Byers: What Are The Odds

BYERS FINAL (DO NOT DELETE)
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What Are the Odds: Applying the

Doctrine of Chances to DomesticViolence Prosecutions in Massachusetts
MICHELLE BYERS*
ABSTRACT
Every day in Massachusetts, almost eighteen hundred victims seek

help surviving domestic violence. Every year, over seven million women
and men are victims of domestic violence across the United States. Many of
these women and men are victims of continuing abuse by the same
perpetrator. It is difficult to successfully prosecute perpetrators of domestic
violence because the offense is intertwined with familiar and emotional
relationships. The legal tools prosecutors have to combat domestic violence
are limited and stand in the way of presenting a complete picture of the
violence that goes on in an abusive domestic relationship.
In prosecuting domestic-violence cases, the Massachusetts criminal
justice system needs the Doctrine of Chances. The Doctrine of Chances
provides prosecutors a non-character theory of logical relevance that
facilitates admission of prior acts of domestic violence to increase the
probability that the instant crime cannot be explained away by accident or
false accusation. Recognizing that domestic violence is cyclical in nature
furthers what should be the goal of Massachusetts legal system: legal
protections for domestic-violence victims that are equal to or greater than
the protections afforded to defendants. If Massachusetts were to adopt the
Doctrine of Chances, more victims of domestic violence would be provided
the help they need and it would bring Massachusetts to the forefront of the
nation as a leader in combating domestic violence.
* Candidate for Juris Doctor, New England Law | Boston (2012). B.S., Criminal Justice,
magna cum laude, Northeastern University (2006). I would like to thank my inspiration for
this Note: those who have survived, and those who have lost, the fight against domestic
violence.
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Knowledge of facts is always a matter of probabilities.1
INTRODUCTION
very year, over seven million women and men are victims of
domestic violence across the United States. 2 Many of these women
and men are continually abused by the same perpetrator. 3
Complicated in nature, domestic violence is intertwined with familial and
emotional relationships making it difficult to successfully prosecute
perpetrators of these crimes. 4 Massachusetts alone struggles to protect
almost eighteen hundred victims of domestic violence on a daily basis. 5
The legal tools prosecutors have to combat domestic violence are limited.6
This hamstrings prosecutors who must overcome hurdles of bias,
reluctance, and lack of corroboration when bringing any meaningful
prosecution of domestic violence.7 Even then, evidentiary rules can stand
in the way of presenting a full and complete picture of the violence that
goes on in an abusive domestic relationship. 8
Massachusetts needs to recognize that domestic violence is as
prevalent now as they were when first acknowledged in the 1970s.9
Massachusetts must provide a framework to effectively fight this intimate
1
IA JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 37.4 (Peter Tillers ed.,
1983), reprinted in PETER TILLERS, MODERN THEORIES OF RELEVANCY 1030 (1983).
2 See NATL CTR. FOR INJURY PREVENTION & CONTROL, CTRS. FOR DISEASE CONTROL &
PREVENTION, UNDERSTANDING INTIMATE PARTNER VIOLENCE FACT SHEET 1 (2011) [hereinafter
UNDERSTANDING IPV], available at http://www.cdc.gov/violenceprevention/pdf/IPV_factsheeta.pdf.
3 See PATRICIA TJADEN & NANCY THOENNES, NATL INST. OF JUSTICE & CTRS. FOR DISEASE
CONTROL & PREVENTION, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER
VIOLENCE: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 39 (2000)
[hereinafter EXTENT, NATURE, AND CONSEQUENCES OF IPV], available at http://www.ncjrs.gov/
pdffiles1/nij/181867.pdf.
4
See Jennice Vilhauer, Essay, Understanding the Victim: A Guide to Aid in the Prosecution of
Domestic Violence, 27 FORDHAM URB. L.J. 953, 956-60 (2000).
5 NATL NETWORK TO END DOMESTIC VIOLENCE, `11 DOMESTIC VIOLENCE COUNTS:
MASSACHUSETTS SUMMARY (2011), available at http://www.nnedv.org/docs/Census/DVCounts
2010/DVCounts10_StateSummary_MA_Color.pdf.
6
See Vilhauer, supra note 4, at 955-56; see infra Part 1.D.1.

See infra Part C.
8 See MASSACHUSETTS GUIDE TO EVIDENCE 404(b) (2011).
9 See generally LENORE E. WALKER, THE BATTERED WOMAN (1979) [hereinafter WALKER I]
(describing how societal awareness of spousal abuse has increased and that a battered
womans decision to remain in an abusive relationship is the product of complex
psychological and sociological reasons).
7
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2012 D o c t r i n e o f C h a n c e s a n d D o m e s t i c - V i o l e n c e P r o s e c u t i o n s
553
type of crime.10 Other states have stepped up to the challenge. 11 In

prosecuting domestic-violence cases, the Massachusetts criminal justice
system needs to adopt the Doctrine of Chances (Doctrine).12 The Doctrine
is complementary to current Massachusetts case law and the Massachusetts
Guide to Evidence Section 404(b)s prohibition of character evidence, and it
would provide a non-character theory of logical relevance13 to admit
evidence of prior acts of domestic violence to assist in successfully
prosecuting domestic-violence cases.14 Ultimately, if Massachusetts adopts
the Doctrine, more victims of domestic violence would get the help they
need, and Massachusetts would become a leader in combating domestic
violence.15
Part I describes the general history of domestic violence, including the
problems associated with prosecuting the offense in Massachusetts and
surveys other states responses to domestic-violence prosecutions in order
to demonstrate the feasibility of change in the Commonwealth. Part II
argues that Massachusetts should adopt the Doctrine by explaining what
the Doctrine is, why the Doctrine does not qualify as prohibited character
evidence, and how the Doctrine relates to domestic violence. Part III
outlines the framework of the Doctrines application to Massachusetts
domestic-violence cases and explains how the Doctrine simultaneously
protects defendants rights and supports victims rights.
I. Domestic Violence in the United States
A. What Is Domestic Violence?
Domestic violence is generally described as a pattern of abusive
behavior in any relationship that is used by one partner to gain or maintain
power and control over another intimate partner.16 Domestic violence is
usually discussed in the context of intimate partner violence (IPV), which
occurs between two people in a close relationship.17 IPV occurs against men
10 See Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence

Prohibition by Upholding a Non-Character Theory of Logical Relevance, the Doctrine of Chances, 40
U. RICH. L. REV. 419, 434 (2006) [hereinafter Imwinkelried I]; infra Part II.
11
See, e.g., CAL. EVID. CODE 1109 (West 2009); ALASKA R. EVID. 404(b)(4) (2010).
See 2 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 302 (James H.
Chadbourn ed., 1979); Imwinkelried I, supra note 10, at 434; infra Parts II-III.
12
13
Imwinkelried I, supra note 10, at 422, 434.

See WIGMORE, supra note 12, 302; Imwinkelried I, supra note 10, at 434; infra Part III.
15 See infra Part III.
16 Office on Violence Against Women, Domestic Violence, U.S. DEPT OF JUSTICE (May 2011)
[hereinafter Domestic Violence], http://www.ovw.usdoj.gov/domviolence.htm.
17 UNDERSTANDING IPV, supra note 2. Domestic violence encompasses more than IPV;
parents, siblings, and grandparents, regardless of age or gender, perpetrate violence. See
14
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and women in both homosexual and heterosexual relationships.18

However, statistics show women are significantly more likely to be victims
of IPV than men.19 Violence against women is primarily perpetrated by
their male partners.20 IPV can occur in a number of ways: physical abuse,
sexual abuse, emotional abuse, economic abuse, psychological abuse, and
threats.21 Studies show that verbal abuse, jealous or possessive behavior, or
isolation from friends and family are interrelated with physical abuse.22
This increasing pattern of violent behavior has been deemed systematic
terrorism23 and gives credibility to the Cycle of Violence Theory.24
RICHARD L. DAVIS, DOMESTIC VIOLENCE: INTERVENTION, PREVENTION, POLICIES, AND

SOLUTIONS 17 (2008). Critics of the term intimate partner violence suggest the label does not
recognize the gendered nature of this serious and prevalent form of victimization against
women. JOANNE BELKNAP, THE INVISIBLE WOMAN 268 (2d ed. 2000). This Note focuses on
problems of, and proposed solutions to, the prosecution of IPV crimes.
18 Domestic Violence, supra note 16. Limited research has concluded that same-sex couples
are as violent as heterosexual couples. EXTENT, NATURE, AND CONSEQUENCES OF IPV, supra
note 3, at 29.
19 PATRICIA TJADEN & NANCY THOENNES, NATL INST. OF JUSTICE & CTRS. FOR DISEASE
CONTROL & PREVENTION, PREVALENCE, INCIDENCE, AND CONSEQUENCES OF VIOLENCE AGAINST
WOMEN: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 6 (1998)
[hereinafter PREVALENCE, INCIDENCE, AND CONSEQUENCES], available at http://www.ncjrs.gov
/pdffiles/172837.pdf. According to a study sponsored by the National Institute of Justice
(NIJ) and the Centers for Disease Control (CDC) first reported in 1998, approximately 1.5
million women and 834,700 men were victims of rape or physical assault by an intimate
partner annually in the United States. Id. at 2. The overall number of intimate partner rape or
physical assault victimizations was much higher for women than men, with 4.8 million
perpetrated against women and 2.9 million against men. EXTENT, NATURE, AND
CONSEQUENCES OF IPV, supra note 3, at iii. Because many victims are victimized more than
once, the number of intimate partner victimizations exceeds the number of intimate partner
victims annually. Id. (emphasis added). A little over half of the women who experienced
intimate partner rape and two-thirds of the women who experienced intimate partner
physical assault reported repeat victimizations by the same partner. Id. at 39.
20
PREVALENCE, INCIDENCE, AND CONSEQUENCES, supra note 19, at 8. Seventy-six percent of

women, compared with eighteen percent of men, were raped, physically assaulted, or both by
a current or former husband, cohabitating partner, or date. Id. at 2, 8. Because of the disparity
between male and female victims as well as homosexual and heterosexual victims, this Note
will refer to the batterer with masculine pronouns and to the victim with feminine pronouns
for textual clarity.
21 CLARE DALTON & ELIZABETH M. SCHNEIDER, BATTERED WOMEN AND THE LAW 58 (2001);
Domestic Violence, supra note 16; UNDERSTANDING IPV, supra note 2.
22
23
24
EXTENT, NATURE, AND CONSEQUENCES OF IPV, supra note 3, at 56.

Id.
See WALKER I, supra note 9, at 55.
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555
B. The Cycle of Violence Theory

IPV occurs in three phases known collectively as the Cycle of
Violence (Cycle).25 The Cycle consists of the tension-building phase, the
acute-battering incident, and the loving-contrition phase.26 The phases do
not necessarily present themselves equally, and one Cycle can take hours
or sometimes years to complete.27 Situational events can affect the timing of
each stage, but it is almost impossible to predict how long a couple will
take to complete one Cycle.28 Moreover, the Cycle can reoccur.29 As the
Cycle continues or repeats, the tension-building phase becomes more
common, while the loving-contrition phase occurs with less regularity over
time.30
1.
The Tension-Building Phase
The tension-building phase consists of a gradual escalation of tension

displayed by discrete acts causing increased friction . . . .31 This stage sets
into motion the events that lead to the acute-battering incident.32 In the
tension-building stage, the abuser begins name calling, becomes angry or
expresses dissatisfaction with the victims behavior, or commits minor
battering acts33 in an effort to control the victim.34 The batterer may seek to
isolate the victim, which may make the victim more susceptible to the
batterers control.35 In response to the tension, the victim feels as those she
is walking on egg shells,36 and she begins anger-reduction techniques in
an effort to keep the abuser calm. 37 These techniques can range from
25
Id.
LENORE E. A. WALKER, THE BATTERED WOMAN SYNDROME 91 (3d ed. 2009) [hereinafter
WALKER II].
26
27 Cycle of Violence, DOMESTICVIOLENCE.ORG, http://www.domesticviolence.org/cycle-ofviolence (last visited Mar. 12, 2012).

28 See WALKER I, supra note 9, at 55.
29 See WALKER II, supra note 26, at 91.
30 Id. at 95; Cycle of Violence, supra note 27. One study by a leading authority found that
between the first and last incidents of abuse, the tension-building phase increased from fiftysix percent to seventy-one percent, whereas the loving-contrition phase decreased from sixtynine percent to forty-two percent. WALKER II, supra note 26, at 95; see also BELKNAP, supra note
17, at 276.
31
32
33
34
35
36
37
WALKER II, supra note 26, at 91.

See Cycle of Violence, supra note 27.
See WALKER I, supra note 9, at 56; Cycle of Violence, supra note 27.
Vilhauer, supra note 4, at 954.
Id.
Cycle of Violence, supra note 27, at 91.
WALKER II, supra note 26.
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blaming outside forces, like alcohol or problems at work, to accepting guilt

for the batterers explosive behavior.38 The victim usually defaults to either
denying the wrongfulness of the batterers actions or to rationalizing that
she must deserve the abuse.39
2.
The Acute-Battering Phase
The acute-battering phase results from the discharge of the tensions

that have built up during phase one.40 The batterers loss of control and
major destructive behavior signals the transition to the acute-battering
phase.41 In the early stages of the relationship, the first acute-battering
incident is usually not severe.42 In these early incidents the victim may not
realize the danger of the relationship.43 However, the most violent abuse
occurs in this phase, where the batterer releases an onslaught of verbal and
physical attacks.44 This phase ends when the batterer decides to stop
abusing the victim,45 though why the batterer finally stops is largely
unknown.46
3.
The Loving-Contrition Phase
The loving-contrition phase follows the acute-battering incident and

usually involves the batterer apologizing, bestowing presents, and
promising that the violence will never happen again. 47 This phase gives the
victim positive reinforcement that the relationship is worth continuing
because she thinks that the batterer will change his behavior. 48 This phase
can also include instances where the batterer pretends the abuse never
happened, denies that the abuse was serious, or blames the victim for the
abuse.49 The batterer may actually believe that he will never hurt the victim
again or that he has taught the victim a lesson she will not forget, thus
negating the need for further abuse.50 This phase completes the incident of
38
39
40
41
42
43
44
45
46
47
48
49
50
WALKER I, supra note 9, at 56-57.

Id. at 56.
Id. at 59.
Id.
Id.
Id.
WALKER I, supra note 9, at 61.
WALKER II, supra note 26, at 94; Cycle of Violence, supra note 27.
Cycle of Violence, supra note 27.
WALKER I, supra note 9, at 65-66.
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557
victimization.51 Prosecution of domestic abuse usually commences during

this phase, where the batterer and the victim have made amends or are at
least experiencing relief from the violence.52
C. Challenges in Prosecuting Domestic Violence
Even with the prevalence and awareness of domestic violence,
prosecutors still face many hurdles in bringing batterers to justice.53
Common issues facing Massachusetts prosecutors include: reluctant
victims, Battered Womens Syndrome, victim-credibility issues, the
Confrontation Clause, and Massachusetts Proposed Rule of Evidence
404(b).54
1.
Reluctant Victims
A major challenge to successfully prosecuting domestic-violence is that

victims are frequently reluctant to testify.55 Prosecution usually occurs
during the loving-contrition phase of the Cycle; accordingly, victims
typically refuse to testify against a batterer because they have reconciled or
the victim believes it was an isolated incident.56 Victims frequently
experience cultural or familial pressure57 or intimidation and threats from
the batterer, leading victims to recant their statements to the police.58
A victim may also refuse to testify for fear of losing her children or her
financial stability.59 Victims may face hurdles obtaining financial assistance
if they are still married to the batterer or if they do not know where to seek
help.60 Often the batterer is the victims only source of income and support,
which is conducive to the batterers control over the victim.61 Victims also
51
Id. at 65.
53 Andrea M. Kovach, Note, Prosecutorial Use of Other Acts of Domestic Violence for Propensity
Purposes: A Brief Look at Its Past, Present, and Future, 2003 U. ILL. L. REV. 1115, 1126.
52
54
See infra Part I.C.1-5.

Pamela Vartabedian, Comment, The Need to Hold Batterers Accountable: Admitting Prior
Acts of Abuse in Cases of Domestic Violence, 47 SANTA CLARA L. REV. 157, 160 (2007).
55
56
Id.
Jay A. Abarbanel, Comment, In Light of Crawford v. Washington and the Difficult Nature
of Domestic Violence Prosecutions, Maryland Should Adopt Legislation Making Admissible Prior Acts
of Domestic Violence in Domestic Violence Prosecutions, 39 U. BALT. L. REV. 467, 474 (2010);
Kovach, supra note 53.
57
58
See Kovach, supra note 53, at 1126.

