10.1 Overview
This chapter addresses evidentiary problems that are likely to arise in criminal cases involving allegations of domestic violence. Research overwhelmingly demonstrates that domestic violence victims are most vulnerable to an assault when they attempt to leave or sever the relationship with the defendant. Evidentiary issues arising in domestic violence cases are often complicated by the fact that the victim is particularly vulnerable at this stage, and thus may be reluctant to testify or may even refuse to do so. The victim often has learned that the perpetrator will follow through with threats of retaliation for the victim's efforts to leave or seek help from the justice system. The victim may also believe from experience that the intervention of the criminal justice system will not be effective in protecting the victim, the children, or the victim's family.

Victims of all types of violent crime may be reluctant to testify against the assailant due to a number of factors. These can include fear of retaliation by the defendant; unwillingness to face the assailant again in the courtroom; a feeling of shame or guilt; belief their behavior in some way caused the attack; and a desire to put the whole incident behind them. Of course, as with any crime, victims also may make accusations they cannot later support under oath. A domestic violence victim’s reluctance to testify may be heightened by the fact that defendant may be living with the victim, be familiar with his/her daily routine, and have ongoing access to the victim. In addition, the victim and the defendant may have children together. Since domestic violence may not always be considered by civil courts in determining child visitation and custody, the perpetrator may have continued access to the victim through arrangements for child visitation.

It is important for those working in the criminal justice system to distinguish between victims who are reluctant to testify and those who refuse to testify. Many victims who are initially reluctant to testify will agree to do so if provided with adequate support during the criminal justice process. The court must always remain impartial and must not attempt to coax testimony from a witness who does not wish to provide testimony. On the other hand, when the court has reason to believe that the witness' reluctance to testify arises from fear or coercion, the court may act to protect the administration of justice against improper influences. In those circumstances, the court can decrease the victim's reluctance to testify by protecting the victim through appropriate court orders, providing the victim with support through victim advocacy services, providing accurate information regarding the criminal court process, and otherwise preventing the perpetrator from using further illegal means to continue the pattern of coercive control of the victim. These kinds of protection are authorized under the Victims of Crime Act, §31-26-1 et seq.

10.2 Discovery

10.2.1 Victim/Counselor Privilege
A victim's communications with a domestic violence counselor are generally not subject to discovery or subpoena without permission of the victim. Under the Victim Counselor Confidentiality Act, §31-25-1 et seq., neither a victim nor a victim counselor can be compelled to:

• Provide testimony or produce records concerning confidential communications for any purpose in any criminal action or other judicial, legislative or administrative proceeding.
• Provide testimony in any civil or criminal proceeding that would identify the name, address, location or telephone number of a safe house, abuse shelter or other facility that provided temporary emergency shelter to the victim of the offense or occurrence that is the subject of a judicial, legislative or administrative proceeding unless the facility is a party to the proceeding.

§31-25-3.

The Act's definitions section, §31-25-2, includes the following:

• "Confidential communication" means any information exchanged between a victim and a victim counselor in private or in the presence of a third party that is necessary to facilitate communication or further the counseling process, which is disclosed in the course of the counselor's treatment of the victim for any emotional or psychological condition resulting from a sexual assault or family violence.
• "Victim" means a person who consults a victim counselor for assistance in overcoming adverse emotional or psychological effects of a sexual assault or family violence.
• "Victim counselor" means any employee or supervised volunteer of a victim counseling center or other agency, business or organization that provides counseling to victims who is not affiliated with a law enforcement agency or the office of a district attorney, has successfully completed forty hours of academic or other formal victim counseling training or has had a minimum of one year of experience in providing victim counseling and whose duties include victim counseling.
• "Victim counseling" means assessment, diagnosis and treatment to alleviate the adverse emotional or psychological impact of a sexual assault or family violence on the victim. Victim counseling includes crisis intervention.

A victim does not waive the Act's protections by testifying in court about the crime. If the victim partially discloses the contents of a confidential communication while testifying, either party may request the court to rule that justice requires waiver of the privilege. Any waiver must apply only to the extent necessary to require a witness to respond to questions concerning the confidential communication that are relevant to the facts and circumstances of the case. §31-25-4(A). A victim counselor does not have authority to waive the privilege. §31-25-4(B).

10.2.2 Victim's Location
In New Mexico, the address of a victim of domestic violence is not protected by statute. The court, however, may wish to keep the victim's address or phone number from the defendant, particularly in those cases where the victim has moved to a shelter or some other location unknown to the defendant. Section 31-25-3(B) prohibits compelled disclosure by the victim or the victim's counselor of the address of a safe house, an abuse shelter, or an emergency facility providing temporary shelter. Where appropriate, special arrangements may be necessary to protect the defendant's right to discovery from the alleged victim without revealing a home address.

10.3 Jury Selection Issues
Judges should be attentive to biases among prospective jurors when considering challenges for cause.

Potential jurors--male and female--may hold "traditional" or religious-based attitudes regarding domestic violence that render them unable to hear cases fairly and impartially. They may see criminal justice intervention as an invasion of the family's privacy, interference in the spousal relationship, and/or violative of the male's historical sense of "entitlement" to control the household and its members. While they have an unquestioned right to hold such beliefs personally, such beliefs may still render them unqualified to serve as impartial jurors in such cases. Conversely, a person who has been or is close to a victim of domestic violence, particularly recently, may feel too close to the alleged victim of the defendant to exercise the role of a juror impartially.

Voir dire examination by parties in domestic violence cases should identify these individuals whose beliefs may cause them to experience difficulty in weighing evidence impartially, and in determining witness credibility in these cases. It may be advisable to instruct prospective jurors that portions of the voir dire examination can be conducted in chambers, so that jurors feel free to reveal potentially embarrassing or upsetting information. The defendant, his or her counsel, and the prosecutor should be present during the in camera proceeding.

