Prosecutorial Use of Other Acts of Domestic Violence for Propensity Purposes

A Brief Look at Its Past, Present, and Future

Prosecution of domestic violence offenders is one of the most important tools of deterrence against the domestic violence epidemic in the United States. Domestic violence prosecutions, however, are notoriously diffi-cult because of several unique circumstances, including lack of witnesses to the offense and reluctance of victims to testify against their abusers.Several commentators have suggested an evidence rule for domestic vio-lence cases that takes these unique circumstances into account. This evi-dence rule would allow prosecutors to admit other acts of domestic vio-lence as evidence that the defendant has a propensity to commit domestic violence. There is little doubt that such a rule would greatly aid prosecutors, but it is controversial because it violates the traditional evidentiary prohibition against propensity evidence. This prohibition, however, is not absolute. The Federal Rules of Evidence allow propensity evidence to be admitted in prosecutions for sexual assault and child molestation. Propensity evidence should be admissible in domestic violence cases, the author argues, for reasons similar to those for admitting propensity evidence in sexual assault cases.Only two states—California and Alaska—have adopted statutes allowing propensity evidence in domestic violence cases. The author analyzes the impact of these statutes, concluding that the statutes provide a valuable tool in domestic violence prosecutions. She also analyzes the positions of several other states on the propensity evidence issue, concluding that statutes allowing for propensity evidence are necessary for states to effec-tively hold batterers accountable for their actions.

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