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Expert witnesses educate judges and juries in both criminal and civil courts. They base their opinions on scientific, technical or specialized knowledge. Expert witnesses can help the courts understand that domestic abuse is not caused by anger, jealousy, mental illness, substance abuse or the victim’s actions. Rather, experts can help explain that the abuser makes a deliberate choice to engage in each abusive or controlling action.
Expert witnesses help the courts understand what victims do to survive. This protects victims from being pathologized or blamed for the consequences of the abuse. Julie Owens, who for many years served as an expert witness in domestic violence cases, explains, “Experts are often used when victims who have been trying to survive abuse have acted in a way that may seem illogical or counterintuitive to the untrained.” She further explains that survivors can face devastating legal outcomes when they are misunderstood, blamed or considered complicit with the abuser.
“For example, they may be convicted of abuse or murder for defending themselves, lose custody of their children, or be deported if undocumented,” according to Owens.
How Expert Witnesses Can Be Utilized
Expert witnesses testify in two different ways:
- General Expertise: This is when an expert knows little to nothing about your specific case and testifies about domestic abuse in general. Your lawyer can still ask hypothetical or “what if” questions that demonstrate how the information pertains to your case.
- Case-Specific: Here, the expert witness testifies to the facts specific to your case. They review associated materials which might include police or medical reports, psychological evaluations, guardian ad litem reports, court documents, and relevant photographs or records of texts. The expert may also conduct a domestic violence/coercive control interview and assessment with the alleged victim.
In either instance, the judge must review the expert’s credentials and agree to admit their testimony before allowing them to speak. The lawyer who engaged the expert questions them first; then the lawyer from the other side cross examines the expert.
What General Expertise on Domestic Abuse Looks Like
Expert witnesses are likely to teach the court about:
- Research on coercive control and domestic violence
- Definitions of the issue and explanations as to why it occurs
- Explanations as to why a victim might recant, lie, comply with, defend, or stay with the abuser
- The characteristics, beliefs, tactics, motivations and behaviors of offenders
- The consequences victims face when they try to protect themselves or their children
- The impact of trauma on adult and child victims and witnesses
- Changes in abuse frequency and severity over time
What a Case-Specific Testimony Sounds Like
If the expert is familiar with the case, this witness may discuss:
- The “natural history” of the couple from the time they met until the present day
- The abuser’s specific domestic abuse/coercive control tactics
- Possible cultural influences on the case
- Ways the survivor tried to moderate the abuse for self-protection or to protect others
- The psychological, medical and financial impact of the abuse on the victim/survivor
- The impact of the abuse on children or other family members
- The findings of a domestic violence/coercive control assessment the expert completed with the victim/survivor
- Recommendations for custody/visitation
- The validity of previous assessments and evaluations by other professionals
When to Use Expert Witnesses
Here are some examples of civil cases where an expert witness may prove key:
- Pre- or post-nuptial agreements or other contracts: An expert witness can assess whether pre- and post-nuptial agreements and other contracts were coerced, and therefore should be set aside.
- Immigration: Often, a domestic abuse victim’s immigration status is tied to her spouse or sponsor and the asylum-seeker wants to avoid deportation because she risks being the victim of domestic homicide or severe violence in her home country.
- Benefits: During a divorce, a domestic abuse survivor may have been too afraid to raise the issue of abuse or demand their rightful half of the abuser’s assets or retirement pay. A domestic violence expert may be able to help a survivor recover these benefits, even after a great deal of time has passed.
- Divorce: An expert witness can help the court understand the need to protect victim/survivors from divorce or custody agreements that would put them at risk or enable further abusive control.
- Custody/visitation: In family court, an expert can describe the evidence of domestic abuse and explain the victim’s survival behaviors. Where relevant, the expert can offer an opinion of any potential danger to the children if the abuser is granted custody or unsupervised visitation. The expert can counter claims of “parental alienation syndrome” which abusers’ attorneys sometimes use to wrest custody from a protective parent.
- Vexatious litigation or litigation abuse: The expert can educate the court about the ways an abuser may file frequent court petitions to control, harass, or impoverish the victim.
- Tort cases: In some jurisdictions, victims of domestic abuse can sue the abuser for damages that occurred over time. Experts can help explain the harms to establish the basis for compensation.
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Here are some examples of criminal cases where an expert witness may prove key:
- Felonies: Domestic abuse experts educate the courts in cases involving stalking, assault, murder, attempted murder, sexual assault, and other felonies. They may be especially important where abusers try to defend themselves by saying the sexual activities were consensual, or that the violence resulted from a fight rather than abuse, or that the victims had freely given away their assets.
- Mitigating circumstances: Experts teach the courts about the pressures on domestic abuse victims in cases where the abuse victim assaulted or killed the abuser, or where the abuser pushed the victim into committing another crime.
- Child Abuse or Neglect: Sometimes a domestic abuse victim faces charges related to the injury or death of a child. The expert witness can provide important contextual information.
Whenever the courts need to understand domestic abuse, an expert can provide testimony, including in grand jury hearings, plea negotiations, trials, sentencing, and clemency or parole hearings. Expert witnesses are not “on” either the plaintiff’s or defendant’s side.
For information on how to find and retain an expert witness, and costs, read: Expert Witnesses in Domestic Violence and Coercive Control Cases: Part 2.
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