To identify biased jurors who may be subject to challenge for cause, judges should be particularly attentive to prospective jurors' answers to questions concerning such issues as:

• Whether the juror sees domestic violence as an appropriate matter for the courts or otherwise less serious than other violent crimes.
• Whether the juror has been or knows a victim of domestic violence, and if so, whether that case was prosecuted.
• The prospective juror's attitudes toward the obligations of the parties to a marriage, including such issues as whether a husband has a right to punish his wife or respond with violence to "provocations."
• If the case involves domestic violence between non-traditional intimate partners, such as gay or lesbian partners, the prospective jurors' personal attitudes or religious beliefs concerning such relationships and the potential for those beliefs to interfere with a fair application of the law to the facts.

10.4 Victim/Witness Testimony

10.4.1 Reasons Underlying Victim Reluctance or Refusal to Testify

1. Victims of domestic violence are often reluctant to testify for the same reasons that victims of all types of violent crime are reluctant. These include:

• A fear of retaliation by the defendant. A study of victims of violent crime (including but not limited to domestic violence) found that 57% feared reprisal from the defendant. Violent crime victims who were threatened by the defendant were twice as likely not to follow through with the prosecution than victims who were not threatened. Davis R. Smith, B., & Henley S., Victim/Witness Intimidation in the Bronx Courts, Victim Services Agency, N.Y. 1990.
• An unwillingness to face the assailant again in the courtroom.
• Fear of economic loss or emotional abandonment if the defendant is jailed or removed from the household.
• A feeling of shame or guilt that perhaps their behavior in some way caused the attack.
• Desire to put the whole incident behind them and hope that the incident of violence is over.
• Denial, ambivalence, withdrawal, and emotional swings which are result of being a victim of severe trauma

2. The reluctance of a victim to testify should not be assumed, however, to derive from the defendant's guilt of the charges against him.

While the victim's reluctance to testify may result from the defendant's conduct or implicit threats, the defendant is still entitled to a presumption of innocence of any criminal charges, and the burden still lies with the petitioner to prove her entitlement to any civil relief such as an order of protection. It is possible for a witness to be reluctant to testify against the alleged abuser for any number of reasons, including the possible falsity of the original charge or claim. The court should not deduce the defendant's guilt or liability from the complaining witness' or petitioner's reluctance or refusal to testify. But the court may consider that reluctance or refusal as a possible indicator of interference with the judicial process, possibly by the defendant or others acting on his behalf. This is particularly true when independent evidence shows that the victim was in fact injured and cannot provide a satisfactory alternative explanation for the injuries. In such situations, the court may take steps to protect the judicial process and ensure that justice is done.

3. Reluctance or refusal to testify due to fear, embarrassment or denial are often heightened for victims of domestic violence by the following common circumstances:

• The defendant may be living with the victim, be familiar with her/his daily routine, and have ongoing access to the victim.
• The victim's past efforts to leave the perpetrator or to seek protection from the justice system may have resulted in further violence. The victim has learned that the perpetrator will follow through with threats of retaliation for the victim's efforts to leave or to seek help from the justice system.
• The perpetrator may be maintaining coercive control over the victim through alternating displays of affection and threats or acts of violence if the victim testifies.
• The defendant may be using homophobia to control the victim, by threatening to “out” the gay or lesbian victim or by implying that the gay or lesbian victim will not receive any help because of his or her sexual orientation. Finley Duthu, Kathleen, Why Doesn’t Anyone Talk About Gay and Lesbian Domestic Violence?, 18 Thomas Jefferson L. Rev. 23-40 (1996) (quoted in Lemon, Domestic Violence Law 196-97 (2001)).
• The victim and defendant may have children together. Since domestic violence is often not considered by civil courts in determining child visitation and custody, the perpetrator may have continuing access to the victim through arrangements for child visitation.
• The victim and/or children may be dependent on the defendant for economic support. Thus, the victim may have conflicting feelings about the possibility that criminal justice intervention may result in incarceration of the defendant and the loss of support.
• The defendant may be dependent on the victim for economic support, thus increasing the likelihood of further acts of intimidation by the defendant.
• The victim's community and family supports, who have provided protection from the abuse in the past, may be threatening to withdraw their support and protection if the victim testifies.
• The victim may believe that the intervention of the criminal justice system will not be effective in stopping the violence or in protecting the victim and children. This belief may be a result of experience where the system did indeed fail to prevent the violence, and/or it may be based on the perpetrator’s ability to convince the victim that nothing will stop him.

4. It is important to distinguish between victims who are reluctant to testify, and those who refuse to testify.

The majority of victims who are initially reluctant to testify will do so if provided with adequate support during the criminal justice process. The judge may not step into the role of prosecutor and attempt to coax the witness into testifying. The court can, however, decrease the victim's reluctance to testify and protect the administration of justice against improper influences by providing the victim with support through victim advocacy services, providing accurate information regarding the criminal court process, protecting the victim through appropriate court orders, and preventing the perpetrator from using further illegal means to continue the coercive control of the victim. What appears to be victim reluctance to testify is more often an indicator of the perpetrator's continuing use of coercive control over the victim than of the victim's inability to follow through with the case. Such forms of protection are authorized under the Victims of Crime Act, 31-26-1 et seq.

10.4.2 Victim Reluctance or Refusal to Testify: Options for the Court

1. Require a victim's presence in court by issuing a subpoena or ordering a victim already in court to return on another date.

Many victims will testify once ordered to do so by the court. Many feel considerable relief at being able to tell the defendant that the decision to testify is out of their hands because they have been ordered to do so by the court. Even victims who are willing to testify should be ordered by the court to do so. This reinforces to the defendant that the court, not the victim, controls the proceedings, and that any attempt to manipulate or intimidate the victim in an effort to avoid criminal prosecution will be unavailing.

In extreme circumstances, such as when great bodily harm to the victim appears likely if the case does not proceed, a district court may even exercise its authority to call the victim as the court's witness. Rule 11-614

2. If the victim appears reluctant to testify, it may be possible to ascertain the reasons underlying the reluctance.

A prosecutor may inquire into the witness' reluctance to testify. The court can ascertain from the victim's answers whether the witness has of her own free will decided not to give evidence, or whether misconduct by the accused or respondent is in fact preventing the testimony. Lines of inquiry that the prosecutor might pursue in this regard could include questions about the alleged abuser's access to the victim or her children or other family members, the victim's financial dependency on the accused abuser, promises or threats made by the accused if the victim gives evidence in the case, and whether the victim would accept the court's offer of protection if she were to provide testimony proving that she is in danger from the accused. Impartiality of the judiciary does not mean that the court must stand silent while the administration of justice is being thwarted by improper influences.