Abarbanel, supra note 57, at 474; Aviva Orenstein, Sex, Threats, and Absent Victims: The
Lessons of Regina v. Bedingfield for Modern Confrontation and Domestic Violence Cases, 79
FORDHAM L. REV. 115, 144 (2010).
59
60
61

See Abarbanel, supra note 57, at 474.
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refuse to testify because they are embarrassed or humiliated about the

abuse.62 Ultimately, a victims reluctance or refusal to testify significantly
hampers a prosecutors ability to prosecute the crime because victims are
often the only witnesses.63
2.
Battered Womens Syndrome
Battered Womens Syndrome (BWS) can profoundly affect the

successful prosecution of an IPV crime. 64 BWS symptoms were established
on the same theoretical basis as Post Traumatic Stress Disorder (PTSD).65
PTSD is the development of characteristic symptoms following exposure
to an extreme traumatic stressor involving direct personal experience of an
event that involves actual or threatened death or serious injury.66 PTSDs
diagnostic symptoms include: [(1)] intrusive recollections of the traumatic
event(s); [(2)] hyperarousal and high levels of anxiety; [and (3)] avoidance
behavior and emotional numbing.67 BWS includes PTSDs symptoms and
adds three of its own: (1) [d]isrupted interpersonal relationships; (2)
issues with body image; and (3) [s]exual intimacy issues.68 The primary
difference between PTSD and BWS is that most events leading to PTSD are
one-time, unexpected catastrophes.69 BWS, on the other hand, results from
reoccurring [p]hysical, sexual, and psychological abuse . . . in families or
with intimate partners.70 BWS triggers different coping strategies than
PTSD, and these coping strategies serve as alternatives to physical escape. 71
These alternatives include minimization, denial, repression, and
dissociation, all of which are avoidance responses that protect the woman
from experiencing the full blown trauma response.72
62
Orenstein, supra note 59, at 144.

64 Kovach, supra note 53, at 1126.
65 WALKER II, supra note 26, at 41.
66 AM. PSYCHIATRIC ASSN, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
463 (4th ed. 2000).
63
67
68
69
70
71
72

Id.
See id. at 43.
Id.
Id. at 44.
Id.
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559
Although there is empirical support for BWS,73 for many years it was
not an accepted theory for understanding the plight of battered women.74
In both BWS and PTSD, victims may experience amnesia as a form of
avoidance,75 as they cannot remember the details of frequent abuse. 76 BWS
helps explain why victims delay reporting the abuse and why they remain
with the batterer after the abuse occurs.77 BWS can hinder the prosecutions
case since the victim is unable to testify78 or because the fact finder will not
accept BWS as a valid medical condition.79
3.
Bias Against, and Credibility of, the Victim
Another major area of concern in prosecuting domestic violence is bias

towards the victim.80 For lawyers, [b]ias and ignorance have had a
substantial impact on the way [they] have understood and presented
arguments based on battered womens experiences.81 Most lawyers are
aware of the problem but are unfamiliar with its intricacies.82 This
unfamiliarity frustrates potential victim cooperation if the victim does not
feel understood or believed.83
Battered women are also frustrated by the criminal justice system
when judges and juries respond to a victims plight with victim-blaming
questions such as: Why does she stay?84 Framing the issue in this way
transforms an immense social problem into a personal transaction, and at
73
See WALKER II, supra note 26, at 46; see generally Sharon Angella Allard, Rethinking
Battered Woman Syndrome: A Black Feminist Perspective, in DOMESTIC VIOLENCE AT THE
MARGINS: READINGS ON RACE, CLASS, GENDER, AND CULTURE 194-205 (Natalie J. Sokoloff &
Christina Pratt eds., 2005); CIVIC RESEARCH INST., INTIMATE PARTNER VIOLENCE, at xxv-xxvi
(Kathleen A. Kendall-Tackett & Sarah M. Giacomoni eds., 2007). For a critique on the
reliability of battering statistics, see DAVIS, supra note 17, at 33-45.
74 See DALTON & SCHNEIDER, supra note 21, at 211; Sue Osthoff & Holly Maguigan,
Explaining Without Pathologizing, in CURRENT CONTROVERSIES ON FAMILY VIOLENCE 225, 230
(Donileen R. Loseke et al. eds., 2d ed. 2005).
75 AM. PSYCHIATRIC ASSN, supra note 66, at 464; Lenore Walker, The Battered Woman
Syndrome Is a Psychological Consequence of Abuse, in CURRENT CONTROVERSIES ON FAMILY
VIOLENCE 133, 138-44 (R. J. Gelles & D. R. Loseke eds., 1993), reprinted in DALTON &
SCHNEIDER, supra note 21, at 119.
76
77
78
79
80
81
82
83
84
Kovach, supra note 53, at 1126.

See Connecticut v. Borrelli, 629 A.2d 1105, 1114 (Conn. 1993).
See Osthoff & Maguigan, supra note 74, at 232-37.
See DALTON & SCHNEIDER, supra note 21, at 210; Kovach, supra note 53, at 1126.
DALTON & SCHNEIDER, supra note 21, at 210.
Id.
See Vilhauer, supra note 4, at 956-58.
BELKNAP, supra note 17, at 282; DALTON & SCHNEIDER, supra note 21, at 209.
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the same time pins responsibility squarely on the victim.85 Moreover,

victim blaming fails to address the real problems of domestic violence such
as: Why does he batter? or Why should the victims rather than the
assailants be expected to leave?86
The majority of IPV crimes take place behind closed doors where
witnesses cannot provide corroboration.87 As a result, judges and juries
discount victims stories on the belief that women lie or exaggerate about
domestic violence.88 According to one state supreme court:
Commentators have noted that the research data indicates that
potential jurors may hold beliefs and attitudes about abused
women at variance with the views of experts who have studied
or had experience with abused women. In particular, males are
likely to be skeptical about the fear the woman feels in an abusive
relationship and about her inability to leave a setting in which
abuse is threatened.89
Some experts in the field even suggest that the victims are to blame. 90 These
clinicians view victim helplessness as a form of masochism, insisting that
women contribute to their victimization by acting indecisive and
vulnerable.91 The combination of these biases hurts a victims credibility
and impedes the batterers prosecution.92
4.
The Massachusetts Confrontation Clause:

Commonwealth v. Gonsalves and Commonwealth v. Galicia
In 2004 and 2006, respectively, the Supreme Court redefined

