that is not a circumstance so prejudicial to defendant as to justify admission evidence that she was battered at home.
I appreciate that Taylor may wish to offer at trial a reason for her presence at the Fenton Avenue apartment unrelated to participation in a criminal conspiracy. She may do that by testifying that she had a close, loving, and supportive relationship with Slusher which meant a great deal to her, without revealing the genesis of that relationship, or its contrast with abusive conditions at home. While Taylor argues in her brief that "it is not enough to simply elicit that Mary Taylor and Roy Slusher were close" because that proof fails to "avoid the prejudice arising from her relationship with a man not her husband," the better way to avoid that prejudice is to preclude the government from proving Taylor's marital state.
The government is entitled to prove the facts of a shared apartment and bank account unless they unfairly prejudice Taylor. If the jury does not know that Taylor is married to another man, the unfair prejudice to defendant is stripped away, eliminating the need to admit evidence unfairly prejudicial to the government. See Fed. R. Evid. 403.
Thus far I have dealt with defendant's expressed concern with respect to possible prejudice arising out of her conduct. The second basis for admitting the proffered testimony relates to the conversations recorded in the Fenton Avenue apartment and Taylor's credibility as a witness. As noted, Taylor is apparently prepared to deny any recollection of those recorded conversations. Although defendant's proffer of proof is unaccompanied by any written opinion from a qualified expert, I will assume for the sake of this discussion that an expert is prepared to give an opinion that the battered woman's syndrome can explain that particular loss of memory.
As illustrated by the Arcoren case, the battered woman syndrome may, in appropriate circumstances, be offered to counter attacks upon a witness's credibility. The defendant in Arcoren, a resident of a federal Indian reservation, was convicted by a jury of aggravated sexual abuse, abusive sexual contact, and sexual abuse of a minor. The defendant's wife, who was one of the assault victims, testified before the grand jury three days after the events, and described in detail defendant's sexual and physical assaults upon both herself and a girl of minor years. Testifying several months later at trial, the defendant's wife recanted her grand jury testimony and denied that her husband had assaulted her. When the government confronted defendant's wife with her contradictory grand jury testimony, she said that she could not remember making the statements or that, where she did recall making them, they were incorrect. She testified that she accused her husband before the grand jury because she was angry with him for being with another woman and not because he raped her.
The court permitted the government to call an expert witness to testify about battered woman's syndrome. The expert's testimony tended to explain the discrepancy in the wife's grand jury and trial accounts. Following his conviction, Arcoren appealed on the ground that this opinion testimony should not have been received. The Eighth Circuit affirmed the conviction, reasoning that the expert's testimony "provided the jury with a basis upon which to understand and evaluate the changes in [the witness'] testimony." 929 F.2d at 1241.
To some extent, Arcoren and the other battered woman's syndrome cases cited supra, are distinguishable from the case at bar. In most cases where such testimony is offered, the victim turns on her abuser, and the battered woman's syndrome is offered as a defense to criminal charges. In Arcoren, testimony of the syndrome was essential for the government to explain away the victim's recantation, since it lay at the heart of Arcoren's defense to the charges of sexual abuse against him.
In the case at bar, Taylor's proffered testimony -- that she does not presently recall the recorded Fenton Avenue apartment conversations -- does not relate to whether or not the criminal activity actually occurred, or any legal justification for it. It merely explains why she does not remember the conversations.
However, like the Arcoren court, I am faced with a witness whose credibility may be attacked for memory loss which may be explained by an expert on the battered woman's syndrome. Accordingly, I think it would be fair to receive battered woman's syndrome in the case at bar if the government attacks Taylor's credibility on that one issue, namely, her anticipated testimony that she could not recall the recorded conversations.
I note that the government may avoid that problem by refraining from attacking Taylor's credibility on that particular point. The government need not do so, in order to derive a legitimate advantage from whatever is incriminating about Taylor's participation in these conversations. The government could, on cross-examination of Taylor, ask in substance: "Ms. Taylor, you have testified that you do not presently recall the conversations which were recorded and played to the jury. Are you denying that those conversations took place as recorded?" Taylor will presumably respond "no", since her counsel has represented that Taylor does not deny that it is her voice that was recorded. And if Taylor does not deny that the conversations occurred (including her recorded participation in them), the government has the benefit of that evidence, and may argue its probative effect to the jury. Given the evidence available to the government in this case, it does not need to attack Taylor's credibility on the peripheral question of whether she has a present recollection of the past recorded conversations. And if the government does not attack Taylor's credibility on that particular point, the battered woman's syndrome has no explanatory office to perform.
In short, if Taylor testifies as expected, and the government limits its cross-examination on this particular point in the manner suggested, I will not receive either factual or expert opinion testimony relating to the battered woman's syndrome.
These rulings will govern the conduct of the trial.
Dated: New York, New York
May 3, 1993
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE