Professional Documents
Culture Documents
4/2/2012 1:37 PM
MICHELLE BYERS*
ABSTRACT
* Candidate for Juris Doctor, New England Law | Boston (2012). B.S., Criminal Justice,
magna cum laude, Northeastern University (2006). I would like to thank my inspiration for
this Note: those who have survived, and those who have lost, the fight against domestic
violence.
551
552
4/2/2012 1:37 PM
v. 46 | 551
INTRODUCTION
very year, over seven million women and men are victims of
domestic violence across the United States. 2 Many of these women
and men are continually abused by the same perpetrator. 3
Complicated in nature, domestic violence is intertwined with familial and
emotional relationships making it difficult to successfully prosecute
perpetrators of these crimes. 4 Massachusetts alone struggles to protect
almost eighteen hundred victims of domestic violence on a daily basis. 5
The legal tools prosecutors have to combat domestic violence are limited.6
This hamstrings prosecutors who must overcome hurdles of bias,
reluctance, and lack of corroboration when bringing any meaningful
prosecution of domestic violence.7 Even then, evidentiary rules can stand
in the way of presenting a full and complete picture of the violence that
goes on in an abusive domestic relationship. 8
Massachusetts needs to recognize that domestic violence is as
prevalent now as they were when first acknowledged in the 1970s.9
Massachusetts must provide a framework to effectively fight this intimate
1
IA JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 37.4 (Peter Tillers ed.,
1983), reprinted in PETER TILLERS, MODERN THEORIES OF RELEVANCY 1030 (1983).
2 See NATL CTR. FOR INJURY PREVENTION & CONTROL, CTRS. FOR DISEASE CONTROL &
PREVENTION, UNDERSTANDING INTIMATE PARTNER VIOLENCE FACT SHEET 1 (2011) [hereinafter
UNDERSTANDING IPV], available at http://www.cdc.gov/violenceprevention/pdf/IPV_factsheeta.pdf.
3 See PATRICIA TJADEN & NANCY THOENNES, NATL INST. OF JUSTICE & CTRS. FOR DISEASE
CONTROL & PREVENTION, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER
VIOLENCE: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 39 (2000)
[hereinafter EXTENT, NATURE, AND CONSEQUENCES OF IPV], available at http://www.ncjrs.gov/
pdffiles1/nij/181867.pdf.
4
See Jennice Vilhauer, Essay, Understanding the Victim: A Guide to Aid in the Prosecution of
Domestic Violence, 27 FORDHAM URB. L.J. 953, 956-60 (2000).
5 NATL NETWORK TO END DOMESTIC VIOLENCE, `11 DOMESTIC VIOLENCE COUNTS:
MASSACHUSETTS SUMMARY (2011), available at http://www.nnedv.org/docs/Census/DVCounts
2010/DVCounts10_StateSummary_MA_Color.pdf.
6
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
553
See, e.g., CAL. EVID. CODE 1109 (West 2009); ALASKA R. EVID. 404(b)(4) (2010).
See 2 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 302 (James H.
Chadbourn ed., 1979); Imwinkelried I, supra note 10, at 434; infra Parts II-III.
12
13
554
4/2/2012 1:37 PM
v. 46 | 551
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
555
25
Id.
LENORE E. A. WALKER, THE BATTERED WOMAN SYNDROME 91 (3d ed. 2009) [hereinafter
WALKER II].
26
556
4/2/2012 1:37 PM
v. 46 | 551
38
39
40
41
42
43
44
45
46
47
48
49
50
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
557
Reluctant Victims
Id. at 65.
Vilhauer, supra note 4, at 955.
53 Andrea M. Kovach, Note, Prosecutorial Use of Other Acts of Domestic Violence for Propensity
Purposes: A Brief Look at Its Past, Present, and Future, 2003 U. ILL. L. REV. 1115, 1126.
52
54
56
Id.