Confrontation Clause jurisprudence in Crawford v. Washington93 and Davis
v. Washington.94 The Court in Crawford held that testimonial, out-of-court
statements are inadmissible under the Confrontation Clause of the Sixth
Amendment unless the declarant is unavailable at trial and the defendant
85
ANN JONES, NEXT TIME, SHELL BE DEAD: BATTERING AND HOW TO STOP IT 131 (1994).
See BELKNAP, supra note 17, at 282.
88 Rosemary C. Hunter, Gender in Evidence: Masculine Norms vs. Feminist Reforms, 19 HARV.
WOMENS L.J. 127, 157 (1996).
86
89 Connecticut v. Borrelli, 629 A.2d 1105, 1112 (Conn. 1993) (quoting Neil J. Vidmar &
Regina A. Schuller, Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP.
PROBS., Autumn 1989, at 133, 154).
90 EDWARD W. GONDOLF WITH ELLEN R. FISHER, BATTERED WOMEN AS SURVIVORS: AN
ALTERNATIVE TO TREATING LEARNED HELPLESSNESS 14 (1988).
91
92
93
94
Id. at 15 (citing NATALIE SHAINESS, SWEET SUFFERING: WOMAN AS VICTIM 127 (1984)).
Kovach, supra note 53, at 1126, 1127 n.91.
541 U.S. 36 (2004).
547 U.S. 813 (2006).
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561
had a previous opportunity to cross-examine the declarant.95 Davis clarified

Crawford further by holding that out-of-court statements made to enable
police assistance to meet an ongoing emergency are non-testimonial and,
thus, admissible at trial.96
In the wake of Crawford and Davis, the Massachusetts Supreme Judicial
Court (SJC) handed down similar decisions restricting the use of
testimonial, out-of-court statements in criminal prosecutions.97 In
Commonwealth v. Gonsalves, the SJC held that statements made in response
to questioning by law enforcement agents (police, prosecutors, or others
acting on their behalf)except to secure a volatile scene or assess the need
for medical careare per se testimonial and implicate the Confrontation
Clause.98 The SJC applied Crawford, ruling that testimonial, out-of-court
statements are inadmissible unless the declarant testifies at trial or is
unavailable at trial and was previously cross-examined.99
The SJC acknowledged that Gonsalves created a hurdle in the
prosecution of domestic violence.100 Recognizing that prosecutors rely on
out-of-court statements frequently when complaining witnesses are absent,
the SJC concluded that prosecutors would still have powerful evidence to
prove a crime had occurredtestimony of third-party witnesses, medical
records, and photographsand there was no other way to follow the
commands of the Confrontation Clause.101
In Commonwealth v. Galicia, the SJC held that statements made to an
emergency operator are admissible when they are made in circumstances
that objectively indicate[] that their primary purpose [is] to enable police to
meet an ongoing emergency.102 However, the court also held that
statements made to responding officers after an emergency has subsided
are inadmissible.103 As in Davis, the SJC focused on the activity going on
while such statements are being made.104 Under the facts of the case, the
statements made to the emergency operator provided law enforcement
with the information necessary to assess . . . the dangerousness of the
95
541 U.S. at 68.

547 U.S. at 822.
97 See, e.g., Commonwealth v. Galicia, 857 N.E.2d 463, 470 (Mass. 2006); Commonwealth v.
Gonsalves, 833 N.E.2d 549, 552 (Mass. 2005).
96
98
833 N.E.2d at 555-56.

Id. at 556.
100 Id. at 559.
101 Id.
102 857 N.E.2d at 466.
103 Id.
104 See id. at 469-70.
99
562
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situation.105 Moreover, the declarants statements to the emergency

operator concerned present, not past, actions and thus were admissible
under the Davis emergency exception.106 By contrast the SJC concluded that
the declarants statements to the responding police officers violated the
Confrontation Clause because the assault had ended by the time they
arrived, the urgency of the situation dissipated, and the interview took on
the more formal cast of a police investigation of a crime.107 Gonsalves and
Galicia aligned Massachusetts with Crawford and Davis to modernize
Massachusetts Confrontation Clause jurisprudence.108
5.
Massachusetts Guide to Evidence Section 404(b)
Massachusetts has historically used a case-based system of evidence,

but the SJC recently authorized the drafting of the Massachusetts Guide to
Evidence (Guide).109 Although the Guide is not officially codified, it was
created to advance justice and make evidence rules easier to understand,
teach, and present.110 Section 404(b) of the Guide states:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, nature of relationship, or
absence of mistake or accident.111
The text of this section practically mirrors the text of Federal Rule of
Evidence 404(b),112 which traditionally and intentionally seeks to prohibit
propensity evidence.113 It is presumed that this type of evidence has low
probative value and carr[ies] the distinct risk of undue prejudice.114 In the
105
Id. at 465, 470.

Id. at 470.
107 Id.
108 See Commonwealth v. Galicia, 857 N.E.2d 463, 467-68 (Mass. 2006); Commonwealth v.
Gonsalves, 833 N.E.2d 549, 555-56 (Mass. 2005).
106
109
MASS. GUIDE TO EVID. intro. (2012).

