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State v. Hendricks11/16/2001
divism problem, I doubt that jurors' deliberation is affected by lack of evidence about prior incidents. It is no accident that advocates for battered women are particularly seeking a broad policy of admissibility in this area. See L. De Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale J.L. & Feminism 359 (1996); Comment, Beating Again and Again and Again: Why Washington Needs a New Rule of Evidence Admitting Prior Acts of Domestic Violence, 75 Wash. L. Rev. 973 (2000); Comment, The Search for the Truth: Admitting Evidence of Prior Abuse in Cases of Domestic Violence, 20 U. Haw. L. Rev. 221 (1998).
Finally, admission here does not seriously raise the risk of abuses underlying Rule 404(a). The risk is that the jury will give undue weight to evidence of prior criminal conduct and convict on the offense before them because the defendant is shown to be the type of person who would commit the crime, or to punish for the prior, uncharged, behavior. See 22 Wright & Graham, supra, § 5239, at 436-38. This case is a swearing contest between the victim, with the physical evidence on her side, and defendant. All depends on the relative credibility of the parties to the events. It is logically possible, but highly unlikely, that the jury would believe the victim about the prior violence, disbelieve her about the violence involved in the charge before it, but convict defendant anyway because he is a bad actor who must have done something or because the jury wants to punish him for the prior violence. If the jury is unlikely to misuse the evidence in this way, it makes no sense to exclude it.
On the other hand, excluding the evidence leads to an inadequate credibility determination. The jury knows that the victim is not telling all she knows and may determine she lacks credibility because of the incompleteness of the testimony. As we noted in Sanders, a single act of domestic violence taken out of its situational context is likely to be seen as incredible.
I recognize that the calculus may be different when the state offers an additional witness to prove the prior uncharged misconduct. As we held in State v. Winter, 162 Vt. 388, 401, 648 A.2d 624, 632 (1994), that situation should be addressed by applying V.R.E. 403, evaluating the State's need for the additional witness in light of the other evidence and the likely effect on the trial.
I think State v. Sanders is correctly decided. I would not overrule it.
Concurring
SKOGLUND, J., concurring.
I concur with the majority's opinion but write separately to express my concerns about its justification for admitting evidence of defendant's prior assaults on the victim. I believe that the prior assaults were admissible to refute defendant's claims of self-defense and accidental injury to the victim. However, I do not believe that they were admissible in this case to provide "context" for the charged offense. In all other respects, I join the majority's opinion.
In response to the State's motion to admit the prior assaults, defense counsel acknowledged that "we will probably be getting into some issue of self-defense." That turned out to be an understatement. In his opening argument, defense counsel told the jurors that "the heart of this case" is "whether or not a man who is kicked in the groin acts recklessly in trying to get the person who kicked him away and to leave that scene." Defense counsel also told the jurors that the injuries the victim claimed defendant had inflicted upon her, for which she received emergency room treatment, were actually incurred the day before the incident when the victim fell down while
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