Jay A. Abarbanel, Comment, In Light of Crawford v. Washington and the Difficult Nature
of Domestic Violence Prosecutions, Maryland Should Adopt Legislation Making Admissible Prior Acts
of Domestic Violence in Domestic Violence Prosecutions, 39 U. BALT. L. REV. 467, 474 (2010);
Kovach, supra note 53.
57
58
60
61
558
4/2/2012 1:37 PM
v. 46 | 551
62
67
68
69
70
71
72
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
559
Although there is empirical support for BWS,73 for many years it was
not an accepted theory for understanding the plight of battered women.74
In both BWS and PTSD, victims may experience amnesia as a form of
avoidance,75 as they cannot remember the details of frequent abuse. 76 BWS
helps explain why victims delay reporting the abuse and why they remain
with the batterer after the abuse occurs.77 BWS can hinder the prosecutions
case since the victim is unable to testify78 or because the fact finder will not
accept BWS as a valid medical condition.79
3.
73
See WALKER II, supra note 26, at 46; see generally Sharon Angella Allard, Rethinking
Battered Woman Syndrome: A Black Feminist Perspective, in DOMESTIC VIOLENCE AT THE
MARGINS: READINGS ON RACE, CLASS, GENDER, AND CULTURE 194-205 (Natalie J. Sokoloff &
Christina Pratt eds., 2005); CIVIC RESEARCH INST., INTIMATE PARTNER VIOLENCE, at xxv-xxvi
(Kathleen A. Kendall-Tackett & Sarah M. Giacomoni eds., 2007). For a critique on the
reliability of battering statistics, see DAVIS, supra note 17, at 33-45.
74 See DALTON & SCHNEIDER, supra note 21, at 211; Sue Osthoff & Holly Maguigan,
Explaining Without Pathologizing, in CURRENT CONTROVERSIES ON FAMILY VIOLENCE 225, 230
(Donileen R. Loseke et al. eds., 2d ed. 2005).
75 AM. PSYCHIATRIC ASSN, supra note 66, at 464; Lenore Walker, The Battered Woman
Syndrome Is a Psychological Consequence of Abuse, in CURRENT CONTROVERSIES ON FAMILY
VIOLENCE 133, 138-44 (R. J. Gelles & D. R. Loseke eds., 1993), reprinted in DALTON &
SCHNEIDER, supra note 21, at 119.
76
77
78
79
80
81
82
83
84
560
4/2/2012 1:37 PM
v. 46 | 551
Some experts in the field even suggest that the victims are to blame. 90 These
clinicians view victim helplessness as a form of masochism, insisting that
women contribute to their victimization by acting indecisive and
vulnerable.91 The combination of these biases hurts a victims credibility
and impedes the batterers prosecution.92
4.
85
ANN JONES, NEXT TIME, SHELL BE DEAD: BATTERING AND HOW TO STOP IT 131 (1994).
See BELKNAP, supra note 17, at 282.
87 Kovach, supra note 53, at 1126.
88 Rosemary C. Hunter, Gender in Evidence: Masculine Norms vs. Feminist Reforms, 19 HARV.
WOMENS L.J. 127, 157 (1996).
86
89 Connecticut v. Borrelli, 629 A.2d 1105, 1112 (Conn. 1993) (quoting Neil J. Vidmar &
Regina A. Schuller, Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP.
PROBS., Autumn 1989, at 133, 154).
90 EDWARD W. GONDOLF WITH ELLEN R. FISHER, BATTERED WOMEN AS SURVIVORS: AN
ALTERNATIVE TO TREATING LEARNED HELPLESSNESS 14 (1988).
91
92
93
94
Id. at 15 (citing NATALIE SHAINESS, SWEET SUFFERING: WOMAN AS VICTIM 127 (1984)).
Kovach, supra note 53, at 1126, 1127 n.91.
