by H. Morley Swingle, Angel M. Woodruff & Julia A. Hunter¹

Whichever great Russian novelist properly characterized unhappy families, one fact is certain: The unhappiness afflicting many families is rooted in domestic violence. Although victims can be from either sex, the overwhelming majority are female.³ More than two million women are assaulted by spouses or boyfriends every year.⁴ A woman is abused every 15 seconds, making domestic abuse the leading cause of injury to women aged 15 to 44, accounting for more injuries than accidents, muggings and rapes combined.⁵ Unfortunately, as the Supreme Court of Missouri recognized two decades ago, the criminal justice system has done a "less than adequate" job of dealing with these cases.⁶ Efforts to improve the ability of the criminal law to address this problem have resulted in numerous changes in substantive and evidentiary law over the past decade, dramatically altering the way many domestic violence cases are prosecuted.

Cycle of Violence

Most of the changes in Missouri domestic violence laws have been aimed at putting a dent in the "cycle of violence" present in domestic assault cases. "[A]n abusive relationship is [typically] characterized by a [repeating] cycle of violence containing three phases:" a tension-building phase; an assault incident; and a loving-repentant phase.⁷ Most authorities believe that the most effective way to prevent domestic violence from occurring is for law enforcement officials to stop the "cycle of violence" by implementing mandatory arrest and "no-drop" policies.

Missouri's "Almost Mandatory" Arrest Law

Unlike days of yesteryear, when police officers simply counseled the domestic batterer to take a walk around the block to cool off,⁸ most states now have mandatory arrest laws requiring police officers to arrest the primary aggressor in each domestic violence case.⁹ Being arrested tends to impress upon the abuser the seriousness and wrongfulness of his conduct. Preliminary studies suggest that mandatory arrest works: Abusers who are arrested at the crime scene are less likely to become recidivists.¹⁰ Since 1989, Missouri has had an almost mandatory arrest law.¹¹ Although a Missouri police officer is not automatically required to arrest the primary aggressor when responding to a domestic violence call, if an arrest is not made the officer must file a written report explaining the choice not to arrest. An officer responding to the same address within the next 12 hours is required to make an arrest.

Prosecutor No-Drop Policies

In the past, most prosecutors routinely dismissed domestic assault cases upon the victim's request. Some jurisdictions still do. In those areas, 50 to 80 percent of the domestic violence cases are disposed of by dropping the charges.¹² In recent years, however, many prosecutor's offices nationwide have implemented no-drop policies in domestic violence cases.¹³ Under a no-drop policy, the prosecutor will not dismiss a domestic violence case simply because the victim so requests. Most experts agree that these no-drop policies provide increased protection for a victim because her attacker realizes the prosecution will continue even if he intimidates her into refusing to cooperate with the prosecutor.¹⁴ Many victims are relieved when told charges will not be dropped, and ultimately testify, even though they never would have voluntarily testified had they not been required to appear by the issuance of a subpoena.¹⁵ Interestingly, although women's rights groups first criticized prosecutors for being too prone to dismiss domestic violence cases and encouraged implementation of no-drop policies,¹⁶ a minority of them are now critical of prosecutors for "disempowering" women by using no-drop policies.¹⁷

New Domestic Violence Statutes

The Missouri legislature took big strides in protecting women from abusers by strengthening adult abuse laws in 1989¹⁸ and by enacting stalking laws in 1993.¹⁹ The lawmakers took another stab at curbing domestic violence in the year 2000 with a set of new domestic assault crimes, ranging from misdemeanors to felonies.²⁰ Perhaps the most drastic change was the creation of the crime of domestic assault in the second degree, which makes it a felony for a person to attempt to cause a physical injury to a domestic partner.²¹ Thus, a punch, kick or choke that would normally be a misdemeanor when committed by a stranger upon a stranger²² becomes a class C felony when perpetrated by one paramour upon the other. In some cases, a prosecutor will choose to stick with traditional assault charges, since the new crimes all require proof of the relationship between the victim and the defendant as an additional element of the crime.²³ Many defendants seek amendment of their domestic assault charges to traditional assaults under the mistaken belief that it will lessen the impact of a conviction upon their ability to own firearms.²⁴

Dangerousness as a Bond Factor

For many years domestic violence victims were often hesitant to report and pursue prosecution of their abusers because the suspects would get out of jail so quickly that the risk of retaliation was extremely high. Since the Crime Victims' Rights Amendment²⁵ was added to the Missouri Constitution in 1992, a judge now expressly has the power, both in felonies and misdemeanors, to deny bond entirely or to set it extremely high in any case where the suspect "poses a danger to a crime victim, the community, or any other person." Thus, the courts have tremendous power to protect victims when they choose to use it. Recent legislation has also given a victim the right to be notified when her abuser is being released.²⁶ Prosecutors should not forget that the primary goal of prosecution in domestic abuse cases is the protection of the victim, and should seek high bonds when appropriate and see that policies are in place for notification of victims upon release of their batterers.

