By Rebekah Saunders
Assistant Criminal District Attorney in Galveston County
When you prosecute domestic violence cases, it doesn’t take long before the common is- sues become glaringly obvious: a recanting or uncooperative victim, for example, or the defendant’s claim that he acted in self- defense against an aggressive complainant.
Having handled thousands of cases with victims of domestic violence during my time as a prosecutor, I now have an expectation when re- viewing such files. The first thing I do is deter- mine what the difficulty will be in that particular case. We should expect that there will be an issue with every one. Once you determine the issue, consider the facts that hurt the case. We can then use those “weaknesses” to argue why extraneous evidence should be admitted in the case-in-chief. In fact, extraneous acts can often explain a case’s weaknesses to a judge or jury.
The State’s argument for introducing extraneous evidence will likely fall into one of these two categories:
• explaining the victim’s behavior: not appearing for trial, recanting, minimizing the offense, staying in the relationship, or delayed reporting of the crime; or
• rebutting defensive theories: the victim’s motivation for fabricating the offense (for exam- ple, she was jealous her husband left her for an- other woman) or that the victim was the primary aggressor (that is, the defendant acted in self-defense).
The defense often shows its cards in the early stages of case development, so take note of these discussions in initial court settings to prepare for the defensive trial theory. Then use the extrane- ous acts to refute that theme.
What is 38.371?
Effective September 1, 2015, Code of Criminal Procedure Art. 38.371 allows testimony or evidence of extraneous acts regarding the defendant and victim to be introduced in a trial of domestic violence offenses. In 2019, the Texas Legislature expanded the class of eligible offenses to any involving domestic or dating violence. Subject to the Texas Rules of Evidence, each party may introduce evidence to determine if the defendant committed the offense charged, “including testimony or evidence regarding the nature of the relationship between the actor and alleged victim.”1
Art. 38.371 has expanded the scope of admissible evidence by allowing context about the nature of the relationship between the victim and abuser to be admitted during the guilt-innocence phase of trial, instead of merely offering evidence isolated to the date of offense. However, because either side may offer the extraneous evidence, prosecutors also must be prepared for the defense to introduce evidence against the victim under Art. 38.371.
Pre-trial or during trial?
When should a prosecutor ask the court to allow her to introduce the extraneous offense evidence: in a pre-trial hearing or during the trial itself? Naturally, my answer is, “It depends.” I’ve done it both pre-trial and during trial, and I usually base my decision on how integral the extraneous evidence is to the case. The volume or complexity of the extraneous evidence, whether through witness testimony or exhibits, may also determine when to request its admission.
If the extraneous evidence is more general in nature—the existence of an on-again, off-again relationship; history of cheating; or reasons why the couple separated—those issues can usually be raised with the judge at the beginning of trial or during the trial itself based on the line of questioning and cross-examination. Raise this re- quest outside of the jury’s presence. The judge may rule immediately or may wait to hear opening statements or witness testimony before making a ruling.
If I feel like the case-in-chief may be in serious jeopardy without the admission of the 38.371 evidence, I ask for a hearing and ruling pre-trial. I had a particularly difficult case where the defendant had two charges of strangulation and two charges of aggravated assault with a deadly weapon, which he committed against his step- daughter and wife. In that case, I requested a pre-trial hearing on the extraneous acts I wanted to introduce. At the hearing, the victim testified about the defendant’s prior acts, and I admitted the exhibits I intended to introduce (prior 911 calls, photographs, voicemail recordings the defendant left, etc.). I wanted the pre-trial ruling so that I could properly advise my witness which specific acts she would be allowed to discuss during the jury trial and so that I could prepare numerous exhibits. Additionally, this particular case was the first time a motion to introduce extraneous acts under Art. 38.371 had been filed be- fore that judge, so I wanted to have time to brief her on the issue.
If the judge makes a pre-trial ruling to exclude the extraneous offense evidence, don’t give up. Listen closely to the defense’s opening statement to find its theory of the case. “Extraneous- offense evidence, under Rule 404( b), is admissible to rebut a defensive theory raised in an opening statement or raised by the State’s witnesses during cross-examination.”2 Most of the time, the defense will argue the victim is a liar (if she’s cooperating with the State) or that she was the initial aggressor (self-defense theory), at which time prosecutors should re-urge the extraneous offense evidence. Many times, judges will feel more comfortable admitting extraneous evidence after they’ve heard the defense drag a victim or witness through the mud.
What extraneous acts should I admit?