541 U.S. 36 (2004).
547 U.S. 813 (2006).
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
561
95
98
562
4/2/2012 1:37 PM
v. 46 | 551
The text of this section practically mirrors the text of Federal Rule of
Evidence 404(b),112 which traditionally and intentionally seeks to prohibit
propensity evidence.113 It is presumed that this type of evidence has low
probative value and carr[ies] the distinct risk of undue prejudice.114 In the
105
109
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
563
115
See MASS. GUIDE TO EVID. 404(b) (2012); WALKER I, supra note 9, at 55.
See Vartabedian, supra note 55, at 158.
117 But see MASS. GEN. LAWS ch. 233, 23F (2010) (allowing the defendant to introduce
evidence that the defendant is or has been the victim of acts of physical, sexual, or
psychological harm or abuse for self-defense purposes).
118 See Kovach, supra note 53, at 1119-20 (describing the four-step analysis used to
determine the admissibility of evidence under the Federal Rules of Evidence).
116
119
MASS. GUIDE TO EVID. 401 (2012); Kovach, supra note 53, at 1119.
See Kovach, supra note 53, at 1119.
121 See MASS. GUIDE TO EVID. 402 (2012) (All relevant evidence is admissible, except as
otherwise limited by constitutional requirements, statute, or other provisions of the
Massachusetts common law of evidence. Evidence which is not relevant is not admissible.).
122 Id. 403.
123 Kovach, supra note 53, at 1119; see Commonwealth v. Bonds, 840 N.E.2d 939, 950 (Mass.
2006) (noting that evidence will only be excluded if its probative value *is+ substantially
outweighed by its prejudicial effect); Commonwealth v. Martin, 809 N.E.2d 536, 537 (Mass.
2004) (noting that evidence cannot be admitted unless its probative value outweighs undue
prejudice).
120
564
4/2/2012 1:37 PM
v. 46 | 551
124
See MASS. GUIDE TO EVID. 404(b) (2012); Kovach, supra note 53, at 1119-20.
See Kovach, supra note 53, at 1129.
126 Id. at 1120-21 (internal quotation marks omitted).
127 See id. at 1128-29.
128 See supra Part 1
129 Commonwealth v. Gonsalves, 833 N.E.2d 549, 559 (Mass. 2005).
130 Commonwealth v. Galicia, 857 N.E.2d 463, 469 (Mass. 2006).
131 Abarbanel, supra note 57, at 495.
132 See JONES, supra note 85, at 216.
133 Facts and Stats 2010: Domestic Violence Awareness Month, JANE DOE INC., 1 (2010)
[hereinafter JANE DOE INC.], available at http://www.janedoe.org/site/assets/docs/DVAM_2010_
Facts_Stats.pdf.
134 NATL NETWORK TO END DOMESTIC VIOLENCE, supra note 5. On September 15, 2011,
Massachusetts participated in the National Census of Domestic Violence Services, which
125
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
565
Id.
See supra Part 1-3.
137 HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 74 (1968).
138 See BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE, PROFILE OF INTIMATE PARTNER
VIOLENCE CASES IN LARGE URBAN COUNTIES 1 (2009), available at http://bjs.ojp.usdoj.gov/
content/pub/pdf/pipvcluc.pdf.
136
139 Id. at 4, 7. This report was based on data from large urban counties. Id. at 11. Although
Massachusetts was not included, this study is reflective of the common misconceptions of
domestic-violence prosecutions. See id. at 9.
140 See infra Part III.
141 See CAL. EVID. CODE 1109 (West 2009); ALASKA R. EVID. 404(b)(4) (2010).
142 See CAL. EVID. CODE 1109; ALASKA R. EVID. 404(b)(4).
143 Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 IND.
L. REV. 687, 701-02 (2003).
566
4/2/2012 1:37 PM
v. 46 | 551
144
145
2000).