The Uncooperative Victim

The most serious challenge to prosecutors handling domestic violence cases remains the situation where the victim has changed her mind and no longer wants to cooperate in the prosecution of the defendant. Domestic violence victims frequently become reluctant or even hostile witnesses for the prosecution.²⁷ They often have valid reasons for not wanting to testify, including fear of physical injury at the hands of the perpetrator, hope that the violence will cease voluntarily on his part, and desperation in terms of finances.²⁸ The clash between prosecutors seeking to stop the cycle of violence and defense lawyers trying to use the victim's lack of cooperation to get a client off scot-free can involve a variety of complex legal issues.

Spousal Privilege

Missouri is one of only four states that has not amended its spousal privilege statute to carve out an exception for domestic violence victims; 46 states have abolished the spousal privilege in domestic abuse cases.²⁹ Thus, in Missouri, a battered wife may choose whether or not she will testify about her husband's assault upon her.³⁰ The prosecutor may not compel her to testify. In these situations, "a victim's hearsay statements can become the only opportunity for the prosecutor to bring in the victim's 'voice' at trial."³¹

Taking the Fifth

Some victims try to refuse to testify by invoking the Fifth Amendment right against self-incrimination. Rightfully, the Fifth Amendment only applies when the testimony of the victim would cause her to incriminate herself. Some witnesses incorrectly believe that one can "take the Fifth" when one simply does not want to testify for any reason. A prosecutor can sometimes get around a victim's attempt to invoke this privilege by getting the witness to admit that nothing she did involved her own commission of a crime or that the only crime she is worried about prosecution for is perjury if she testifies.³² On the other hand, a witness may not be asked to explain precisely how her testimony could incriminate her;³³ thus, the invocation of this privilege, even when falsely done, can sometimes thwart a prosecution. Since 1997, a Missouri prosecutor has the additional option of compelling the testimony by granting immunity.³⁴ Since this procedure involves an extra court appearance in front of a judge other than the trial judge, it can be a cumbersome process. Neither party is allowed to put a witness on the stand in front of a jury solely for the purpose of having the witness "take the Fifth."³⁵

Contempt of Court

A witness who cannot successfully invoke the spousal or Fifth Amendment privilege may be ordered by the trial court to answer the prosecutor's questions. A refusal to answer can result in a finding of contempt of court,³⁶ including the possibility of jail time or fines.³⁷ Contempt of court charges may also be filed against a victim who deliberately dishonors a subpoena.³⁸ Thus, a victim who chooses to try to protect her attacker may end up being victimized both by her abuser and by the legal system. Jailing a victim for contempt of court should absolutely be a last resort for prosecutors. The whole point of prosecuting domestic violence cases is to change the conduct of the abusers, not to further victimize the victims. Nevertheless, a prosecutor represents society as a whole, not a particular victim.³⁹ Sometimes the greater good calls for making an example of a contumacious witness.⁴⁰ Often, the mere threat of contempt "will persuade the woman to testify."⁴¹

Witness Attachment

A witness who fails to show up for court when subpoenaed, in addition to facing contempt of court charges, may also be the subject of a body attachment to assure her presence in court.⁴² Again, this should be a rare occurrence, since the main goal of the prosecution is to protect victims, not to jail them. But a practice of simply giving up prosecution when a victim fails to appear "sends assailants the clear message that if their victims are 'convinced' not to attend . . . hearings, they will escape the consequences of their abusive acts."⁴³

Ethical Considerations

Defense lawyers sometimes walk an ethical tightrope in domestic violence cases. The attorney has a duty to represent the client zealously within the bounds of the law.⁴⁴ Sometimes this means fighting for an outright acquittal or dismissal. In other cases, the client might best benefit from a guilty plea and probationary terms geared toward helping address the problems within the family.⁴⁵ The attorney should be familiar with the various rehabilitative programs available and fully explain all options to the client.⁴⁶

A particularly delicate ethical situation can arise when the victim asks her abuser's attorney for advice about her testimony. Obviously, the lawyer cannot ethically tell the client's victim to lie⁴⁷ or to assert a Fifth Amendment privilege when a fact situation does not call for it.⁴⁸ Lawyers have been disciplined for encouraging the prosecution's witnesses to become unavailable for service of subpoenas.⁴⁹ Lawyers with corrupt motives have been disciplined⁵⁰ and even prosecuted for witness tampering⁵¹ for advising witnesses to assert Fifth Amendment privileges. Although the ABA Ethics Committee has opined that a criminal defense lawyer may truthfully and accurately inform a witness of the existence of the Fifth Amendment privilege,⁵² ethics experts have warned that a lawyer should not give advice to an unrepresented person other than advice to obtain counsel when a reasonable possibility exists that her interests might be in conflict with the client's.⁵³ Certainly the best and safest course of action for the defense attorney is to encourage the reluctant victim to secure her own attorney for any hearing.

