Arizona Supreme Court affirmed felony domestic violence conviction. Trial court did not abuse its discretion in allowing “cold” expert witness testimony on why domestic violence victims often stay in abusive relationships. Expert testimony was not impermissible offender profiling.
The defendant was convicted of felony domestic violence for having abused his girlfriend at a Flagstaff motel. The jury found him guilty on multiple counts:
Defendant appealed. The conviction was affirmed by the Arizona Court of Appeals, Division One (Phoenix). Appeal was then taken to the Arizona Supreme Court. Conviction and sentence were affirmed while part of the Court of Appeals opinion was vacated.
Arizona felony domestic violence statutes include:
Aggravated assault (class 2, 3, 4, 5, or 6 felony) ARS § 13-1204;
Aggravated domestic violence (class 5 felony) ARS § 13-3601;
Influencing a witness (class 5 felony) ARS § 13-2802; and
Kidnapping (class 2, 3, or 4 felony) ARS 13-1304.
In her initial statement to police, the victim asserted it was her boyfriend (defendant) who had threatened her on the telephone when he said: “I told you I would kill you if you cheated on me.” That it was the defendant who “had beaten and strangled her” at a motel in Coconino County. When she met with the prosecutor, however, she recanted her initial statement to police, offering a wholly different story blaming herself for her injuries. The victim told the prosecutor that she was injured in a “bar fight” but that she had no memory of the details. And that her boyfriend had not harmed her in any way – he was innocent.
At trial, recorded phone calls defendant made from jail to the victim were admitted as evidence. One call included defendant’s apology and promise to marry the victim when he was released from custody. To this, the victim responded: “[Y]ou shouldn’t have tried to kill me … You know exactly what you did.”
The victim testified at trial that, because she had been drinking, she had no recollection of who beat her up that day. Furthermore, in her initial statement to police she falsely accused her boyfriend of abuse because she was jealous. She had cheated on the defendant, too.
Addressing the victim’s changed story and continued relationship with the defendant, the state offered expert witness testimony on the general reluctance of many such victims to testify against their abusers.
Dr. Kathleen Ferraro was to offer “blind” or “cold” testimony, meaning she was to educate the jury about general principals, but not to apply those principles to the facts of this case. See Ariz. Rule of Evidence 702. Dr. Ferraro’s testimony was offered to assist the jury in understanding the emotional and psychological reasons for why such victims often remain in such relationships.
Defendant objected to Dr. Ferraro testifying on grounds it would not assist the jury in fact finding and amounted to “improper profile evidence and vouching.” After considering admissibility of the expert’s cold testimony, the judge found it relevant but to be “limited to questions designed to help the jury understand the sometimes counterintuitive behaviors of domestic violence victims.” Notably, the defendant did not object on Rule 403 grounds and did not argue prejudice.
According to the expert, it is common for victims of domestic violence to remain in a relationship and be intimate with their abusers. Why? Namely, fear of retaliation, shame, and pressure from family or friends, often exacerbated by “chemical dependence and alcohol abuse.”
Among other things, Dr. Ferraro testified on how victims may be self-blaming. On how abusers may turn their violent acts around in their favor: “[I]f you hadn’t done this or you had done that as I told you to do, this never would have happened, so it’s your fault.”
Additionally, she testified how “very typical” it is for victims of domestic abuse to recant their statements and change their stories. Discussing psychological manipulation by abusers, generally, Dr. Ferraro stated that she has actually seen “women go to jail and take the responsibility for a crime … their abusive partner has committed.”
After closing arguments in which the prosecutor did not mention the expert’s testimony, the jury was instructed it was not bound by any expert opinion and should give it the weight believed worthy. Defendant was convicted.
Affirmed by the Arizona Court of Appeals, although it found harmless error occurred at trial. The Arizona Supreme Court granted review on the issue of whether the trial court abused its discretion to include an error of law by permitting cold expert witness testimony that constituted impermissible profile evidence.
Did this blind, cold expert testimony constitute impermissible offender profiling? In the case of State v. Ketchner, 236 Ariz. 262 (Ariz. 2014), this court previously held that cold expert testimony constituted impermissible profile evidence and should be precluded if it “implicitly invited the jury to infer criminal conduct based on the [cold expert’s descriptions of] characteristics.”
On the one hand, the state “may not offer ‘profile’ evidence as substantive proof of the defendant’s guilt” because of the risk he or she will be convicted “not for what he did but for what others are doing.” Citing State v. Lee, 191 Ariz. 542 (Ariz. 1998).
On the other hand, expert testimony is admissible to explain to jurors the victim’s seemingly inconsistent behavior and to aid the jury in weighing the victim’s credibility. Citing State v. Moran, 151 Ariz. 378 (Ariz. 1986). Such testimony must be relevant, and be of probative value not substantially outweighed by other dangers, including “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” See Ariz. R. Evid. 403.
The rule is that “evidence of offender characteristics may be admissible, subject to a Rule 403 analysis, if it is relevant for a reason other than to suggest that the defendant possesses some of those characteristics and therefore may have committed the charged crimes.”
Holding no abuse of discretion by the trial court in allowing cold expert witness testimony, the Arizona Supreme Court advised:
“[T]rial courts should exercise great caution in screening, admitting, and limiting this type of evidence. Evidence describing the characteristics of offenders, even as part of a description of victim behavior, could imply that a defendant is guilty. This potential for undue prejudice requires that trial courts carefully scrutinize such evidence.
“If such testimony is admitted, the defendant is entitled to limiting instruction under [Ariz. R. Evid.] Rule 105 … to explain to the jury the limited purpose and scope of such testimony. … [A]lthough testimony about offender or victim characteristics from a ‘cold,’ ‘blind’ expert is not categorically inadmissible, that does not mean a trial court should automatically admit it. Rather, trial courts should filter such proffered evidence through the screens of [Ariz. R. Evid.] Rules 401, 402, 403, and 702 … [W]e caution trial courts to limit ‘cold’ and ‘blind’ testimony from expert witnesses to matters within the scope of their expertise. Such experts should not be allowed to speak in broad, categorical terms about supposedly ‘common’ or ‘usual’ occurrences without empirical support.”
Court of Appeals decision vacated in part. Trial court convictions and sentences affirmed.
For precise language, read the court’s original opinion. Legal citations omitted.
Assault and domestic violence are serious criminal offenses in Arizona, but there is help available. To learn more about what action is possible under differing circumstances, take a moment to visit our domestic violence resource page.