Can there reach a point where a witness, who refuses to testify against her live-in boyfriend charged with beating her nearly to death, becomes “unavailable” such that the prosecution can use her videotaped grand jury testimony at trial?  According to this  New York Law Journal article, that is now the case in New York, even when the “victim” testifies that she has no fear of the defendant and chooses not to pursue charges, with the First Department’s decision in People v. Byrd.

Jimmy Byrd was charged with beating his girlfriend, Jill J., and refusing to bring her to the hospital for treatment.  She eventually went to the hospital 6 days later, where a doctor found that she would have died had she not received treatment.

While Jill J. gave videotaped testimony from the hospital to the grand jury, she subsequently refused to cooperate against Byrd.  The prosecution decided that it was not going to let this happen, and moved to allow her videotaped testimony to come into evidence at Byrd’s trial.

During the hearing, Jill J. contended that she had chosen of her own accord to forgive Mr. Byrd and that he needed treatment in lieu of jail time. But Jill J. acknowledge that Mr. Byrd had violated an order of protection and called her on “many” occasions from prison.

The prosecution, in turn, called witnesses who contradicted Jill J.’s testimony that she did not fear Mr. Byrd. Ann Burgess, an expert on battered-person syndrome, testified that it is common for abuse victims, who are controlled and dependent on their batterers, to retract reports of abuse and later refuse to cooperate.

Justice James Yates held that the prosecution had proven that Jill J. was “unavailable” to testify as a result of the battered woman syndrome and permitted the taped testimony, meaning that the defense would be unable to confront the witness against him.

The Appellate Division, First Department, affirmed the conviction.  Relying on the expert testimony of Professor Ann Burgess, the court concluded that the defendant maintained “coercive control” over Jill J. by calling her constantly from jail, and thus caused her to refuse to testify against him, giving rise to her “unavailability”.

Justice Moskowitz wrote: “[W]hen the People can prove by clear and convincing evidence that a defendant has procured the witnesses’s unavailability ‘through violence, threats, or chicanery,’ the defendant forfeits the constitutional right to confrontation as well as the protection that the rules against the admission of hearsay would have afforded him or her.”

While the degree of harm done to Jill J. makes this case quite an extreme example of “battered woman syndrome,” this decision takes a huge leap in stretching the concept of unavailability to a very dangerous place.  Essentially, the case was tried backward, with the assumption that the crime had been committed, that Jill J. was a battered woman before any crime had been found, and giving monumental credence to the generic conclusions of the expert as to a particular individual’s motives and psychological state.

While the facts of this case are particularly egregious, this is the type of decision that will filter down to garden-variety spousal assaults, where the use of battered woman syndrome is not truly involved but used to overcome the recalcitrant witness and convict people without confrontation, cross-examination and in defiance of a witness who refuses to pursue the case. 

Once the prosecution is no longer required to use living witnesses to testify as to facts, and need only trot out an expert to “explain” the crime based upon assumed facts, one has to wonder how it would be possible to defend.

The problem is that battered woman syndrome has been a double edge sword, with the defense using it to justify conduct by woman against abusive husbands and boyfriends in other cases.  This time, it’s come back to bite the defense in the butt.  It’s hard, on the one hand, to depend on this “scientific” testimony in defense of an indictment, and yet dispute it when used to conclude that a witness has been rendered psychologically unavailable as a result of it.

It’s unlikely that anyone will cry for Jimmy Byrd, but should this new “forfeiture” doctrine find its way into every domestic abuse case when a spouse or girlfriend chooses not to testify, it may do enormous harm to the concept of a trial and fundamentally alter the dynamic of how these cases are prosecuted and tried.  This has the potential to be a very dangerous decision.