Prior Inconsistent Statements

When a victim has changed her story (she is now saying she tripped and bruised herself, rather than being punched by her boyfriend) the prosecutor may call other witnesses (usually police officers, family members or neighbors) to testify about what she originally told them had happened.⁵⁴ This procedure was followed in 1997 in a case where the domestic assault victim claimed at trial that she no longer remembered being assaulted.⁵⁵ By statute, these "[p]rior inconsistent statement[s] [are] admissible as substantive evidence."⁵⁶ However, this statute is usually inapplicable when the victim has refused to testify because, absent any testimony in the present hearing, there is nothing with which her prior statement is inconsistent.⁵⁷

Excited Utterances

Even when a witness has become totally unavailable by successfully asserting a spousal or Fifth Amendment privilege, the prosecution can often use an excited utterance to salvage an otherwise unwinnable case. "[D]omestic violence and assault cases necessarily involve a startling event" rendering the excited utterance exception applicable.⁵⁸ In fact, one recent survey found that prosecutors used excited utterance statements in 64 percent of domestic violence cases in which the victim did not appear as a witness.⁵⁹ Thus, a frantic 911 call in which a woman reported being knifed by her boyfriend became the lynchpin in a felony domestic assault prosecution after the victim asserted a Fifth Amendment privilege not to testify.⁶⁰ Statements to police officers, friends, family members and neighbors can often amount to excited utterances. The test is whether a particular statement was made under such circumstances so as to indicate trustworthiness. The utterance must have been "made under the immediate and uncontrolled domination of the senses . . . and during a time when consideration of self-interest could not have been brought to bear through reflection or premeditation." "The temporal proximity between the event and the statement need not be simultaneous so long as the statement is provoked by the excitement of the event."⁶¹ Some states have extended the excited utterance exception in domestic violence cases to include statements made to police officers even hours after a domestic violence assault.⁶² So far, Missouri has not stretched its excited utterance exception quite so drastically.⁶³

Statements for Medical Treatment

Even with an uncooperative victim, a prosecutor may still make the case with the testimony of a medical professional who treated the victim for her injuries.⁶⁴ Statements made for medical treatment are an established exception to the hearsay rule.⁶⁵ A prosecutor should get a medical records release from the victim while she is still cooperative and quickly identify and subpoena the necessary witnesses. Absent the victim's cooperation, the same information can be obtained by investigative subpoena.⁶⁶ Conversely, the defense may keep the victim's statements to medical personnel out of evidence if they can convince the trial court that the details of the assault were "irrelevant to the treatment of the . . . injuries."⁶⁷

Prior Testimony

A prosecutor who is concerned that a witness may become uncooperative should consider using a court reporter to make a record of any testimony during early stages of the prosecution, such as bond hearings⁶⁸ or preliminary hearings.⁶⁹ Prior testimony under oath is admissible when a victim later becomes unavailable due to assertion of a testimonial privilege.⁷⁰

Residual Hearsay Exception

The residual exception to the rule against hearsay can be a valuable evidentiary tool in domestic violence prosecutions. It was discussed in Missouri in State v. Bell.⁷¹ The Bell case set out a two-prong test for determining whether hearsay testimony is admissible under the residual hearsay exception: "(1) the necessity of admitting" the evidence is established in that it "pertain[s] to a material fact and that evidence of similar probative value cannot be otherwise obtained by the proponent"; and (2) the reliability and trustworthiness of the evidence is established in that factors such as "motivation for speaking truthfully, the timing of the statement, the basis of declarant's knowledge, the spontaneity of the statement" and its surrounding circumstances tend to support its "reliability and trustworthiness."

Several cases from other jurisdictions have held that statements made by domestic violence victims to police officers or family members shortly after the abuse are admissible under the residual hearsay exception when the victim later refuses to testify.⁷² The exception has also been used to admit a victim's statements to an attorney about the defendant's abuse of her,⁷³ a victim's statements in a petition for an ex parte order of protection,⁷⁴ and a victim's statements to close friends or relatives about threats and beatings inflicted upon her by the defendant.⁷⁵ In each case the court should examine the factors listed in Bell to determine the "circumstantial guarantees of trustworthiness" of the statement.⁷⁶ Even a total recantation by the victim will not generally render a prior hearsay statement inadmissible.⁷⁷

A prosecutor intending to rely upon the residual hearsay exception must give notice of the intent to do so.⁷⁸ Formal notice need not be given, however, when the other side already knows of the opposing party's plan to use it.⁷⁹

A defense lawyer faced with impending residual hearsay testimony from prosecution witnesses may attempt to argue that admission of the hearsay would violate the defendant's Sixth Amendment right to confront witnesses.⁸⁰ This argument will usually fail, however, since the tests for trustworthiness under the residual hearsay exception and the Confrontation Clause "clearly protect similar values" and the "analysis under the two provisions will unavoidably involve similar factors."⁸¹

State of Mind Exception

Prosecutors in several states have used the state of mind hearsay exception to admit statements made by the victim describing the defendant's abuse of her.⁸² Missouri courts have expressly rejected this trend, pointing out that the victim's state of mind is generally irrelevant to any issue in the case.⁸³ An exception exists when the defendant is claiming self-defense, accident or some other issue making her state of mind relevant.⁸⁴

Expert Testimony on Victim's Behavior

A new body of law allows prosecutors to use expert witnesses to explain to the jury why a domestic violence victim might act in a particular way.⁸⁵ Behaviors including failure to leave a violent relationship, a delay in reporting an assault, or a recantation or refusal to testify might seem bizarre and peculiar to a jury absent expert testimony.⁸⁶ While an expert may not "vouch" for the truthfulness of a particular witness, the modern trend allows domestic violence experts to point out that certain behavior is not uncommon for domestic abuse victims. The experience and training qualifying the witness as an expert may have come from being an employee of a women's shelter, a domestic abuse counselor, a psychologist, a physician, or a law enforcement officer with extensive experience in the field.⁸⁷ At least 27 states have admitted or discussed with favor the use of expert testimony on battered women during the prosecution of domestic assault cases.⁸⁸ Favorable rulings in Missouri on the use of expert testimony in child abuse prosecutions⁸⁹ and on behalf of defendants asserting self-defense in battered spouse syndrome cases⁹⁰ suggest that Missouri will soon be added to the list.