Do not throw in the kitchen sink! Be very intentional about which extraneous acts you intend to introduce. A judge is more likely to deny the re- quest if the prosecutor raises every bad act the defendant ever committed against the victim— that makes it look like the real motive is to show character conformity evidence, which is prohibited by the Rules of Evidence. Instead, if there is a long history of violence, select extraneous offenses that are similar to the facts in the charged offense, have independent evidence to support the act (lay witnesses, photographs, recordings, etc.), or explain the victim’s behavior. Even if the parties have a long history of violence, the prosecutor should show the judge that the State will be very selective in introducing the extraneous conduct to comply with Art. 38.371’s “nature of the relationship” evidence and Rules of Evidence 404(b)(2) and 403.
Another option is to be generic with the in- formation you introduce. If you want to elicit the fact that the couple has repeatedly separated when the defendant becomes violent from intoxication, or that the victim stayed in the marriage because she and the defendant have children together, tell the judge that you intend to introduce general information to explain to the jury the nature of their relationship.
“Nature of the relationship”
Judges are very apprehensive about being over- turned on appeal. In my experience, they have been reluctant to allow extraneous evidence into trial, given the sparse caselaw on Art. 38.371. In 2017, a Texas appeals court issued a reported opinion on Art. 38.371 and its application in a domestic violence trial to rebut defensive theories of victim fabrication, recantation, or failure to appear for trial.3
One way to make hesitant judges comfort- able with the “nature of the relationship” concept in Art. 38.371 is to explain that the principle is al- ready well-established in other statutes, including:
• Art. 38.36: In murder prosecutions, admission of “testimony as to all relevant facts and circumstances surrounding … the previous relationship between the accused and de- ceased.”4
• Art. 38.37: In the prosecution of certain offenses committed against a child, “evidence of other crimes, wrongs, or acts … for its bearing on relevant matters, including … the previous and subsequent relationship between the defendant and the child.”5
• Art. 38.46: In prosecuting stalking offenses, “testimony as to … the facts and circumstances surrounding any existing or previous relation- ship between the actors and the alleged victim.”6
• Art. 38.48: In prosecuting certain witness- tampering offenses, testimony or other evidence relating to “the nature of the relationship be- tween the actor and the witness or prospective witness.”7
Rules of Evidence 404 and 403 analysis
Art. 38.371 is still subject to the Texas Rules of Evidence, so most of the defense’s objections (aside from hearsay, relevance, or the Sixth Amendment’s Confrontation Clause) will focus on Rules 404(b) and 403, specifically:
1) the extraneous evidence is bad character evidence to show the defendant acted in conformity with the prior bad behavior,8 and
2) the probative value is substantially out-weighed by the danger of unfair prejudice.9
Of course, the State may not offer evidence of prior bad acts for the sole purpose of showing the defendant acted in conformity with his criminal propensities and therefore committed the charged offense against the victim.10 However, because Rule 404(b)(2) does not contain an exhaustive list of exceptions, it is arguable that evidence regarding the nature of the relationship, although not explicitly listed, could be another exception under 404( b)(2). The permissible purpose of admitting the extraneous offense evidence is to illustrate the nature of the relationship between the defendant and victim.
When the defense argues that the evidence is unfairly prejudicial, the key is to argue how specific facts from the case make the extraneous acts probative and not substantially outweighed by unfair prejudice. Examples might include:
1) the proximity of time between the extraneous offenses the prosecution is trying to admit with the charged offense,
2) similarities of the offenses,
3) comparing the demeanor of the victim or defendant in the charged offense with the extraneous act,
4) the need to introduce the prior offense to give context to the victim’s current behavior in trial (minimization, recantation, failing to appear, etc.), or
5) rebutting defensive theories.
Additional witnesses and exhibits
If the victim is uncooperative, look for other tools to support the case through extraneous offense evidence. Helpful witnesses may include a victim-witness coordinator, investigator, prior responding officers, domestic violence expert, or the victim’s family and friends. Be creative about finding helpful exhibits on the extraneous acts outside of those collected in investigating the charged case, such as photographs of previous and subsequent injuries, calls to police for service, jail calls or mail, or medical records. Do not give up on the case merely because the victim is uncooperative or missing altogether. Get creative to account for the missing links in the case!
We can’t win them all, but don’t give up the fight just because a case has one of “those” DV issues. Every domestic violence case has one! Plus, it feels really good when you overcome the obstacles and see justice done in one of “those” cases. Keep calm and prosecute on.
1 Tex. Code Crim. Proc. Art. 38.371(b).
2 Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
3 Gonzalez v. State, 541 S.W.3d 306 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
4 Tex. Code Crim. Proc. Art. 38.36(a).
6 Tex. Code Crim. Proc. Art. 38.46.
7 Tex. Code Crim. Proc. Art. 38.48.
8 Tex. Rules of Evid. 404(b).
9 Tex. Rules of Evid.403.
10 Tex. Rules of Evid. 404; see also Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006).