Date of this Version
New laws and policies aimed at protecting victims of domestic violence have been adopted across the country throughout the last twenty years. The legal approaches taken to protect battered women and control family violence have brought about significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent’s fitness by considering past acts of violence to other family members results in decisions that are more likely to protect children than decisions that discount or disregard spousal abuse. Civil protection orders can provide abused women and their children with a quick and easily accessible remedy that provides housing, financial relief, and an order of child custody. While there is some controversy about the effectiveness of such orders in cases involving severe violence, most advocates and scholars agree that these statutes contribute to improving the lives of women and children. The effectiveness of these new laws in reducing the incidence of domestic violence, however, has been limited for a number of reasons. One of the major barriers to using these laws is the difficulty litigants often encounter when trying to prove domestic violence. First, the alleged victim is often the only witness to the abuse. For a variety of reasons, victims are reluctant to testify against their abusers and pursue civil and criminal remedies. Even when they do testify, women who experience domestic violence sometimes exhibit characteristics that make them less believable. Despite changes in legal and popular conceptions of domestic violence, judges and juries fail to understand some of the effects of domestic violence and their impact on perceived credibility. Experienced practitioners in the area of domestic violence attempt to introduce as much evidence of the abuse as they can gather. Established principles of evidence law, however, present particular challenges in domestic violence litigation. While there is expansive literature on evidentiary challenges in criminal prosecutions for domestic violence, there is very little written about the way courts have looked at particular evidentiary issues in civil cases in which domestic violence is at issue. This article is intended to assist judges in anticipating and responding to some of the evidentiary challenges in civil cases involving domestic violence. First, expert testimony is often necessary to dispel common myths about battered women and to educate judges and juries about the dynamics of domestic violence. Recent case law, however, has limited the admissibility of “non-scientific” expert testimony, making the court’s qualification of experts more challenging. In addition, particular evidentiary issues arise when alleged victims are pursuing both criminal and civil remedies against the alleged batterer. This article explores the ways that may effect civil actions arising from the domestic violence. Finally, we discuss the difficulties in using prior bad acts evidence. Because batterers tend to engage in repeated acts of abuse, evidence of prior acts may be particularly relevant in proving the extent of harm and predicting the likelihood of future abuse. Traditional principles of evidence law, however, often prohibit the admission of other crimes, wrongs, and acts.