3. If the victim remains reluctant to testify, the court may want to consider continuing the case for a period of hours to permit the victim to obtain information and options/counseling from the victim/witness program or local domestic violence program.

Victim advocates can give accurate information regarding the court process and can assist the victim in setting up a safety plan. This will often remedy reluctance which stems from fear of the defendant, belief that there is no alternative but to return home, or inaccurate information regarding possible outcomes of the criminal court process.

Referring reluctant victim/witnesses to a victim advocate plays a critical role in reducing victim reluctance, and thus reduces the perpetrator's ability to control the victim. Jurisdictions that provide victim advocacy services to domestic violence victims report a dramatic decrease in victim reluctance to testify. In San Francisco, 70% of domestic violence victims who were initially reluctant to proceed with a criminal complaint subsequently became willing to testify after they had spoken with a victim advocate. (Family Violence Project, 1982).

"In several courts, judges report that battered women are more willing to cooperate and testify when they receive information, emotional support, community referrals, and trial preparation from victim advocates..." (See Goolkasian G.A. Confronting Domestic Violence: The Role of Criminal Court Judges, NIJ: Research in Brief U.S., Department of Justice, 1986).

4. Presence of Victim Support Persons in Court

Where the jurisdiction offers a domestic violence victim's advocate program, the victim advocate may accompany the victim to court. Courts should familiarize themselves with the services of victim advocates in their jurisdiction so that those advocates can provide appropriate support for judicial proceedings.

5. Where prosecutors are not present at hearings, the burden of proof will be on the victim and/or the arresting officer. To facilitate the court's fact finding, the following procedures may be helpful:

The court may want to establish procedures for apprising the victim prior to the hearing of the elements of the crimes charged so that the victim can specifically address those elements.

When the victim does not provide a clear chronological rendition of the events that occurred, the court may exercise its authority to ask questions in a manner that gives the victim the time and latitude needed to describe the incidents constituting the alleged crime. In doing so, however, the court must be careful to avoid becoming an advocate for either party.

10.4.3 Testimonial Privileges
Generally, marital privileges are inapplicable to situations where the defendant/spouse has allegedly committed a crime against the victim/spouse. See e.g., §38-6-6; Rule11-505.

10.4.4 Child Testimony in Domestic Violence Cases
See also Chapter 27: Evidence, New Mexico Child Welfare Handbook: A Legal Manual on Child Abuse and Neglect, Institute of Public Law 2000.

1. Assessing whether to allow children's testimony in a domestic violence case

The decision whether to allow children's testimony in domestic violence cases raises several issues. On the one hand, children often are present during the violence, so their testimony may have great probative value. On the other, a child may suffer serious emotional trauma from testifying. Children may be under great pressure from one or both parents to testify or not to testify. They may fear physical retribution by the violent parent if they testify, as well as fear abandonment from the victim parent if they do not testify. They may feel a sense of loyalty to both parents, and may not want to be forced to "take sides."

The decision to present children's testimony in these cases should be made with great care and only after the court has conducted an assessment of the danger to the child if she/he testifies. The court should ensure that appropriate protections are provided for children that testify and that services are available to help them cope with the potential emotional trauma.

2. Determining a child's competency

Rule 11-601 of the New Mexico Rules of Evidence states that "Every person is competent to be a witness except as otherwise provided in these rules."

Children have been accepted as competent witnesses in New Mexico courts for more than 100 years. In Territory v. DeGutman, 8 N.M. 92, 42 P. 68 (1895), the court first considered child competency when a ten-year-old child was declared competent to testify. The trial court should inquire into the "degree of understanding possessed [by the child], and if it then appears that the child has sufficient natural intelligence, and understands the nature and effect of an oath, he [should] be permitted to testify, whatever his age may be."

The rule remains as stated by the DeGutman court. For any witness to be deemed competent to testify, the witness must have each of the following:

• Capacity to observe;
• Sufficient intelligence;
• Adequate memory;
• Ability to communicate;
• Awareness of the difference between the truth and a lie; and
• Appreciation of the obligation to tell the truth in court.

No modern rule defines any particular age as conclusive of competency. See Wigmore, Evidence in Trials at Common Law, 505. In State v. Hunsaker, 693 P.2d 724 (Wash. 1984), a 3-year old child was found competent to testify about what had happened to her when she was age 2. See also:

• State v. Manlove, 79 N.M. 189 (Ct. App. 1968). A 6-year old female victim of sexual assault was permitted to testify. The court stated there is no rule of law setting a birth date for presumed competency and the burden of showing incompetency is on the party asserting it. The court held that "the trial court must determine from inquiries the child's capacities of observation, recollection and communication, and also the child's appreciation or consciousness of a duty to speak the truth."
• State v. Ybarra, 24 N.M. 413 (1918). A child of "tender years" was permitted to testify in a murder case. The court held that although the child stated that he did not understand the nature of an oath, that "is not of itself sufficient ground for his exclusion as a witness, where it clearly appears that the child has sufficient intelligence to understand the nature of an oath and to narrate the facts accurately, and knows that it is wrong to tell an untruth and right to tell the truth, and that if he told an untruth he would be punished, and, from other facts, that he is competent."
• State v. Fairweather, 116 N.M. 456 (1993). "A child witness, or any competent witness for that matter, need not know the consequences of perjurious testimony, or even what the term 'perjury' means; he or she need only know that lying is wrong." Thus even though there may be inconsistencies in a child's account, this does not mean that the child is incompetent to testify.

At any proceeding with a child witness, the trial judge must decide whether the witness is competent to testify. Starting with the threshold assumption that any witness is competent unless shown otherwise, it has been unclear what methods and procedures the court should use for determining testimonial competency when a minor witness's ability is questioned. Some basic rules, however, are applicable to this determination. When competence of a witness to testify is raised before the court, the judge should make a competency determination.

