instruct that the expert testimony assumes that physical or mental abuse has in fact occurred. (See People v. Gilbert (1992) 5 Cal.App.4th 1372, 1387 [7 Cal.Rptr.2d 660] [in context of child sexual abuse accommodation syndrome].)
Definition and Preferred Name
In 2004, the Legislature amended Evidence Code section 1107(d), changing all references from "battered women's syndrome" to "intimate partner battering and its effects." Previous decisional law continues to apply. (Evid. Code, § 1107(f).) Battered women's syndrome has been defined as "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." (People v. Humphrey (1996) 13 Cal.4th 1073, 1083-1084 [56 Cal.Rptr.2d 142, 921 P.2d 1].) The Supreme Court had previously noted that experts prefer to call the syndrome "expert testimony on battered women's experiences." (See People v. Humphrey, supra, 13 Cal.4th at pp. 1083-1084, fn. 3.)
No Testimony on Actual State of Mind
While evidence is admissible "to explain how [a] defendant's asserted subjective perception of a need to defend herself 'would reasonably follow from the defendant's experience as a battered woman,' "an expert may not give an opinion "that the defendant actually perceived that she was in danger and needed to defend herself." (People v. Erickson (1997) 57 Cal.App.4th 1391, 1400, 1401 [67 Cal.Rptr.2d 740] [§ 1107(a) codifies existing rules regarding battered women's syndrome testimony; original italics].) Section 1107 "does not create an exception to Penal Code section 29," which prohibits an expert who is testifying about a mental defect from testifying about whether a defendant had a required mental state. (People v. Erickson, supra, 57 Cal.App.4th at pp. 1401-1402 [syndrome was characterized as mental defect].)
(New January 2006)