146
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
567
162
568
4/2/2012 1:37 PM
v. 46 | 551
ANALYSIS
II. A Proposal for Change: The Doctrine of Chances and the
Admissibility of Prior-Acts Evidence in Domestic-Violence
Prosecutions
Massachusetts should adopt the Doctrine in order to assist in the
successful prosecution of domestic violence. This move would provide a
non-character theory of logical relevance172 and would support the
163
Id. (internal quotation marks omitted). The court noted that the legislative minutes and
files contain no information regarding the intended purpose, scope, or perceived need for this
rule. Id. at 406.
164
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
569
173
175
Id. at 16.
2 WIGMORE, supra note 12, 302, at 241.
177 United States v. Matthews, 53 M.J. 465, 470 (2000).
178 Imwinkelried I, supra note 10, at 452; see also WIGMORE, supra note 12, 302, at 245.
179 Imwinkelried II, supra note 174, at 19.
180 Imwinkelried I, supra note 10, at 423.
181 See Miguel A. Mndez & Edward J. Imwinkelried, People v. Ewoldt: The California
Supreme Courts About-Face on the Plan Theory for Admitting Evidence of an Accuseds Uncharged
Misconduct, 28 LOY. L.A. L. REV. 473, 478 (1995).
176
182
183
570
4/2/2012 1:37 PM
v. 46 | 551
incidents were not accidents at all; the probativity of each similar act will
vary depending on whether the act could be repeated without intent. 184
Because similar results do not usually occur from dissimilar acts,185 the
recurrence of the same result decreases the likelihood that the act occurred
by accident, inadvertence, self-defense, good faith, or another innocent
mental state.186 The inference from this line of reasoning tends to establish
intent to commit the crime.187
Beyond a reasonable doubt requires certainty in the knowledge of the
evidence, and we must assume . . . that any information that alters our
assessment of the probability of some fact is pertinent and increases our
knowledge.188 The Doctrine invites the fact finder to consider the
objective improbability of a coincidence in determining whether the
charged crime was an accident or the defendant was caught up in
suspicious circumstances.189 The final conclusion the Doctrine seeks is
limited.190 The Doctrine does not seek to prove that any of the incidents
were a product of the defendants propensity to commit the crime,191 but
that it is less likely that accident accounts for the defendants
involvement.192
The Doctrine does not require a general pattern of conduct or
connection between each act.193 The Doctrine focuses on the mere repetition
of instances and not their system or scheme. 194 This limited use of prior-acts
evidence satisfies the logical inferences demanded by the evidence. 195 As
one Chief Justice put it:
It is not conclusive, for a man may be many times under a similar
mistake, or may be many times the dupe of another; but it is less
likely he should be so oftener than once, and every circumstance
which shows he was not under a mistake on any one of these
occasions strengthens the presumption that he was not on the
last.196
184
185
186
187
188
189
190
191
192
193
194
195
196
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
571
For prior-acts evidence to be relevant, the Doctrine must show that, viewed
in conjunction with the prior-acts evidence, the charged conduct would be
an extraordinary coincidence.197 The Doctrine satisfies the logical relevance
requirement of Massachusetts Guide to Evidence Section 401198 by
increasing the probability that the charged offense occurred by eliminating
the probability that random chance is at work. 199 For example, suppose a
person has a history of conduct that results in repeated arrests, convictions,
or allegations for the same type of violence.200 It is more likely that the
person committed at least one or more of those crimes. 201 The Doctrine
relies on statistics and probability.202 It is not logical to assume that a
defendant is simply plagued with bad luck.203 The Doctrine is usually
intertwined with evidentiary issues regarding admissibility of character
evidence during a trial.204
B. Character Evidence and the Doctrine of Chances
The policies that underlie the character-evidence prohibition are not
present in the Doctrine.205 The character-evidence prohibition is based on
the presumption that the fact finder will use it to decide what kind of
person the defendant is.206 Arguably, this leads to the temptation to
punish the [defendant] for his or her criminal past.207 This conflicts with
the longstanding judicial policy that prohibits inferring bad character from
bad acts and, ultimately, guilt from bad character. 208 The other basis of the
prohibition is that the fact finder will treat the character evidence as a
predictor of behavior.209 This leads the fact finder to exaggerate the
197
201
204
209
572
4/2/2012 1:37 PM
v. 46 | 551
Id.; see MASS. GUIDE TO EVID. 404(b) (2012) note to subsection (b).