That determination may be made by a voir dire examination of a child or, if raised prior to the child's testimony, may be made based on prior statements made by the child (e.g. review of a safehouse interview). The court may also rely upon extrinsic evidence such as testimony or reports from doctors, psychologists, therapists, evaluators, etc., if determined necessary. See §§14.2.3 and 2 Wigmore 485. The party challenging the child witness's competency has the burden of proof. State v. Manlove, 79 N.M. 189 (Ct. App. 1968). The rules of evidence do not apply to the court's inquiry. The court has broad discretion to admit or exclude the testimony of a child witness and reversal is only appropriate upon a showing of abuse of discretion. State v. Macias, 110 N.M. 246 (Ct. App. 1990).

Decisions from other jurisdictions offer additional guidance on the procedures for examining child witnesses. The examination format should be governed by the needs of the child and lies within the discretion of the trial judge. People v. District Court, 776 P.2d 1083 (Colo. 1989). During the competency evaluation, the court typically does not discuss with the child the facts of the case. State v. Scott, 501 N.W. 2d 608 (Minn. 1993); People v. Trujillo, 923 P.2d 277 (Colo. 1996). The accused need not be present during this voir dire of the child witness. Kentucky v. Stincer, 482 U.S. 730 (1987); see also 18 U.S.C. 3509(c)(5). Courts have been permitted to conduct voir dire of the child with or without the participation of counsel during or before trial. The judge may choose a setting other than the courtroom (such as chambers) for the competency evaluation. Leading questions are not prohibited in the court's evaluation hearing. Burkett v. State, 439 So.2d 737 (Ala. 1983).

3. Court orders to protect child from influence

A court can order no contact with the child by anyone deemed to be influential on the child’s testimony. Furthermore, if the court does not deny contact, it can order the “influencer” not to discuss the case with the child witness. Pursuant to N.M. Rule of Criminal Procedure 5-507, a motion for protective order can be filed with a showing of good cause to protect the child from “the risk of physical harm, intimidation, [and] bribery . . . .” Certainly an inquiry can be made of a child to determine if a party has attempted to influence the child's testimony.

4. Alternative methods of evidence taking

In Maryland v. Craig, 110 S. Ct. 3157, 3169 (1990), the United States Supreme Court held that the confrontation clause of the federal constitution does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witness. In Craig, the defendant was completely deprived of his right to face-to-face confrontation with the child witness as the child testified via television monitor out of the presence of the defendant. The court announced that prior to the admission of such testimony, the trial court must find "that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant."

While there is a specific provision in New Mexico law which allows for a video taped deposition of a child’s testimony, the application of that provision is restricted to testimony by children under the age of 16 who are victims of criminal sexual penetration or contact. See §30-9-17 as amended and Rule 5-504 of the Rules of Criminal Procedure.

Case law has supported the use of video taped depositions under certain conditions:

• State v. Vigil, 103 N.M. 583 (Ct. App. 1985). Use of videotaped deposition did not deny the defendant the right of confrontation.
• State v. Tafoya, 108 N.M. 1 (Ct. App. 1988). Videotaped depositions of victims while defendant was required to remain in a control room instead of the room in which the testimony given was not a violation of confrontation clause and was consistent with ' 30-9-17.

However, in State v. Benny E., 110 N.M. 237 (Ct. App. 1990), the child defendant's confrontation rights were violated where the alleged child victim was permitted to testify at trial in the judge's chambers with only counsel and the judge present and the accused child watched on a video monitor located in another room. This procedure was invalid because the court failed to enter particularized findings of special harm to the victim that were supported by substantial evidence.

5. Other discretionary judicial acts that may contribute to the comfort, support and protection of child witnesses.

New Mexico Rule of Evidence 11-611(C): "Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party or a witness identified with an adverse party, interrogation may be by leading questions." The Advisory Committee's Note to F.R.E. 611(c), which is comparable to New Mexico's Rule of Evidence states:

The rule continues the traditional view that the suggestive powers of the leading question are as a general proposition undesirable. Within this tradition, however, numerous exceptions have achieved recognition: The witness who is hostile, unwilling, or biased; the child witness or the adult with communication problems . . . . The matter clearly falls within the area of control by the judge over the mode and order of interrogation and presentation and accordingly is phrased in words of suggestion rather than command. 56 F.R.D. 183, 275.

New Mexico courts have held that leading questions are often permissible when a witness is immature, timid or frightened, although the words of a prosecutor cannot be substituted for the testimony of the witness. State v. Orona, 92 N.M. 450 (1979). In a child sexual abuse case, where the court drew a stick figure to help the victim testify, the drawing was relevant, and the court's leading questions to the victim tended to clarify the evidence. State v. Benny E., 110 N.M. 237 (Ct. App. 1990).

State v. Marquez, 124 N.M. 409 (App. 1998) discussed the use of "comfort items" during child testimony. In Marquez, the child held a teddy bear while testifying. The court recognized that there is no specific rule that addresses this area and recognized the needs in presenting evidence. A[T]rial courts are allowed latitude in exercising "reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, ...and (3) protect witnesses from harassment or undue embarrassment." Id. at ¶ 5 (internal quotations and citations omitted). The court's procedures will be reviewed for an abuse of discretion. The court balances the prejudicial effect of the "comfort item" against the necessity of the "comfort item" and its effect in calming the child.

6. Assessing the credibility of victim's and/or children's testimony

Expert testimony is not admissible as to credibility. See State v. Alberico, 116 NM 156 (1993). Whether or not the witness is being truthful is for the jury to decide.

10.5 Expert Testimony
For more information, please refer to the Judicial Education Center’s website: http://jec.unm.edu/, where we have included an interactive chart on expert testimony in domestic violence cases in Module 5 of the Domestic Violence Web Course.

10.5.1 Expert Testimony on the Experience of Battered Women
Trial attorneys may sometimes offer testimony concerning the experience of battered women for the purpose of establishing one of the following:

• The specific effects of abuse on battered women;
• That a particular victim is indeed a battered woman, or
• That a particular victim suffers from the collection of specific effects of abuse on battered women collectively known as the "battered women's syndrome."

For further discussion see Douglas, M.A., The Battered Woman Syndrome, in Sonkin, D., ed., Domestic Violence On Trial, Springer, New York, 1986; see also 18 ALR 4th 1153 Admissibility of Expert or Opinion Testimony on Battered Wife or Battered Woman Syndrome.