Id. For the remainder of this Note, the Guides suggested rules will be referred to as
actual rules for ease, as the Guide is based on statutory and common-law evidentiary
standards.
111 Id. 404(b).
112 See FED. R. EVID. 404(b).
113 See 1 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL 404-20 to 40421 (9th ed. 2006). Propensity evidence is evidence of a persons character through reputation
or specific acts . . . offered to suggest that the person acted in conformity with that character
trait on the occasion in question. MASS. GUIDE TO EVID. 404(a) (2012) note to subsection (a).
114 MASS. GUIDE TO EVID. 404(b) (2012) note to subsection (b) (citing Commonwealth v.
Clifford, 372 N.E.2d 1267, 1271 (Mass. 1978)).
110
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563
context of domestic violence, the Cycle signifies a propensity to repeat

similar acts of violence, which directly conflicts with Section 404(b). 115
Thus, the inability of prosecutors to introduce Cycle evidence makes
prosecuting domestic violence more difficult.116
D. Domestic-Violence Prosecutions in Massachusetts
1.
The Current Status of Massachusetts Law Is

Inadequate.
Massachusetts currently does not have evidentiary laws in place that

assist in the prosecution of domestic violence.117 Instead, Massachusetts
follows a rule-based, four-step analysis to determine the admissibility of
prior-act evidence.118 First, under Section 401, the evidence must be
relevant, meaning that it must have any tendency to prove or disprove a
matter at issue.119 In the context of domestic violence, character evidence
would be relevant because it shows a propensity to act in a certain way. 120
If the evidence is relevant under Section 401, it is generally admissible
under Section 402.121 A judge would then apply Section 403 to exclude the
proposed evidence if its probative value is substantially outweighed by
the danger of unfair prejudice, . . . misleading the jury, being unnecessarily
time consuming, or needless presentation of cumulative evidence.122 In
most instances, the defendants character has some probative value, but
frequently the potential for unfair prejudice is great. 123 After these three
considerations are addressed, the evidence will only be admitted if the
judge determines it demonstrates some other fact besides the defendants
115
See MASS. GUIDE TO EVID. 404(b) (2012); WALKER I, supra note 9, at 55.
See Vartabedian, supra note 55, at 158.
117 But see MASS. GEN. LAWS ch. 233, 23F (2010) (allowing the defendant to introduce
evidence that the defendant is or has been the victim of acts of physical, sexual, or
psychological harm or abuse for self-defense purposes).
118 See Kovach, supra note 53, at 1119-20 (describing the four-step analysis used to
determine the admissibility of evidence under the Federal Rules of Evidence).
116
119
MASS. GUIDE TO EVID. 401 (2012); Kovach, supra note 53, at 1119.
121 See MASS. GUIDE TO EVID. 402 (2012) (All relevant evidence is admissible, except as
otherwise limited by constitutional requirements, statute, or other provisions of the
Massachusetts common law of evidence. Evidence which is not relevant is not admissible.).
122 Id. 403.
123 Kovach, supra note 53, at 1119; see Commonwealth v. Bonds, 840 N.E.2d 939, 950 (Mass.
2006) (noting that evidence will only be excluded if its probative value *is+ substantially
outweighed by its prejudicial effect); Commonwealth v. Martin, 809 N.E.2d 536, 537 (Mass.
2004) (noting that evidence cannot be admitted unless its probative value outweighs undue
prejudice).
120
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propensity to engage in the crime charged.124

Massachusetts Guide to Evidence Section 404(b) fails to adequately
address the delicate balance of the competing interests found in domesticviolence prosecutions.125 The Rule functions to prevent an inference of bad
character from bad acts, and then an inference of guilt of the charged
offense from the bad character.126 On one hand, a defendant should only
be tried on the facts of the instant case; on the other hand, the Cycle that is
prevalent in domestic violence suggests that it should not be overlooked in
holding a defendant-batterer accountable.127
Furthermore, prosecutors face an uphill battle in obtaining enough
evidence to convict a defendant when the evidence becomes unavailable or
inadmissible because of victim reluctance, BWS, bias, or credibility
issues.128 The SJC also limited the successful prosecution of domestic
violence in Gonsalves129 and Galicia through its interpretation of the
Confrontation Clause.130 Currently, Massachusetts law provides
prosecutors with inadequate tools to successfully prosecute batterers and
adequately protect victims of domestic violence.
2.
Massachusettss Legal Response to Domestic Violence

Must Change.
Facing the inadmissibility of proof of prior violent acts and lack of

evidence in the current charge, a domestic-violence prosecutor may have
no option other but to dismiss the case.131 This could be a fatal decision
because a batterer only needs one more opportunity to kill his victim.132
Since 2003, there have been over 192 domestic-violence-related homicides
in Massachusetts.133 In one twenty-four-hour period, almost eighteen
hundred victims of domestic violence seek an array of services provided in
Massachusetts.134 Approximately twenty-six percent of these victims are
124
See MASS. GUIDE TO EVID. 404(b) (2012); Kovach, supra note 53, at 1119-20.
126 Id. at 1120-21 (internal quotation marks omitted).
127 See id. at 1128-29.
128 See supra Part 1
129 Commonwealth v. Gonsalves, 833 N.E.2d 549, 559 (Mass. 2005).
130 Commonwealth v. Galicia, 857 N.E.2d 463, 469 (Mass. 2006).
131 Abarbanel, supra note 57, at 495.
132 See JONES, supra note 85, at 216.
133 Facts and Stats 2010: Domestic Violence Awareness Month, JANE DOE INC., 1 (2010)
[hereinafter JANE DOE INC.], available at http://www.janedoe.org/site/assets/docs/DVAM_2010_
Facts_Stats.pdf.
134 NATL NETWORK TO END DOMESTIC VIOLENCE, supra note 5. On September 15, 2011,
Massachusetts participated in the National Census of Domestic Violence Services, which
125
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565
left with unmet needs, mainly because of a shortage of funding and

availability of legal representation. 135 If Massachusetts had more effective
laws to combat domestic violence, victims would be better protected from
the continuous and potentially deadly Cycle of Violence. 136
Opponents to a change in the laws prohibiting character evidence
argue that defendants should only be held accountable for what they do
and not for what they are.137 Others believe the laws are sufficient as is
and that many batterers can be successfully prosecuted without the
admission of character evidence.138 One study conducted by the Bureau of
Justice Statistics revealed that more than half of IPV defendants were
convicted and sentenced to a period of incarceration, a direct witness was
present in almost half of all IPV cases, and physical evidence of the crime
was collected over sixty percent of the time. 139 Even with this controvertible
evidence, more should be done to ensure successful prosecution of
domestic violence in Massachusetts.140
E. Positive State Approaches to Prosecuting Domestic Violence
An examination of other states approaches to the problem is helpful in
understanding the need to change the tools used to prosecute domesticviolence cases.141 Both California and Alaska have enacted laws that admit
other acts of domestic violence for propensity purposes.142
1.
California Evidence Code Section 1109
In 1996, the California Legislature enacted Evidence Code Section 1109

