California Criminal Jury Instructions (CALCRIM) (2017)

850. Testimony on Intimate Partner Battering and Its Effects: Credibility of Complaining Witness

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(iv) Evidence
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.
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
Several courts of review have concluded there is no sua sponte duty to give a
similar limiting instruction (see CALCRIM No. 1193, Testimony on Child Sexual
Abuse Accommodation Syndrome) when an expert testifies on child sexual abuse
accommodation syndrome. (People v. Mateo (2016) 243 Cal.App.4th 1063,
1073–1074 [197 Cal.Rptr.3d 248]; People v. Sanchez (1989) 208 Cal.App.3d 721,
736 [256 Cal.Rptr. 446] and People v. Stark (1989) 213 Cal.App.3d 107, 116 [261
Cal.Rptr. 479] [instruction required only on request].) See also People v. Humphrey
(1996) 13 Cal.4th 1073, 1088, fn. 5, 1090–1091, 1100 [56 Cal.Rptr.2d 142, 921
P.2d 1], which concludes that a limiting instruction on battered woman syndrome is
required only on request. But see People v. Housley (1992) 6 Cal.App.4th 947,
958–959 [9 Cal.Rtpr.2d 431], which did find a sua sponte duty to give CALCRIM
No. 1193.
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
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unclear if the court is required to give a cautionary admonition sua sponte when
such evidence is admitted.
Related Instructions
If this instruction is given, also give CALCRIM No. 303, Limited Purpose
Evidence in General, and CALCRIM No. 332, Expert Witness Testimony.
See also CALCRIM No. 851, Testimony on Intimate Partner Battering and Its
Effects: Offered by the Defense.
AUTHORITY
• 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].
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 49–52.
3Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71,
Scientific and Expert Evidence, § 71.04[1][d][v][C] (Matthew Bender).
RELATED ISSUES
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
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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].)
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