While such testimony may focus on the victim's behavior, e.g. recanting testimony, minimizing and denying, etc., it is also important for the court and trier of fact to understand the context in which the violence has occurred.

The court should examine the perpetrator's patterns of violence and control of the victim, the perpetrator's belief systems that support the violence, the impact of the violence and abuse on the victim, how the victim has attempted to protect herself and the children from the violence in the past, the reasons the victim stayed in the relationship or returned to it, and the reasonableness of the victim's belief or apprehension that the perpetrator is going to inflict serious bodily harm or death. It is important that the court view the victim's behavior within the context of the impact of the violence on the victim.

For admissibility of expert testimony on battering and its effects in cases where the alleged battered woman is the victim/defendant:

• When offered by the prosecution, see, e.g., State v. Ciskie, 751 P.2d. 1165 (Wa. 1988);
• When offered by the defense, see, e.g., State v. Gallegos, 104 N.M. 247 (Ct. App. 1986); State v. Swavola, 114 N.M. 472 (Ct. App. 1992); State v. Vigil, 110 N.M. 254 (S. Ct. 1990).

10.5.2 Expert Testimony on Culture
In addition to expert testimony on battering and its effects, parties in a domestic violence case may offer testimony on the victim’s or the perpetrator’s culture. For purposes of this discussion, “[c]ulture means the shared experiences or other commonalities of groups of individuals based on factors of identification that have developed in relation to changing social and political contexts, such as race, ethnicity, gender, sexuality, class, disability status, religion, age, military experience, immigration status, nationality, regionality, and language. Culture is multifaceted, often changing, . . . incorporates contradictory elements [and is] based on a person’s unique set of experiences.” Ramos, Cultural Considerations §1.7 at 1-5.

Cultural evidence may be used to explain the victim’s conduct because “‘battering and its effects are experienced differently by different [victims]. For example, a poor Hispanic immigrant woman, a highly educated African-American woman, and elderly white lesbian, and a teenage welfare mother face very different obstacles in dealing with domestic violence.’” Id. §2.19 at 2-17 (quoting the National Association of Women Judges, Expert Testimony in Criminal Cases Involving Battered Women). In addition, culture may also be used to discredit the victim’s testimony, to demonstrate that the defendant did not have the required mental state, to excuse or mitigate guilt at sentencing, or to establish that the defendant’s actions were reasonable. Id. §2.5 at 2-3.

Although cultural information may be invaluable, it is easily (if inadvertently) misused. Courts must be careful not to fall back on cultural stereotypes and generalizations that do not accurately reflect a particular defendant or victim when admitting cultural evidence or when qualifying an expert witness. When deciding whether to admit expert testimony on culture, the court must first determine that all admissibility requirements are satisfied: the evidence must be relevant, its prejudicial effect must not substantially outweigh its probative value, and it must not confuse the issues or mislead the factfinder. N.M. Rules of Evidence 11-402 and 11-403. In addition, the court must be convinced that the witness qualifies as an expert on the relevant culture.

The expert witness should be able to offer “cultural information that informs the factfinder about this individual defendant’s [or victim’s] cultural experience and [that] provides the context within which the factfinder decides the ultimate issue.” Id. §2.18 at 2-15 and 2-16. To ensure that the witness is able to do so, the court should “inquire about the following from a proposed expert (using the example of a [victim or defendant] of Chinese background):” whether “the expert has worked with American-born persons of Chinese ancestry, Chinese immigrants, or first generation Chinese-Americans;” whether the expert has worked with age groups similar to that of the defendant or victim; whether the expert speaks the same language or dialect as the defendant or victim; whether and when the expert has studied or visited in the victim or defendant’s province in China; and whether the expert has any specific information “about the culture of the individual in court,” as identified by that individual. Id. §2.14 at 2-10.

The following cases demonstrate how culture has been used and misused in domestic violence cases:

• For cultural evidence to explain why the victim recanted, see Basu v. Georgia, 492 S.E.2d 329 (Ga. Ct. App. 1997). In Basu, the victim testified “that in her culture, if a husband instructed his wife to deny to non-family members that he hit her, the wife would have to obey.” The judge relied on this cultural information to assess the credibility of the victim’s recantation and the reliability of her earlier, out-of-court statements inculpating her spouse. Ramos, Cultural Considerations §2.34 at 2-42.
• For cultural evidence used to discredit the victim witness, see, e.g., State v. Lee, 494 N.W.2d 475 (Minn. 1992) (a defense expert attempted to show that the defendant’s wife was lying because she did not react the way a Hmong woman would have reacted to being raped by her spouse, that is, she would not have waited a few days to report the rape as this victim did).
• For cultural evidence offered to negate criminal intent, see, e.g., Ramos, Cultural Considerations §2.26 at 2-29 and 2-30, discussing two unpublished cases. In the first, a Jamaican defendant claimed that he did not have the criminal intent to kill his wife because he was acting in accordance with Jamaican witchcraft, which was considered rational in Jamaica. Although the court found the defendant guilty, it used the cultural evidence to reduce the defendant’s sentence on the grounds that the defendant’s delusional beliefs diminished his criminal intent. In the second case, the Ethiopian defendant shot a woman he dated because “he believed she was a ‘bouda,’ a woman through whom an Evil Spirit inflicts pain.” Id. The court admitted expert testimony concerning the Ethiopian belief in boudas because it might explain the defendant’s state of mind. The defendant intended the cultural information to show that he behaved rationally under his cultural norms. But, as the author points out, “beliefs that are rational in a defendant’s culture do not necessarily negate the formation of mens rea. In fact, they might strengthen the argument that the defendant was very clear about his intent. A belief that someone is a bouda does not mean that bouda has to be shot.” Id.
• For cultural evidence offered to excuse or mitigate culpability, see, e.g., People v. Natale, 199 Cal. App.2d 153 (1962) (refusing provocation defense based on Italian American standard in a case where the defendant murdered his wife and daughter); State v. Girmay, 652 A.2d 150 (N.H. 1994) (excluding evidence of defendant’s life in war-torn Ethiopia and of Ethiopian social customs in trial for murder because irrelevant to prove the defendant’s mental state).