in response to the exclusion of evidence of prior acts of domestic violence
in the murder trial of O.J. Simpson.143 Known as the Nicole Brown
compiled a twenty-four-hour census of the use of domestic-violence shelters and services in

the state to demonstrate the prevalence of domestic violence in Massachusetts. Id.
135
Id.
See supra Part 1-3.
137 HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 74 (1968).
138 See BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE, PROFILE OF INTIMATE PARTNER
VIOLENCE CASES IN LARGE URBAN COUNTIES 1 (2009), available at http://bjs.ojp.usdoj.gov/
content/pub/pdf/pipvcluc.pdf.
136
139 Id. at 4, 7. This report was based on data from large urban counties. Id. at 11. Although
Massachusetts was not included, this study is reflective of the common misconceptions of
domestic-violence prosecutions. See id. at 9.
140 See infra Part III.
141 See CAL. EVID. CODE 1109 (West 2009); ALASKA R. EVID. 404(b)(4) (2010).
142 See CAL. EVID. CODE 1109; ALASKA R. EVID. 404(b)(4).
143 Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 IND.
L. REV. 687, 701-02 (2003).
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Simpson Law,144 Section 1109 allows the prosecution to introduce

evidence at trial of a defendants uncharged acts of domestic violence to
show a propensity to commit such crimes. 145 Section 1109 is an exception to
Californias prohibition of evidence of a persons character to prove
conduct on a specific occasion.146 Section 1109 allows the uncharged acts to
be related to the same or a former victim.147 Evidence of an accuseds prior
acts may be excluded if its probative value is substantially outweighed by
the probability that its admission will . . . create a substantial danger of
undue prejudice . . . .148 Section 1109 limits the admissibility of prior-act
evidence to acts occurring more than ten years before the charged offense
unless the court determines it is in the interest of justice to admit prior-act
evidence occuring outside this timeframe. 149
The California Legislature considered the unique, cyclical nature of
domestic violence in determining that propensity evidence should be
admissible in domestic-violence prosecutions:
The propensity inference is particularly appropriate in the area of
domestic violence because on-going violence and abuse is the
norm in domestic violence cases. Not only is there a great
likelihood that any one battering episode is part of a larger
scheme of dominance and control, that scheme usually escalates
in frequency and severity. Without the propensity inference, the
escalating nature of domestic violence is likewise masked.150
Californias recognition of the importance of introducing propensity

evidence helped carve out an exception to the traditional ban on character
evidence.151
The admission of propensity evidence under Section 1109 has
withstood constitutional scrutiny.152 In People v. Hoover, the defendant
argued that Section 1109 violated his right to a fair trial because prior
144
145
Vartabedian, supra note 55, at 168.

CAL. EVID. CODE 1109(a)(1); People v. Hoover, 92 Cal. Rptr. 2d 208, 212 (Cal. Ct. App.
2000).
146
See CAL. EVID. CODE 1101, 1109(a)(1).

See People v. Brown, 92 Cal. Rptr. 2d 433, 442 (Cal. Ct. App. 2000) (holding that
evidence of previous violent acts towards other former girlfriends is admissible under section
1109); JENNIFER P. ANDERSON, ASSEMB. COMM. ON PUB. SAFETY, COMMITTEE COUNSEL REPORT
ON S.B. 1876, at 4, 5 (Cal. 1996) [hereinafter S.B. 1876], available at http://www.leginfo.ca.gov/
pub/95-96/bill/sen/sb_1851-1900/sb_1876_cfa_960624_094659_asm_ comm.html.
148 See CAL. EVID. CODE 352, 1109(a)(1).
149 Id. 1109(e).
150 S.B. 1876, supra note 147, at 3.
151 See id. at 3-4.
152 See People v. Hoover, 92 Cal. Rptr. 2d 208, 212 (Cal. Ct. App. 2000); People v. Jennings,
97 Cal. Rptr. 2d 727, 735 (Cal. Ct. App. 2000).
147
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567
instances of domestic violence would dilute[] the due process requirement

of proof beyond a reasonable doubt of every fact necessary to constitute the
charged crime.153 The court dismissed this constitutional claim, reasoning
that the evidence of prior acts of domestic violence may have added to the
evidence against the defendant, but it did not lessen the prosecutions
burden of proving a defendants guilt beyond a reasonable doubt. 154
In People v. Jennings, Section 1109 was subjected to an equal protection
challenge under the federal and state constitutions alleging that domesticviolence defendants were not being treated the same as defendants accused
of other crimes.155 The court reasoned that [a]bsolute equality is not
required, only that the distinctions made have some relevance to their
purpose.156 The court concluded that it was clear that Section 1109s
distinction between types of offenders was relevant to the evidentiary
purposes for which the distinction was made. 157 Surviving these
constitutional challenges confirmed that Section 1109 is a tremendous tool
in the successful prosecution of domestic violence.158
2.
Alaska Rule of Evidence 404(b)(4)
In 1997, the Alaska Legislature enacted Alaska Rule of Evidence

(ARE) 404(b)(4), which permits the introduction of prior crimes of
domestic violence against the same or another victim in a prosecution of
domestic violence.159 Rule 404(b)(4) is a broad evidentiary provision
addressing the admissibility of prior acts of domestic violence. 160 There are
no time constraints, no similarity requirements, and no pattern of violence
requirements.161 Despite limited legislative history relating to the passage
of Rule 404(b)(4),162 the intent behind the rule change was to clarify that
evidence of a pattern of physical abuse . . . on previous occasions could be
153
92 Cal. Rptr. 2d at 213.