Other Crime Evidence

Other crimes evidence is often used in domestic violence cases. Evidence that the defendant has physically abused this particular victim in the past is usually admissible to prove the "animus" of the defendant toward the victim.⁹¹ The test is whether the "probative value [of the prior abuse] outweighs its prejudicial effect." In most cases it does, particularly when the defendant has claimed accident or self-defense.⁹² When a defendant has confessed to the crime, however, the prejudicial effect of showing instances of prior abuse can outweigh its probative value.⁹³

Thorough Investigations

Prosecutors have a duty to assist in the training of law enforcement officers in their jurisdictions.⁹⁴ In the area of domestic violence, they should emphasize the importance of building cases that will withstand eventual non-cooperation by the victim. Investigating officers should routinely obtain written or recorded statements from the victim. They should also secure statements from all other witnesses (family members, children, friends, or neighbors), photograph any injuries (both at the time of the report and a couple of days later when bruises are more noticeable), collect all evidence, photograph signs of struggle at the crime scene, obtain a release for medical records of the victim, immediately secure a copy of a 911 call (before the tape is recycled) and attempt to obtain a confession from the abuser in every case. Homicide detectives routinely build winnable cases without testimony from live victims; officers investigating domestic violence cases can do the same. The better case the police officer puts together, the more likely it is that the defendant will plead guilty, thereby achieving justice while saving the victim from the trauma of testifying.

Diversion Programs

Some prosecutors use a diversion program for certain domestic violence cases.⁹⁵ Under the Domestic Violence Diversion Program in Cape Girardeau County, for example, a domestic violence charge fitting certain criteria will be dismissed and the defendant will be placed on supervised probation through the Missouri Board of Probation and Parole, just as if he had pled guilty.⁹⁶ The conditions of probation will always include anger management and, if applicable, drug and alcohol treatment programs. If the abuser successfully completes the probation term, he ends up with no criminal record whatsoever. This is particularly important to a victim whose spouse would undoubtedly lose his job if he pled guilty to a crime. Significantly, of the 36 defendants placed in this program during its first two years, only one relapsed into assaultive behavior. A defense attorney should always find out if the prosecutor's office in the applicable jurisdiction uses a diversion program in domestic violence cases.

Effect of Conviction Upon Weapons Ownership

In 1996, the Lautenberg Amendment to the Gun Control Act of 1968 made "it unlawful for any person convicted of a misdemeanor crime of domestic violence to possess a [firearm]."⁹⁷ Defendants convicted of traditional assaults of domestic partners prior to the passage of the amendment have been unsuccessful in claiming the law did not apply to them even though their prior crime was not technically classified as "domestic violence" and even though the domestic relationship was not a pleaded nor proven element of the prior crime.⁹⁸ Likewise, courts have uniformly held that it is not an ex post facto violation to convict the abuser of gun possession even when his prior offense occurred before 1997 and he claimed ignorance of the subsequent change in the law.⁹⁹ A suspended imposition of sentence under Missouri law would probably not count as a conviction, however, and would thus not bar subsequent weapons possession.¹⁰⁰ The Lautenberg Amendment also makes it a federal crime for a person "subject to a domestic violence protective order" to possess a firearm.¹⁰¹ Defense counsel should always warn clients about the ramifications of the Lautenberg Amendment.

Conclusion

The prosecution of domestic violence cases in Missouri has continuously evolved over the past decade. With penalties more potent and evidentiary rules refined to make convictions easier to obtain, domestic violence laws have come a long way since 1824, when the Supreme Court of Mississippi noted a husband's right to physically chastise his wife,¹⁰² and since the days when "English common law condoned wife beating" so long as the husband used a "rod not thicker than his thumb."¹⁰³ Although the criminal justice system is still not perfect in its handling of domestic violence cases, it has made substantial improvements during the past few years, both in terms of substantive law and evidentiary developments. The result should be fewer unhappy families in Missouri.

Endnotes

¹ Mr. Swingle is the prosecuting attorney of Cape Girardeau County and a member of the Supreme Court of Missouri Committee on Criminal Procedure. In 1987 he served on the Governor's Task Force on Domestic Violence. He is a 1980 graduate of the University of Missouri– Columbia School of Law. Ms. Woodruff and Ms. Hunter are assistant prosecuting attorneys for Cape Girardeau County. Ms. Woodruff is a 1997 graduate of the University of Missouri–Columbia School of Law. Ms. Hunter is a 1998 graduate of the Thomas M. Cooley School of Law.

² The Tolstoy quote is the first line of the novel Anna Karenina. The Nabokov quote appears at the beginning of the novel Ada. We are not the first to juxtapose these quotes. See David M. Gersten, "Evidentiary Trends in Domestic Violence," 72 Fl. Bar J. 65 (1998).