10.6 Admissibility of Character and Conduct Evidence
Generally, the existence of similar acts of conduct is admissible to show intent, identity, lack of accident, motive, knowledge, plan or preparation, or good faith belief in consent. See, e.g., New Mexico Rules of Evidence 11-404(b); State v. Jones, 120 N.M. 185 (Ct. App. 1995); State v. Peters, 123 N. M. 446 (S. Ct. 1997).

The court must weigh the probative value of the evidence against the danger of undue prejudice in deciding admissibility. See, e.g., New Mexico Rules of Evidence 11-403; State v. Woodward, 121 N.M. 1 (S. Ct. 1995); State v. Jones, 120 N.M. 185 (Ct. App.1995).

For prior or subsequent bad acts toward the same victim, see State v. Woodward, 121 N.M. 1 (1995). Such evidence has been allowed as proof of defendant's:

• Mental element or intent
  See, e.g., U.S. v. Joe, 8 F.3d. 1488 (10th Cir. 1993); U.S. v. Russell, 971 F.2d 1098 (9th Cir. 1992); Virgin Islands v. Harris, 938 F.2d 401 (3rd Cir. 1991); People v. Zack, 184 Cal. App. 3d 409, 229 Cal. Rptr. 317(Ca. 1986).
• Motive, to rebut accident or self-defense
  See e.g., People v. Zack, (Ca., 1986) 184 Cal. App. 3d 409, 229 Cal. Rptr. 317 (Ca. 1986); People v. Daniels, 16 Cal. App. 3d 36, 93 Cal. Rptr. 628 (1971).
• Identity
  See e.g., State v. Woodward, 121 N.M. 1 (1995), People v. Zack, (Ca., 1986) 184 Cal. App. 3d 409, 229 Cal. Rptr. 317; People v. Daniels, 16 Cal. App. 3d 36, 93 Cal. Rptr. 628 (1971).
• Continuous course of conduct
  See e.g., U.S. v. Hinton, 31 F.3d 817 (9th Cir. 1994).

Evidence of defendant's prior or subsequent bad acts toward a different victim has been admitted:

• To prove motive to rebut defenses of accident or heat of passion.
  See, e.g., People v. Bufarole, 193 Cal. App.2d. 551 (Ca. 1961).
• To prove an element of the act or behavior pattern to show identity.
  See, e.g., State v. Peters, 123 N. M. 446 (1997); People v. Archard, 477 P.2d. 421 (Ca. 1970).
• To support or attack the credibility of a witness.
  See, e.g., 2 Jefferson, California Evidence Benchguide at 1213.
• To establish intent.
  See, e.g., State v. Falby, 444 A.2d 213 (Conn. 1982).

For admissibility into evidence of prior acts of violence by a domestic violence defendant, see State v. Woodward, 121 N.M. 1 (1995); State v. Hernandez, 115 N.M. 6 (1993); State v. Niewiadowski, 120 N. M. 361 (Ct. App. 1995); State v. Swavola, 114 N.M. 472 (Ct. App. 1992); State v. Gattis, 105 N.M. 194 (Ct. App. 1986); U.S. v. Hinton, 31 F.3d 817 (9th Cir. 1994); U.S. v. Russell, 971 F.2d 1098 (4th Cir. 1992); Virgin Islands v. Harris, 938 F.2d. 401 (3rd Cir. 1991; U.S. v. Hogue, 827 F.2d 660 (10th Cir. 1987); U.S. v. Naranjo, 710 F.2d. 1465 (10th Cir. 1983); People v. Zack, 184 Cal.App 3d 409 (1986).

After an assertion of a self-defense plea, see, e.g., State v. Swavola, 114 N.M. 472 (Ct. App. 1992); State v. Reneau, 111 N.M. 217 (Ct. App. 1990); State v. Bazan, 90 N.M. 209 (Ct. App. 1977); Engstrom v. Superior Court, 20 Cal. App.3d 240 (1971); People v. Worthy, 109 Cal. App. 3d 514 (1980); Rushin v. State, 348 S.E. 2d 910 (Ga. 1986) (irrelevant where no defense of justification or self-defense); Pitcock v. State, 420 SW. 2d 719 (Tx. 1967) (irrelevant where defendant knows of no violence by victim).

For admissibility of prior conduct of victim, see, e.g., New Mexico Rules of Evidence 11-404(a) & -608; State v. Chamberlain, 112 N.M. 723 (1991); State v. Vigil, 110 N. M. 254 (1990); State v. Bazan, 90 N.M. 209 (Ct. App. 1977); People vs. Harris, 767 P.2d 619 (Ca. 1989); Rushin v. State, 348 S.E.2d 910 (Ga. 1986) (irrelevant where no justification or self-defense issue); Pitcock v. State, 420 S.W.2d 719 (Tx. 1967) (irrelevant where defendant did not know of any prior violence by victim).

When self-defense is in issue, see, e.g., New Mexico Rules of Evidence 11-404(a); State v. Vigil, 110 N. M. 254 (1990); State v. Swavola, 114 N.M. 472 (Ct. App. 1992).

When credibility of the witness is in issue, see New Mexico Rules of Evidence 11-608 and 11-404; State v. Bazan, 90 N.M. 209 (Ct. App. 1977).

For admissibility of evidence of prior abuse to victim from previous partners, see e. g., New Mexico Rules of Evidence 11-413; State v. Peters, 123 N. M. 446 (1997); State v. Allen, 91 N.M. 759 (Ct. App. 1978); U. S. v. Russell, 971 F.2d 1098 (4th Cir. 1992); U.S. v. Hogue, 827 F.2d 660 (10th Cir. 1987).

10.7 The Hearsay Rule, Exceptions and Related Issues

Interactive Chart: Admissibility of Hearsay Evidence in Domestic Violence Cases

As discussed throughout this chapter, alleged victims of domestic violence may not testify at trial as the prosecution expects. Consequently, prosecutors may attempt to prove their case by introducing other evidence of the defendant's assault on the victim. This evidence often takes the form of out-of-court statements, either written or oral, made by the victim, responding police officers, or other witnesses. These typically are called "hearsay" statements.