Imwinkelried II, supra note 174, at 19.
212 Id. at 20.
213 Id.
214 See id. at 19.
215 Imwinkelried I, supra note 10, at 461.
216 MASS. GUIDE TO EVID. 404(b) (2012).
217 Imwinkelried I, supra note 10, at 437.
218 See id. at 462 (*U+ncharged misconduct *evidence+ accepted under the doctrine is
logically relevant without positing any assumption about the defendants personal, subjective
bad character.).
211
219
See generally 2 WIGMORE, supra note 12, 303 (describing how it is possible to negative
accident or inadvertence, and to infer deliberate human intent, without forming any
conclusion as to the personality of the doer); Imwinkelried I, supra note 10, at 434.
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
573
accidents.220 The conclusion the fact finder would be entitled to make is not
about the character of the defendant but rather that it is a coincidence that
the defendant is involved in the charged crime. 221 This implicates neither
the defendants propensity to commit the charged act nor the fact finders
willingness to punish the defendant for who he is.222 Using the Doctrine,
rather than merely adopting a categorical acceptance of prior-acts evidence
like California or Alaska,223 recognizes the constitutional importance of
prohibiting character evidence224 and legally permits highly relevant
evidence in domestic-violence prosecutions.225
Opponents argue that application of the Doctrine is inherently
propensity based.226 They argue that once the probability of random chance
is eliminated, logic requires an inference that it was the defendants
propensity that caused the crime.227 However, even if a lay juror reaches a
conclusion through this line of reasoning, it still fails to account for human
autonomy.228 Human beings are capable of making decisions contrary to
character trait.229 Application of the concept of autonomy allows for the
disregard of character trait for propensity altogether. 230 Discarding
propensity-based reasoning provides the opportunity to evaluate prior-acts
evidence in an unbiased, objective light.231
220
226 Id. at 450; see Lisa Marshall, Note, The Character of Discrimination Law: The Incompatibility
of Rule 404 and Employment Discrimination Suits, 114 YALE L.J. 1063, 1081 (2005).
227 Imwinkelried I, supra note 10, at 450.
228 See generally GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY 6 (1988) (A
person is autonomous to the degree that what he thinks and does cannot be explained
without reference to his own activity of mind.).
229 See WAYNE R. LAFAVE, CRIMINAL LAW 1.5(a)(3)-(5), at 27-29 (4th ed. 2003) (discussing
how punishment, whether of oneself or others, can affect how an individual makes his
decisions).
230 See MORTIMER J. ALDER, SIX GREAT IDEAS: IDEAS WE JUDGE BY, IDEAS WE ACT ON 142
(1981) (arguing that freedom of decision can be possessed and exercised by individuals of
good or bad moral character). But see Becker v. ARCO Chem. Co., 207 F.3d 176, 191 (3d Cir.
2000).
231
574
4/2/2012 1:37 PM
v. 46 | 551
232
See Abarbanel, supra note 57, at 472; Kovach, supra note 53, at 1126-29.
WALKER II, supra note 26, at 91; Vartabedian, supra note 55, at 174; Cycle of Violence, supra
note 27.