³ Ninety to 95 percent of domestic violence victims are women. Peter R. Dworkin, "Confronting Your Abuser in Oregon: A New Domestic Violence Hearsay Exception," 37 Willamette L. Rev. 299 (2001), n. 191 and accompanying text. This article will use the pronoun "she" when discussing victims of domestic violence. This conforms with the literature upon this topic.

⁴ Thomas L. Kirsch, II, "Problems in Domestic Violence: Should Victims Be Forced to Participate in the Prosecution of Their Abusers?" 7 Wm. & Mary J. of Women & L. 383, 385 (2001).

⁵ Id.

⁶ State ex rel. Williams v. Marsh, 626 S.W.2d 223, 226 (Mo. banc 1982).

⁷ Lenore E. Walker, The Battered Woman 55 (Harper Colophon Books 1979); "Report of the Missouri Task Force on Gender and Justice," 58 Mo. L. Rev. 485, 498 (1993).

⁸ Casey G. Gwinn & Anne O'Dell, "Stopping the Violence: The Role of the Police Officer and the Prosecutor," 20 W. St. U. L. Rev. 297, 315 (1993).

⁹ Audrey Rogers, "Prosecutorial Use of Expert Testimony in Domestic Violence Cases: From Recantation to Refusal to Testify," 8 Colum. J. Gender & L. 67, 73 (1998); Cheryl Hanna, "The Paradox of Hope: The Crime and Punishment of Domestic Violence," 39 Wm. & Mary L. Rev. 1505, 1518 (1998).

¹⁰ Cheryl Hanna, "No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions," 109 Harv. L. Rev. 1849, 1859 (1996); Marion Wanless, "Mandatory Arrest: A Step Toward Eradicating Domestic Violence, But is it Enough?" 1996 U. Ill. L. Rev. 533, 554 (1996).

¹¹ Section 455.085, RSMo 2000.

¹² Angela Corsilles, "No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?" 63 Fordham L. Rev. 853, 857 (1994).

¹³ Kalyani Robbins, "No-Drop Prosecution of Domestic Violence: Just Good Policy, or Equal Protection Mandate?" 52 Stan. L. Rev. 205, 215-216 (1999); Heather Fleniken Cochran, "Improving Prosecution of Battering Partners: Some Innovations in the Law of Evidence," 7 Tex. J. Women & L. 89, 96 (1997); Donna Wills, "Mandatory Prosecution in Domestic Violence Cases: Domestic Violence: The Case for Aggressive Prosecution," 7 UCLA Women's L. J. 173, 173 (1997); Corsilles, note 12 at 853; No Right to Choose, note 10 at 1853.

¹⁴ Corsilles, note 12 at 874; Gwinn, note 8 at 304.

¹⁵ Mary E. Asmus, Tineke Ritmeester & Ellen L. Pence, "Prosecuting Domestic Abuse Cases in Duluth: Developing Effective Prosecution Strategies From Understanding the Dynamics of Abusive Relationships," 15 Hamline L. Rev. 115, 136-137 (1991); Corsilles, note 12 at 874.

¹⁶ Asmus, note 15 at 123.

¹⁷ Linda G. Mills, "Mandatory Prosecution in Domestic Violence Cases: Intuition and Insight: A New Job Description For the Battered Woman's Prosecutor and Other More Modest Proposals," 7 UCLA Women's L.J. 183 (1997).

¹⁸ Section 455.085, RSMo. 2000. See Dan Walkenhorst, "Domestic Abuse: Curbing a Widespread Epidemic in Missouri," 51 J. Mo. Bar 9 (1995).

¹⁹ Section 565.225, RSMo 2000.

²⁰ Sections 565.072, 565.073 and 565.074, RSMo 2000.

²¹ Section 565.073, RSMo 2000.

²² Section 565.070, RSMo 2000.

²³ Sections 565.072, 565.073 and 565.074, RSMo 2000.

²⁴ See notes 97 to 100 and accompanying text.

²⁵ Mo. Const., art. I, § 32.

²⁶ Section 595.209.1(7), RSMo 2000.

²⁷ The great majority of domestic violence victims are unwilling to testify. Wills, note 13 at 177. "The attrition rate for domestic violence cases has been documented as high as 80 percent in some jurisdictions." Renee L. Rold, "All States Should Adopt Spousal Privilege Exception Statutes," 55 J. Mo. Bar 249 (1999). The prosecutor's office in San Diego prosecutes batterers without the victim's testimony in 60% of its domestic violence cases, obtaining convictions in 88% of them. Gwinn, note 8 at 304. A recent study in one city revealed that as few as "4% of domestic violence victims were actively willing to testify against their abusers." Neal A. Hudders, "The Problem of Using Hearsay in Domestic Violence Cases: Is a New Exception the Answer?" 49 Duke L. J. 1041, 1047, n. 36 (2000).

²⁸ Rold, note 27 at 249; see also State ex rel. Williams v. Marsh, 626 S.W.2d 223, 229 (Mo. banc 1982).

²⁹ Cochran, note 13 at 90.

