The Colorado Court of Appeals ruled today that judges may allow prosecutors in domestic violence cases to admit expert testimony to explain why a domestic violence victim might recant her original story.The Facts and Trial
In a case before the court Donald Wallin’s ex-wife picked him up from prison where he had been released on parole.
She initially told police that he then grew upset because she had another man’s child while he was in prison, took $60 from her purse, beat her up (fracturing a bone next to her eye) and stole her car.
Shortly after charges were filed, she denied everything, said she was on drugs when she called the police, and that her head injury was unrelated.
She had to be arrested to be compelled to testify at trial, where she testified that she was assaulted after which Wallin immediately apologized, but that Wallin didn’t steal the money, which she gave him as a gift, or the car, which she gave him permission to take. A prosecution expert witness testified about why victims of domestic violence recant at trial.
The jury convicted Wallin of assault, but acquitted him of car theft. The prosecution dismissed its $60 theft charge.
Wallin was sentenced to fourteen years in prison.
The Appeal and Holding
On appeal, Wallin argued, among other things, that testimony of an expert witness on why, in general, domestic violence victims often recant their testimony was improper. The Colorado Court of Appeals disagreed, holding (citations omitted):
In cases involving domestic violence, expert testimony concerning the reasons for victims’ recantations is admissible. The reliability of the principles underlying opinion evidence about battered women is well recognized.
He was ordered resentenced for procedural reasons, but given that his conviction of a serious crime of violence committed while on parole stands, it is unlikely that he will be resentenced to a short prison term. The minimum sentence in the case appears to be ten years under the circumstances.
This decision solidifies a line of precedent established in a similar case, People v. Johnson, in 2002. It could have broad implications of domestic violence case prosecution strategies, because recantations are so common in domestic violence cases.
As this case illustrates, however, nothing compels a jury to believe expert testimony. In Wallin’s case, no convictions were secured on the counts where his ex-wife completely recanted her testimony, notwithstanding the explanation from the expert witness. An acquittal cannot be appealed by the prosecution, even if the evidence of guilt is overwhelming.
The court’s holding allowing expert testimony on the issue at all is notable because, historically, the credibility of a witness has been viewed as the sole province of a jury which can’t be assisted by expert testimony upon why someone might or might not tell the truth at a particular time.
Expert testimony on recantation by domestic violence victims parallels efforts, with mixed success in the courts, to introduce expert testimony on the reliability of the testimony of witnesses who are abused children, eye witnesses to crime who identify a stranger alleged to be a perpetrator, and witnesses who base their claims on repressed memories. Eye witness misidentification is a leading cause of wrongful convictions, but expert testimony on the matter is routinely excluded from evidence in jury trials.
Footnote On Prosecutions Without Victim Consent
This case also illustrates the fact, well known to lawyers, but less well known by members of the general public: Criminal cases can be prosecuted without a victim pressing charges, without the victim’s consent, and indeed, over the victim’s objections. This isn’t possible in civil litigation where the victim, rather than “the People” prosecutes the case.
In theory, prosecutions without a victim’s consent are permitted because the public in general has an interest in seeing criminal cases prosecuted. Prosecutors often pursue domestic violence cases without a victim’s consent because they believe that this allows the state to help a victim, for her own good, by ending a cycle of violence, even when she is afraid of bringing charges or reluctant to do so as a result of her mixed feelings about the relationship.
While a victim’s consent to prosecute a case is not required by law, however, a decision to prosecute without a victim’s tacit consent is uncommon and controversial. Normally, the law assumes that people know what is in their own best interests. And, in cases like this one, a prosecution without a victim’s consent can result in a victim being arrested essentially because she is a crime victim, in order to force her to testify at trial under penalty of prejury, arguably causing the state to revictimize and disempower her.