233
234
240
241
242
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
575
previously,243 the Doctrine permits the fact finder to objectively consider the
likelihood that the defendants explanation of the incident is true or
accurate.244
Adoption of the Doctrine in domestic-violence prosecutions would still
shield defendants from improper use of character evidence and could save
the lives of domestic-violence victims who are stuck in the Cycle of
Violence.245 The high recidivism rate associated with domestic violence
demands that more must be done to protect victims and prosecute
domestic violence.246 Some state legislatures have recognized that domestic
violence is cyclical in nature and involve[s] patterns of abuse.247 These
states have taken some measures to combat domestic violence.248
Massachusetts should follow their lead by adopting the Doctrine of
Chances as a non-character theory of logical relevance to admit prior-acts
evidence for nonpropensity purposes.249 The Doctrine respects the
defendants constitutional rights more so than a categorical statutory
exception, and it does not require legislative action.250
III. Massachusettss Adoption of the Doctrine of Chances in DomesticViolence Prosecutions
Adoption and implementation of the Doctrine of Chances in
Massachusetts would not be difficult. Massachusetts courts could begin
recognizing the Doctrine through case law and evidentiary rules already in
force and supplement the law with aspects of other states approaches.251
Applying the Doctrine would continue to protect defendants
constitutional rights and would promote victims rights and safety.252
243 See Kovach, supra note 53, at 1131 (stating that studies conclude that domestic-violence
defendants have a high rate of recidivism).
244 Imwinkelried I, supra note 10, at 439. Contra Morris, supra note 200, at 200-01.
245 See supra Part 1-3; infra Part B.
246 See Vartabedian, supra note 55, at 180-81.
247 Kovach, supra note 53, at 1144. Kovach surveyed Alaska, California, Colorado, Illinois,
Kansas, and Minnesota to conclude that the admission of prior-acts evidence benefits
domestic-violence prosecutions. Id. at 1132-51.
248
249
Id. at 1143-44.
See 2 WIGMORE, supra note 12, 302; Imwinkelried I, supra note 10, at 434-37; infra Part
III.
250
252
576
4/2/2012 1:37 PM
v. 46 | 551
256
See MASS. GUIDE TO EVID. 104(b) (2012). Sufficient to support a finding means that
the judge is satisfied that a reasonable jury could find that the event took place or the
condition of fact was fulfilled. See id. note to subsection (b)(1).
257
258
259
260
261
262
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
577
263
271 See People v. Brown, 92 Cal. Rptr. 2d 433, 436-37, 440 (Cal. Ct. App. 2000) (describing
how two women testifying about defendants past domestic violence in their relationships is
not a violation of due process).
272 Imwinkelried II, supra note 174, at 18 (citing Victor J. Gold, Limiting Judicial Discretion to
Exclude Prejudicial Evidence, 18 U.C. DAVIS L. REV. 59, 68, 80 (1984)).
273
274
578
4/2/2012 1:37 PM
v. 46 | 551
of evidence, and the prohibition on character evidence. 275 The Doctrine also
utilizes portions of other accepted federal and state laws to establish a
workable, noncharacter theory for admission of prior-acts evidence in
domestic-violence prosecutions.276
B. The Doctrine Provides Adequate Protection for Defendants
The Doctrine withstands various constitutional concerns raised by
criminal defendants.277 Policy considerations supporting the admission of
prior acts of domestic violence outweigh the considerations that have
traditionally supported the prohibition on character evidence.278
Introduction of prior-acts evidence does not run afoul of the Due
Process Clause.279 For the Doctrine to offend due process, it must offend
some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.280 The introduction of evidence of
similar acts of domestic violence does not offend justice, nor does it violate
a fundamental right.281 The Doctrine promotes justice by helping to hold
the batterer accountable for the charged offense. 282 In evaluating whether a
defendants substantive due process rights have been violated, the means
should bear a rational relationship to its end and should be narrowly
tailored to effectuate its purpose.283 The admission of prior-acts evidence
rationally relates to Massachusettss interest in protecting domesticviolence victims by demonstrating the probability that the instant charge
was not accidental.284 Using the Doctrine to admit prior-acts evidence is
limited in scope and addresses the specific need to provide prosecutors
with adequate tools to successfully prosecute domestic violence.285
275
276
2009).