³⁰ Section 546.260, RSMo 2000. In Missouri, a wife may choose to testify against her husband but, even then, may not reveal "confidential communications."

³¹ Hudders, note 27 at 1044. See also notes 54 to 84 and accompanying text.

³² State v. Benson, 633 S.W.2d 200 (Mo. App. E.D. 1982).

³³ State ex rel. Long v. Askren, 874 S.W.2d 466 (Mo. App. W.D. 1994).

³⁴ Section 491.205, RSMo 2000.

³⁵ State v. Sidebottom, 753 S.W.2d 915 (Mo. banc 1988).

³⁶ Section 476.110(5), RSMo. 2000; State ex rel. T.A.B. v. Corrigan, 600 S.W.2d 87, 93 (Mo. App. E.D. 1980); Stubbs v. State, 441 So.2d 1386 (Miss. 1983).

³⁷ Section 476.120, RSMo 2000.

³⁸ Section 476.110(3), RSMo 2000; Rule 26.02(g).

³⁹ National Prosecution Standards, National District Attorneys Association, § 1.3 (2d ed. 1991).

⁴⁰ Hanna, note 10 at 1866: Gwinn, note 8 at 313.

⁴¹ Robbins, note 13 at 220.

⁴² Rule 26.03; § 545.370, RSMo 2000.

⁴³ Asmus, note 15 at 118.

⁴⁴ Rule 4, Preamble: A Lawyer's Responsibilities.

⁴⁵ Bruce J. Winick, "Applying the Law Therapeutically in Domestic Violence Cases," 69 UMKC L. Rev. 33, 67-90 (2000).

⁴⁶ Rule 4, Preamble: A Lawyer's Responsibilities; Winick, note 45 at 67-90.

⁴⁷ In re Storment, 873 S.W.2d 227 (Mo. banc. 1994) (lawyer disbarred for counseling client in divorce action to testify untruthfully).

⁴⁸ Rule 4-3.4(b) ("A lawyer shall not . . . counsel or assist a witness to testify falsely."); Storment, 873 S.W.2d at 231 ("Suspension is appropriate when the lawyer knows that . . . material information is improperly being withheld.").

⁴⁹ Matter of Geisler, 614 N.E.2d 939 (Ind. 1993). See Annotation, Fabrication or Suppression of Evidence as Ground of Disciplinary Action Against Attorney, 40 A.L.R. 3d 169 (1971).

⁵⁰ North Carolina State Bar v. Graves, 274 S.E.2d 396 (N.C. App. 1981).

⁵¹ United States v. Fayer, 523 F.2d 661 (2nd Cir. 1975).

⁵² American Bar Association Standards for Criminal Justice, § 4-58 & 59 (2nd ed. 1986); see also McNeal v. Hollowell, 481 F.2d 1145 (5th Cir. 1973) (defendant's lawyer entitled to suggest to witness and witness's counsel that witness might want to exercise Fifth Amendment privilege).

⁵³ Charles W. Wolfram, Modern Legal Ethics 616 (1986); Annotated Model Rules of Professional Conduct, R. 4.2 at 414. See also Rule 4-3.4(f).

⁵⁴ State v. Clark, 926 P.2d 194 (Haw. 1996).

⁵⁵ State v. Archuleta, 955 S.W.2d 12 (Mo. App. W.D. 1997).

⁵⁶ Section 491.074, RSMo 2000.

⁵⁷ In one recent case, however, the victim did not testify, but his preliminary hearing testimony was admitted and then his earlier tape-recorded statement to a police officer was introduced as a prior inconsistent statement. State v. Neely, 979 S.W.2d 552 (Mo. App S.D. 1998).

⁵⁸ Jeffrey S. Siegel, "Timing Isn't Everything: Massachusetts' Expansion of the Excited Utterance Exception in Severe Criminal Cases," 79 B. U. L. Rev. 1241, 1259 (1999). See Salley v. State, 25 S.W.3d 878 (Tex. App. 2000) (police respond to domestic disturbance call within two minutes and victim, crying and disheveled, tells them her boyfriend just hit her); Commonwealth v. Napolitano, 678 N.E.2d 447 (Mass. App. 1997) (battered wife told neighbors about the assault within 10 minutes); Reyes v. State, 48 S.W.3d 917 (Tex. App. 2001) (officer arrived within "seven minutes of the 911" call and victim said her husband had just hit her); Tajeda v. State, 905 S.W.2d 313 (Tex. App. 1995) (wife told officer that husband had hit her immediately upon officer's arrival at scene); State v. Campbell, 539 N.W.2d 491 (Iowa App. 1995) (wife came to station in robe and slippers, crying, and reported husband's abuse); U.S. v. Phelps, 168 F.3d 1048 (8th Cir. 1999) (domestic assault victim's excited utterances made to police 15 to 30 minutes after assault).

⁵⁹ Cochran, note 13 at 108.

⁶⁰ State v. Edwards, 31 S.W.3d 73, 78 (Mo. App. W.D. 2000).

⁶¹ Edwards, 31 S.W.3d at 78. See also State v. Stafford, 23 N.W.2d 832 (Iowa 1946) (statements about beating still contemporaneous when made 14 hours after brutal beating after victim had been wandering, bruised and bloody, since the assault).

