What a State’s expert can tell a jury about domestic violence

Margaret Bassett

Licensed Professional Counselor in the District Attorney’s Office in Travis County

In Travis County, an on-staff licensed professional counselor with 25 years of experience has been asked to testify as an expert in DV cases.

In early 2012, I was asked to testify as an expert witness in our office’s case against Vondrick Ware. Mr. Ware was charged with the offense of strangulation and continuous violence against the family after a fight with his girlfriend, whom I’ll call Samantha.
    She and Ware had been together for about a year and a half and had come to Texas from another state on one of Samantha’s business trips (they stayed in a local hotel). During an argument, Samantha asked Ware to leave and return to their home state, and he responded by punching her several times in the face, head, and arm. When she screamed for help, Ware grabbed her by the neck with both hands and strangled her—Samantha couldn’t scream or breathe. She doesn’t remember blacking out, but she wasn’t far from it.
    Over and over Ware told Samantha that she could never leave him, but he eventually left the hotel room they were sharing and got another room. The next day, Ware returned to Samantha’s room and began banging on the door. She opened the door and Ware punched her in the face, yelling, cursing, and threatening that she could never leave him. He eventually left, but he continued to text her repeatedly. Samantha called a friend to tell her what had happened, and that friend called the police. Samantha was cooperative with the peace officers and prosecutors, even when Ware’s mother began calling her, asking her to have mercy on her son and drop criminal charges against him. (Samantha saved those voicemail messages, enabling us to contradict Ware’s claim that his mother had never called her.)
    At trial, the prosecution called two expert witnesses to testify: me, as an expert in intimate partner violence and an EMS worker to testify as an expert in strangulation. The jurors indicated that the connections established by both of us were instrumental in validating other evidence and that our testimony eliminated any reservations they had. The jury found the defendant guilty of family violence with strangulation and sentenced him to six and a half years in prison.

Admitting expert testimony
Expert testimony is admissible on a subject “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence.”1 Essentially the prosecutor must establish that the expert witness’s testimony will assist the trier of fact; that the expert is qualified on the basis of “knowledge, skill, training, experience, or education” as required by Rule 702; and that the expert meets the reliability requirements of Daubert2 and Kelly.3
    I have been able to testify as an expert witness in cases involving intimate partner violence based on my education, training, skill, and experience. (Most of the times I have testified, it has been for cases that I was not a part of—I had no prior knowledge of the case before I testified other than what the prosecutor shared with me.) I have a master’s degree in education with an emphasis on counseling. I am a licensed professional counselor and also hold a license to supervise counseling interns. I have worked primarily with victims of intimate partner violence and sexual assault for more than 25 years. Prior to becoming an adjunct professor at the University of Texas at Austin, I was a guest lecturer for three years. As an adjunct professor for five years at UT, I have taught classes covering Contemporary Issues in Domestic Violence and Public Policy as it relates social work. Finally, I have presented at various conferences on the topic of intimate partner violence. In my current position at the Travis County District Attorney’s Office, I work specifically with victims of intimate partner felony crimes and actively participate in the Family Violence Protection Team.

Myths and ­misconceptions
Prosecutors in domestic violence trials don’t always call an expert witness to testify on the dynamics of an abusive relationship, but Travis County has found that it helps immensely in dismantling the myths and misconceptions a jury may have regarding a victim’s behavior after an abusive episode. Any misconceptions or biases the jury might have about intimate partner violence could impact their perception of the victim’s credibility and minimize the seriousness of the violence; the jury could end up focusing on the victim’s behavior out of context, which could impact jurors’ ability to evaluate the evidence appropriately.
    As an expert witness, I can talk about common myths and misconceptions that people have about domestic violence, as well as educate the jury on the impact domestic violence has on its victims in the appropriate context. This education allows jurors to overcome any biases they may have, as well as create an understanding regarding a victim’s response to the violence.
    In my testimony in the Ware case, I talked about some common myths and misconceptions that the general public may hold, and I explained what’s actually true. For example, one common perception is that that victims are helpless and unable to make decisions for themselves. On the contrary, victims are usually really active in their relationships and work very hard to keep themselves safe. Victims have learned that physical violence can escalate when the batterer perceives a loss of control, and batterers need contact with the victim to maintain control. Completely cutting off contact with a batterer increases the likelihood that the batterer will escalate his attempts to make contact with the victim, so a victim will often maintain some contact with the batterer to pre-emptively de-escalate the immediate situation. Explaining this dynamic helped the jury better understand why Samantha continued engaging in contact with the batterer and in fact agreed to marry him via text. The number of text messages from Ware and their tone changed at that point, providing some relief from the onslaught.
    Another important myth I discussed was that leaving an abusive relationship means the abuse will end. What victims of intimate partner violence know is that leaving or taking steps toward leaving can be the most dangerous and life-threatening times for them. In an abusive relationship, the batter establishes a coercive pattern of power and control by minimizing and denying the abuse and belittling, bullying, and manipulating the victim. A batterer must have power over and control of his victim, and he can achieve and maintain this power only if he has contact with her. If the victim takes steps to reclaim her power and set boundaries, the batterer must re-assert himself. Situations escalate to physical violence to reinforce the control and to emphasize who is in charge. 
    Another misconception I addressed was that if someone is abused in a relationship, she should just leave. As discussed above, that can be dangerous. It is also true that the victim may still have feelings for the batterer. Anyone who has had to end a romantic relationship can understand how difficult that can be—a person can know that a relationship needs to end but still love the other person. Victims will frequently say that they still love the batterer, but they just are no longer “in love” with him. It is also important to remember that the batterer has a wealth of knowledge about the victim (her routines, work, schedule, friends, family), all of which can be used to manipulate and control her.
    In the Ware trial, it was helpful for me to address why someone who has been violently abused may allow that abuser to return to the home (hotel), may agree to get married, or may not immediately call the police after an attack. Again, putting behavior in the context of an abusive relationship, I was able to testify about the safety concerns that victims struggle with that others may not know about and how that can lead us to misjudge victims’ behavior. I could also discuss risk assessment, what to be aware of if a situation is escalating, and how to put a batterer’s behavior into the context of increased potential for lethality toward the victim.
    It is not uncommon for batterers to talk about needing help for mental health issues such as depression, substance abuse, or anger. An example I used in this case was when a batterer may express feeling suicidal. Normally if someone expresses suicidal ideation, it is a cry for help. However, in the context of an abuser, one must always consider the increased potential for homicide. This sort of relationship is about coercive power and control, and a batterer will not choose to end his life without also considering ending the life of his partner.

Conclusion
For those offices without an expert on staff, I recommend finding one at the local domestic violence or sexual assault resource center or shelter. Debunking jurors’ misconceptions about why victims and abusers behave the way they do is worth the effort in calling an expert witness to the stand.

Editor’s note: A training conference, “Establishing Expertise as an Ethical Expert Witness,” will be offered in Austin May 20–22, 2013, as a collaboration between the National Center on Domestic and Sexual Violence, the University of Texas at Austin’s School of Law and School of Social Work, and the Institute on Domestic Violence & Sexual Assault. Scholarships for the tuition, fees, and hotel lodging are available; check out our website for details. (Go into the journal archive under this issue’s stories to find a Word document of additional information.)

Endnotes

1 Texas Rule of Evidence 702.
2 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
3 Kelly v. State, 824 S.W.3d 568, 573 (Tex. Crim. App. 1992).