277 See People v. Jennings, 97 Cal. Rptr. 2d 727, 735 (Cal. Ct. App. 2000); People v. Johnson,
91 Cal. Rptr. 2d 596, 602-03 (Cal. Ct. App. 2000); People v. Dabbs, 940 N.E.2d 1088, 1097-99 (Ill.
2010).
278
281
People v. Hoover, 92 Cal. Rptr. 2d 208, 213-14 (Cal. Ct. App. 2000).
Cf. Kovach, supra note 53, at 1126 (noting the challenges in successful prosecution of
domestic violence).
283 See Griswold, 381 U.S. at 497-98 (Goldberg, J., concurring).
284 Dabbs, 940 N.E.2d at 1098; see People v. Donoho, 788 N.E.2d 707, 721 (Ill. 2003).
285 Imwinkelried I, supra note 10, at 437; see supra Part D. This Note only argues that the
Doctrine of Chances should be applied to domestic-violence crimes.
282
4/2/2012 1:37 PM
2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
579
286
See People v. Jennings, 97 Cal. Rptr. 2d 727, 735 (Cal. Ct. App. 2000).
See id.
288 See id.
289 See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488-89 (1955). The government
must show that the challenged classification serves a compelling state interest and that the
classification is necessary to serve that interest.
290 See Williamson, 348 U.S. at 488-89.
291 See NATL NETWORK TO END DOMESTIC VIOLENCE, supra note 5.
292 MASS. GUIDE TO EVID. 403 (2012); see Kovach, supra note 53, 1135-36; see also FED. R.
EVID. 403; Commonwealth v. Bonds, 840 N.E.2d 939, 950 (Mass. 2006); Commonwealth v.
Martin, 809 N.E.2d 536, 537 (Mass. 2004).
287
293 See Commonwealth v. Rosa, 661 N.E.2d 56, 61 (Mass. 1996) (holding that the judge has
discretion to exclude confusing and misleading evidence); Commonwealth v. Berry, 648
N.E.2d 732, 741 (Mass. 1995) (holding that the judge has discretion to avoid unnecessary
inflammatory material); Commonwealth v. Cruz, 759 N.E.2d 723, 736 (Mass. App. Ct. 2001)
(holding that the judge has discretion to exclude unduly time-consuming evidence).
294 People v. Johnson, 91 Cal. Rptr. 2d 596, 602-03 (Cal. Ct. App. 2000).
295 See People v. Jennings, 97 Cal. Rptr. 2d 727, 735 (Cal. Ct. App. 2000); Johnson, 91 Cal.
Rptr. 2d at 602-03; People v. Dabbs, 940 N.E.2d 1088, 1098-99 (Ill. 2010).
580
4/2/2012 1:37 PM
v. 46 | 551
CONCLUSION
Every day in Massachusetts close to eighteen hundred victims seek
help surviving domestic violence. By adopting the Doctrine of Chances,
Massachusetts could positively assist victims by protecting domesticviolence victims from repeated acts of violence or possibly even death. The
Doctrine provides a noncharacter theory of logical relevance that facilitates
admission of prior acts of domestic violence. Admission of prior-acts
evidence increases the probability that the instant crime is not a random
accident or false accusation. Recognizing that domestic violence is cyclical
in nature furthers what should be the goal of Massachusettss legal system:
legal protections for domestic violence victims that are equal to or greater
than the protections afforded to defendants. Massachusetts should do more
to combat domestic violence, and adoption of the Doctrine of Chances to
admit prior instances of conduct would do just that.
296 Cf. JONES, supra note 85, at 216 (arguing that courts should routinely review a domestic
abusers criminal record in order to protect the victims from future acts of violence).
297
Cf. Hunter, supra note 88, at 134 (explaining that prosecution of domestic-violence cases
can be made difficult due to a victims reluctance to come forward); Kovach, supra note 53, at
1132.
298
299
300
See JONES, supra note 85, at 217; Hunter, supra note 88, at 167.
See Kovach, supra note 53, at 1131-32.
See supra Part I.C.1.