⁶² Siegel, note 58 at 1267; Gersten, note 2 at 65.

⁶³ State v. Kemp, 919 S.W.2d 278 (Mo. App. W.D. 1996) (wife's statements to responding police about husband's assault upon her not excited utterance).

⁶⁴ State v. Campbell, 539 N.W.2d 491 (Iowa App. 1995) (wife's statements to treating nurse); State v. Evans, 992 S.W.2d 275, 283 (Mo. App. S.D. 1999) (wife's statements to her treating psychiatrist).

⁶⁵ 22A William A. Schroeder, Missouri Practice, § 803(4).1 (2d ed. 2000).

⁶⁶ Section 56.085, RSMo Supp. 2001. See H. Morley Swingle, "Criminal Investigative Subpoenas: How to Get Them, How to Fight them," 54 J. Mo. Bar 15 (1998).

⁶⁷ Gersten, note 2 at 66.

⁶⁸ State v. Kee, 956 S.W.2d 298 (Mo. App. W.D. 1997).

⁶⁹ State v. Franks, 685 S.W.2d 845 (Mo. App. E.D. 1985).

⁷⁰ Id. at 848.

⁷¹ 950 S.W.2d 482 (Mo. banc 1997). See generally Todd M. Thornhill, "Declarations of the Dead: Hearsay's Residual Exception Comes to Missouri," 56 J. Mo. Bar 14 (2000) (taking the position that Missouri's recognition of the residual hearsay exception is already a done deal); Janusz Z. Puzniak, "Will Missouri Adopt the Residual Exception to the Hearsay Rule?" 63 Mo. L. Rev. 615 (1998) (taking the position that the question of whether Missouri has adopted the residual hearsay exception has not been fully answered).

⁷² United States v. Bradley, 145 F.3d 889 (7th Cir. 1998) (victim's statements to officer two hours after assault); State v. Maestas, 584 P.2d 182 (N.M. Ct. App. 1978) (victim's hearsay statements to sister-in-law three hours after assault and to sister 15 hours afterward); State v. Beam, 292 N.W.2d 302 (Neb. 1980) (deputy found victim sitting alone in car, crying, and she told him her husband just beat her up); Higgs v. State, 351 S.E.2d 448 (Ga. 1987) (woman gave statement to police on same day she saw her ex-husband shoot her new boyfriend to death).

⁷³ State v. Beam, 292 N.W.2d 302 (Neb. 1980).

⁷⁴ State v. Grube, 531 N.W.2d 484 (Minn. 1995); Camp v. State, 991 S.W.2d 611 (Ark. App. 1999).

⁷⁵ State v. Hayes, 502 S.E.2d 853 (N.C. App. 1998); State v. Triplett, 340 S.E.2d 736 (N.C. 1986).

⁷⁶ United States v. Bradley, 145 F.3d 889 (7th Cir. 1998).

⁷⁷ Lovejoy v. U. S., 92 F.3d 628 (8th Cir. 1996); U. S. v. Renville, 779 F.2d 430, 441 (8th Cir. 1984); see also Dworkin, note 3 at 303-04.

⁷⁸ State v. Bailey, 365 S.E.2d 46, 49 (W. Va. 1987).

⁷⁹ 29 Am. Jur. 2d Evidence, § 686 (1994).

⁸⁰ Moseley v. Commonwealth, 960 S.W.2d 460 (Ky. 1997). See generally White v. Illinois, 502 U.S. 346 (1992); Idaho v. Wright, 497 U.S. 805 (1990); Lee v. Illinois, 476 U.S. 530 (1986); Ohio v. Roberts, 448 U.S. 56 (1980).

⁸¹ U. S. v. Chapman, 866 F.2d 1326, 1332 (11th Cir. 1989). See also State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995); State v. Tyler, 485 S.E.2d 599, 605 (N.C. 1997); State v. Hayes, 202 S.E.2d 853, 867 (N.C. App. 1998); People v. Hernandez, 78 Cal. Rptr. 2d 909, 912 (Cal. App. 1998); Tejeda v. State, 905 S.W.2d 313 (Tex. App. 1995); U. S. v. Bradley, 145 F.3d 889 (7th Cir. 1998).

⁸² Gersten, note 2 at 66.

⁸³ State v. Revelle, 957 S.W.2d 428 (Mo. App. S.D. 1997); State v. Post, 901 S.W.2d 231 (Mo. App. E.D. 1995).

⁸⁴ Id.

⁸⁵ Paula Finley Mangum, "Reconceptualizing Battered Women Syndrome Evidence: Prosecution Use of Expert Testimony on Battering," 19 B.C. Third World L.J. 593 (1999); Rogers, note 9.