Although the general rule is that hearsay is not admissible as evidence, this rule has numerous exceptions that allow hearsay statements to be admitted if they were made under circumstances that ensure their reliability. Hearsay is considered to be reliable if it falls into one of the “firmly rooted” hearsay exceptions (which are contained in our rules of evidence) or if the evidence has “particularized guarantees of trustworthiness.” In addition, not all out-of-court statements are even defined as hearsay. This section covers only those hearsay exceptions that are especially relevant to domestic violence, such as excited utterances, present sense impressions, and statements made for purposes of medical diagnosis or treatment.

The hearsay rules are found in Rules 11-801 through 11-806 of the New Mexico Rules of Evidence. Note that the rules use the term "declarant" to mean the person who makes a statement that later is offered as evidence in a case.

10.7.1 Constitutional Considerations
Under the Confrontation Clauses of the 6th Amendment to the U.S. Constitution (applied to states through the 14th Amendment) and Article II, Section 14 of the New Mexico Constitution, criminal defendants have a right to cross-examine witnesses against them. This right may be compromised when a hearsay statement is admitted into evidence without the declarant being available for cross-examination. Consequently, the U.S. Supreme Court has ruled that when hearsay evidence offered against a criminal defendant is testimonial and the declarant is unavailable to testify, the federal Confrontation Clause prohibits admission of the evidence unless the defendant had a prior opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36 (2004).

The Supreme Court stated that the “core class” of testimonial statements requiring the opportunity for cross-examination may include ex parte in-court testimony (or its functional equivalent) and extra-judicial statements contained in formalized testimonial materials. Examples may include:

• Affidavits.
• Depositions.
• Statements made while in police custody.
• Statements made in response to police interrogation.
• Confessions.
• Prior testimony at a preliminary hearing, before a grand jury or during a former trial that the defendant was unable to cross-examine.
• Similar pretrial statements that declarants would reasonably expect to be used in a prosecution.
• Statements made under circumstances that would lead an objective witness to reasonably believe that the statements would be available for use at a later trial.

Since Crawford, New Mexico’s appellate courts have held hearsay evidence to be testimonial under the Crawford decision in three cases. See State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309; State v. Johnson, 2004-NMSC-029, 136 N.M. 348; State v. Duarte, 2004-NMCA-117, 136 N.M. 404. In all three cases, the court held that admission of an unavailable accomplice’s statement violated the defendant’s confrontation rights because the statements were made while in police custody. According to the court, statements made during a custodial interview fall “squarely within the class of ‘testimonial’ evidence” described by Crawford. Johnson¸ 2004-NMSC-029, ¶7; Alvarez-Lopez, 2004-NMSC-030, ¶24; Duarte, 2004-NMCA-117, ¶13. Because the defendants in these three cases had no opportunity to cross-examine the accomplice, admission of the testimonial hearsay statement violated each defendant’s right to confrontation, even though the statements otherwise fell into the statement-against-penal-interest exception to the hearsay rule.

Nontestimonial Statements
In Crawford, the United States Supreme Court also identified types of evidence that are ordinarily admissible under exceptions to the hearsay rule that are not testimonial, and therefore admissible against defendants in criminal cases, including:

• Business records.
• Statements made in furtherance of a criminal conspiracy.

The New Mexico Supreme Court recently added blood alcohol reports to this list of nontestimonial hearsay evidence. In State v. Dedman, 2004-NMSC-037, ¶30, the Court determined that a blood alcohol report is not testimonial evidence because it is “generated by [State Laboratory Division] personnel, not law enforcement, and the report is not investigative or prosecutorial.” The Court further explained that even though “the report is prepared for trial, the process is routine, non-adversarial, and made to ensure an accurate measurement.” By characterizing the blood alcohol report as nontestimonial, the Crawford requirement of prior cross-examination did not apply and the report could be admitted under the public record exception to the hearsay rule.

To summarize, before admitting hearsay evidence, New Mexico courts must now consider whether the hearsay in question is a “testimonial statement.” If the hearsay is testimonial and the proponent has demonstrated that the witness is unavailable to testify, the court cannot admit the hearsay evidence unless the defendant had an opportunity to cross-examine the declarant before trial, even if the hearsay falls into one of the established hearsay exceptions.

10.7.2 Excited Utterances
An excited utterance is a statement relating to a startling event or condition made while under the stress and excitement of the event or condition. New Mexico Rules of Evidence 11-803(B). According to State v. Maestas, for a statement to be admissible as an excited utterance,

[t]here must be some shock, startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting. The utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. [And,] the utterance must relate to the circumstances of the occurrence preceding it.

Maestas, 92 N.M. 135, 584 P.2d 182 (Ct. App. 1978) (internal quotations and citations omitted). Under this approach, there is no fixed amount of time in which the statement must have been made. As a result, the Court in Maestas admitted statements the victim made to her mother shortly after the beating and while still under the stress of excitement from the beating, but did not admit statements the victim made later that evening and the next morning.

Similarly, the Court of Appeals has held that there is no:

bright-line rule that every statement made in response to a question, whether by police or others, is not an excited utterance. Rather, we follow our general approach to excited utterances, which requires the trial court to consider the particular circumstances of each case to determine whether the statement was the result of reflective thought or whether it was rather a spontaneous reaction to the exciting event.

State v. Bonham, 1998-NMCA-178, 126 N.M. 382, 970 P.2d 154. The Court in Bonham held that the victim’s statements--made to police within moments of being attacked, while still bleeding, in pain, and in mild shock, and while the victim was still within the proximity of his attacker--were admissible as excited utterances, but that statements victim made hours later, while in the hospital, were not so admissible. See also State v. Hernandez, 1999-NMCA-105, 127 N.M. 769, 987 P.2d 1156.