⁸⁶ People v. Gadlin, 92 Cal. Rptr. 2d 890 (Cal. App. 2000) (recantation; cycle of violence; reconciliation with abuser); State v. Lafferty, 9 P.3d 1132 (Colo. App. 1999) (recantation; cycle of violence; remaining in a violent relationship); Commonwealth v. Goetzendanner, 679 N.E.2d 240 (Mass. App. 1997) (recantation; vacillating behavior of victim toward defendant); Scugoza v. State, 949 S.W.2d 360 (Tex. App. 1997) (recantation; cycle of violence); State v. Clark, 926 P.2d 194 (Haw. 1996) (recantation); State v. Searles, 680 A.2d 612 (N. H. 1996) (minimization of injuries); People v. Ellis, 650 N.Y.S.2d 503 (N.Y. 1996) (recantation; minimization); State v. Cababag, 850 P.2d 716 (Haw. App. 1993) (recantation, self-blame; minimization of assault); State v. Borelli, 629 A.2d 1105 (Conn. 1993) (recantation; cycle of violence; learned helplessness); Arcoren v. U. S., 929 F.2d 1235 (8th Cir. 1991) (recantation; cycle of violence); State v. Frost, 577 A.2d 1282 (N. J. Super. Ct.. App. Div. 1990) (delay in reporting; remaining in abusive relationship). Cf. People v. Gomez, 85 Cal. Rptr. 2d 101 (Cal. App. 1999) (insufficient foundation to establish relevance of expert testimony).

⁸⁷ Clark, note 86 (safe house director); Goetzendanner, note 86 (executive director for prevention of domestic violence office); Borrelli, note 86 (sociologist); Arcoren, note 86 (psychologist); Frost, note 86 (director of clinical services at women's resource and survival center); Gadlin, note 86 (licensed clinical social worker); No Right to Choose, note 10 at 1905 (police officer).

⁸⁸ Mangum, note 85 at 611-12.

⁸⁹ State v. Silvey, 894 S.W.2d 662 (Mo. banc 1995) (expert testified that victim "exhibited several behaviorial indicators consistent with" a sexually abused child); State v. Matthews, 37 S.W.3d 847 (Mo. App. S.D. 2001) (expert testified about typical behaviors of child abuse victim, such "as fears, phobias, depression, somatic complaints, eating problems, inability to trust, and guilt or shame."); State v. Bowler, 892 S.W.2d 717 (Mo. App. E.D. 1994) (expert testified that a victim's "delay in reporting" of child abuse is "not unusual"); State v. Calvert, 879 S.W.2d 546 (Mo. App. W.D. 1994) (expert testified that it was not unusual for child victims of sexual abuse to recant or delay reporting); State v. Williams, 858 S.W.2d 796 (Mo. App. E.D. 1993) (expert testimony that children lie about sexual abuse only 3% of the time was improper as vouching for the victim's credibility).

⁹⁰ Section 563.033, RSMo 2000. State v. Pisciotta, 968 S.W.2d 185 (Mo. App. W.D. 1998).

⁹¹ State v. Wright, 30 S.W.3d 906 (Mo. App. E.D. 2000); State v. Smothertma, 993 S.W.2d 525 (Mo. App. S.D. 1999); State v. Andrich, 943 S.W.2d 841 (Mo. App. E.D. 1997); State v. Jacobs, 939 S.W.2d 7 (Mo. App. W.D. 1997).

⁹² State v. Danikas, 11 S.W.3d 782 (Mo. App. W.D. 1999); State v. Martinelli, 972 S.W.2d 424 (Mo. App. E.D. 1998).

⁹³ State v. Wallace, 943 S.W.2d 721 (Mo. App. W.D. 1997).

⁹⁴ National Prosecution Standards, National District Attorneys Association, § 20.2 (2d ed. 1991).

⁹⁵ A diversionary program is one "designed to utilize alternatives to incarceration undertaken under the supervision of the" Board of Probation and Parole prior to any guilty plea or sentencing. Section 217.650(3), RSMo 2000. The guidelines for a diversion program are set out in Section P4-1 of the Department of Corrections Policy and Procedures Manual. See Winick, note 45 at 88-90; Paradox of Hope, note 9 at 1519, 1526 and 1576.

⁹⁶ The written guidelines for the Cape Girardeau County Domestic Violence Diversion Program are available from the Cape Girardeau County Prosecuting Attorney's Office, and may also be found at the web page for the prosecutor's office, at http://www.showme.net/CapeCounty/pa/index.htm.

⁹⁷ 18 U.S.C. § 922(g)(9). See Jodi L. Nelson, "The Lautenberg Amendment: An Essential Tool for Combating Domestic Violence," 75 N.D. L. Rev. 365 (1999).

⁹⁸ U. S. v. Meade, 175 F.3d 215 (1st Cir. 1999); U. S. v. Smith, 171 F.3d 617 (8th Cir. 1999).

⁹⁹ U. S. v. Mitchell, 209 F.3d 319 (4th Cir. 2000).

¹⁰⁰ U.S. v. Willis, 106 F.3d 966 (11th Cir. 1997); State v. Lynch, 679 S.W.2d 858 (Mo. banc 1984); State v. Prell, 35 S.W.3d 447 (Mo. App. W.D. 2000).

¹⁰¹ 18 U.S.C. § 922(g)(8); U. S. v. Reddick, 203 F.3d 767 (10th Cir. 2000); U. S. v. Bostic, 168 F.3d 718 (4th Cir. 1999).

¹⁰² Bradley v. State, 1 Miss. 156 (1824); Asmus, note 15 at 116.

¹⁰³ Pat Campbell, "Adult Abuse in Missouri: The Beating Continues," 58 UMKC L. Rev. 257, 258 (1990).