According to Rule 11-803, excited utterances are “not excluded by the hearsay rule, even though the declarant is unavailable as a witness.” However, in State v. Lopez, 1996-NMCA-101, ¶21, 122 N.M. 459, the Court of Appeals held that the Confrontation Clause of the New Mexico Constitution, which guarantees criminal defendants the right to confront the witnesses against them, requires the state to show that the declarant is unavailable before an excited utterance may be admitted into evidence if the declarant is not testifying at trial. According to the Court, requiring a showing of unavailability “increases the apparent legitimacy of the trial process” and prevents prosecutors from “distort[ing] the search for the truth as a matter of tactical advantage, such as by substituting a high-performance witness to the declarant's statement for a low-performance declarant.” Lopez, 1996-NMCA-101, ¶19. (Although the Court’s ruling requiring a showing of unavailability applies only to excited utterances, its rationale may apply to other hearsay exceptions, such as present sense impressions and statements made for purposes of medical diagnosis or treatment, which are discussed below.)

Excited utterances are unlikely to raise the confrontation clause problems presented in Crawford v. Washington, 541 U.S. 36 (2004), because an excited utterance is unlikely to be considered a “testimonial statement.” See, e.g., Hammon v. Indiana, 809 N.E.2d 945 (Ind. Ct. App. 2004)(holding that a domestic violence victim’s excited utterance, which was made to a police officer at the scene of the crime, was not testimonial); State v. Moscat, 777 N.Y.S.2d 875 (N.Y. Crim. Ct. 2004) (holding that a 911 call in a domestic violence case is not testimonial and is therefore admissible as an excited utterance even without present or prior opportunity for cross-examination); State v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. 2004) (holding that a victim’s spontaneous statement made to police immediately after being rescued is part of the criminal incident, rather than part of the prosecution that follows; as such, the statement is not testimonial and the Confrontation Clause is not implicated).

10.7.3 Present Sense Impression
A present sense impression is a “statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” New Mexico Rules of Evidence 11-803(A).

To be admissible as a present sense impression, “the statement must be made while the event or condition is being perceived by the declarant or immediately thereafter. The fact that the event occurred contemporaneously or shortly thereafter is a factor to be considered in determining the trustworthiness of the statement.” State v. Perry, 95 N.M. 179, 619 P.2d 855 (Ct. App. 1980). “[T]he admissibility of the statement will depend upon the trial court's view of the type of case, the availability of other evidence, the verifying details of the statement and the setting in which the statement was made. In addition, the statement must be one which describes or explains the event or condition. This requirement must not be viewed so narrowly as to exclude evidence which would aid the jury. . . . Relevancy and contemporaneousness are the keys of admissibility.” State v. Perry, 95 N.M. 179, 619 P.2d 855 (Ct. App. 1980).

For example, the victim's words of greeting to the defendant, which were uttered just before the defendant shot the victim, were admissible under the present sense impression exception in order to identify defendant as the shooter. State v. Salgado, 1999-NMSC-008, 126 N.M. 691, 974 P.2d 661. In another case, State v. Peters, 1997-NMCA-084, ¶32, 123 N.M. 446, 944 P.2d 896, the Court of Appeals summarily concluded that the testimony of a police officer concerning a victim’s statement made on the night she was beaten, raped and robbed, while she was crying and bleeding, was admissible as a present sense impression.

According to Rule 11-803, present sense impressions “are not excluded by the hearsay rule, even though the declarant is available as a witness.” But see §10.7.2 above for a discussion of State v. Lopez, 1996-NMCA-101, ¶21, 122 N.M. 459, which held that the Confrontation Clause requires proof of unavailability before an excited utterance may be admitted into evidence.
For purposes of determining whether present sense impressions are subject to the Confrontation Clause requirements of Crawford v. Washington, 541 U.S. 36 (2004), it is likely that they will be deemed nontestimonial for the same reasons that excited utterances have been deemed nontestimonial: the statements are made during or immediately after the event or condition being described and before there is time for reflection or fabrication. More importantly, these statements can be seen “as part of the criminal incident itself, rather than as part of the prosecution that follows.” State v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. May 18, 2004) (discussing excited utterances). For example, in United States v. Griggs, the federal District Court for the Southern District of New York held that an eyewitness’s statement (“Gun! Gun! He’s got a gun!”), shouted to a police officer while gesturing at the defendant, was not testimonial because it was not made in response to structured questioning “in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings.” United States v. Griggs, 65 Fed. R. Evid. Serv. (Callaghan) 1109; 2004 U.S. Dist. LEXIS 23695 (S.D.N.Y. Nov. 23, 2004) (internal quotations and citations omitted).

On the other hand, the Court in People v. Dobbin, N.Y. slip op. 24534 (Sup. Ct. Dec. 22, 2004), held that a declarant’s statement during a 911 call was testimonial because a reasonable person would expect that a report of a robbery to the police would be used in a criminal prosecution. The court acknowledged that the statement was a present sense impression, but because of its accusatory nature and the reasonable expectation that such a statement would be used in a trial, the statement was considered testimonial. These two cases demonstrate that the facts of each case will determine whether a present sense impression will be considered testimonial hearsay.

10.7.4 Statements Made for the Purpose of Medical Diagnosis or Treatment
Statements made for purposes of medical diagnosis or treatment are admissible if they describe “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” New Mexico Rules of Evidence 11-803(D). Admissibility of this type of statement does not depend on the availability or unavailability of the declarant. New Mexico Rules of Evidence 11-803.

In State v. Woodward, 121 N.M. 1, 908 P.2d 231 (1995), a psychologist was permitted to testify as to the victim’s identification of her spouse as the perpetrator of domestic abuse because “disclosure of the perpetrator is essential to diagnosis and treatment of situational depression” in cases involving domestic abuse. Moreover, the victim’s statements to the psychologist were admissible because she “made the statements for the purpose of obtaining medical treatment, and because [the psychologist] reasonably relied on these statements in diagnosing and treating” the victim. Woodward, 121 N.M. 1, 908 P.2d 231 (1995).

In State v. Altgilbers, 109 N.M. 453, 786 P.2d 680 (Ct. App. 1989), the defendant was charged with sexually abusing two of his daughters. Relying on this exception to the hearsay rule, the court permitted a pediatrician and a psychologist to testify that the two children had identified defendant as their abuser, noting that "in dealing with child sexual abuse . . . disclosure of the perpetrator may be essential to diagnosis and treatment." Altgilbers, 109 N.M. at 459, 786 P.2d at 686.

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