Id. at 214.
155 97 Cal. Rptr. 2d at 734.
156 Id. at 735.
157 Id.
159 ALASKA R. EVID. 404(b)(4).
160 Bingaman v. State, 76 P.3d 398, 406 (Alaska Ct. App. 2003).
161 See ALASKA R. EVID. 404(b)(4); Bingaman, 76 P.3d at 406; Beth Goldstein Lewis Trimmer,
A Sexual Relationship, Did We Have One? A Review of the Definition of Sexual Relationship
Within the Context of Alaska's Domestic Violence Laws, 24 ALASKA L. REV. 237, 252-53 (2007).
Contra ALASKA R. EVID. 404(b)(2) (limiting the admissibility of prior-act evidence in
prosecutions involving physical or sexual abuse of a minor to acts that occurred within ten
years of the alleged offense, acts that are similar to the offense charged, and acts committed
upon persons similar to the prosecuting witness).
154
162
Bingaman, 76 P.3d at 405.
568
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admissible.163 Legislative committee hearing testimony indicated that it

was important for the law to reflect[] that domestic violence is the type of
thing that happens over and over again, and tends to escalate in
violence.164 Further testimony suggested that the state would still have to
demonstrate the relevancy of the evidence, and the court would have to
subject the evidence to a balancing test, even though none of these
limitations were present in the rule itself.165 Rule 404(b)(4) paved the way
for the admission of evidence of prior domestic violence to show the
defendant has a propensity to commit such crimes.166
In Fuzzard v. State, the Alaska Court of Appeals categorically dismissed
a due process and equal protection challenge to Rule 404(b)(4).167 The
appeals court recognized the historical reluctance to admit evidence of a
defendants past misdeeds as evidence of the defendants criminal
propensity.168 However, the court concluded that propensity evidence was
not so prejudicial as to destroy any possibility of a fair trial.169 The court
held that Rule 404(b)(4) does not infringe on a fundamental right and that
it bears a substantial relationship to the goals the Alaska Legislature sought
to achieve.170 Like California Evidence Code Section 1109, Rule 404(b)(4)
has given prosecutors an effective tool to successfully prosecute domestic
violence.171
ANALYSIS
II. A Proposal for Change: The Doctrine of Chances and the
Admissibility of Prior-Acts Evidence in Domestic-Violence
Prosecutions
Massachusetts should adopt the Doctrine in order to assist in the
successful prosecution of domestic violence. This move would provide a
non-character theory of logical relevance172 and would support the
163
Id. (internal quotation marks omitted). The court noted that the legislative minutes and
files contain no information regarding the intended purpose, scope, or perceived need for this
rule. Id. at 406.
164
Id. at 405 (citations omitted).

See id. at 406.
166 See Trimmer, supra note 161, at 252-53.
167 13 P.3d 1163, 1166, 1168 (Alaska Ct. App. 2000).
168 Id. at 1166 (citing Allen v. State, 945 P.2d 1233, 1238 (Alaska Ct. App. 1997)).
169 Id.
170 Id. at 1168.
171 See Kovach, supra note 53, at 1140.
172 Imwinkelried I, supra note 10, at 434.
165
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569
admission of evidence of prior acts of domestic violence. 173 Using evidence

of prior acts of domestic violence does not violate the traditional ban on
character evidence because the doctrine rests on a radically different
process of circumstantial reasoning that markedly decreases the
probative dangers that underlie the rationale for the character evidence
prohibition.174
A. What Is the Doctrine of Chances?
The Doctrine is a non-character theory of logical relevance.175 The
Doctrine is the instinctive recognition of th[e] logical process which
eliminates the element of innocent intent by multiplying instances of the
same result until it is perceived that this element cannot explain them
all.176 Simply stated, the Doctrine suggests that it is unlikely that a
defendant would be repeatedly innocently involved in similar suspicious
circumstances.177 It is reasoning by process of elimination.178 For example,
when a defendant is charged with a crime, everyday experience suggests
that the defendant may be an innocent individual accidentally accused. 179
But, it is objectively unlikely that the same defendant will be accidentally
charged with the same or similar acts over and over again. 180 The Doctrine
can explain away the probability of all the incidents being wrongful
accusations, increasing the probability that one or more of the incidents
were not accidents or false accusationsincluding the pending charge.181
The resemblance of the charged offense to prior instances of conduct is
what makes the evidence probative. 182 The Doctrine holds that the
commission of multiple instances of similar prior acts cannot be explained
by extraordinary coincidence due to the objective improbability of so
many accidents.183 Rather, the Doctrine concludes that some of the
173
See 2 WIGMORE, supra note 12, 302.

Edward J. Imwinkelried, The Dispute Over the Doctrine of Chances: Relying on the Concept
of Relative Frequency to Admit Uncharged Misconduct Evidence, CRIM. JUST., Fall 1992, at 16, 20
[hereinafter Imwinkelried II].
174
175
Id. at 16.
2 WIGMORE, supra note 12, 302, at 241.
177 United States v. Matthews, 53 M.J. 465, 470 (2000).
178 Imwinkelried I, supra note 10, at 452; see also WIGMORE, supra note 12, 302, at 245.
179 Imwinkelried II, supra note 174, at 19.
181 See Miguel A. Mndez & Edward J. Imwinkelried, People v. Ewoldt: The California
Supreme Courts About-Face on the Plan Theory for Admitting Evidence of an Accuseds Uncharged
Misconduct, 28 LOY. L.A. L. REV. 473, 478 (1995).
176
182
183

Imwinkelried I, supra note 10, at 436.
570
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incidents were not accidents at all; the probativity of each similar act will
vary depending on whether the act could be repeated without intent. 184
Because similar results do not usually occur from dissimilar acts,185 the
recurrence of the same result decreases the likelihood that the act occurred
by accident, inadvertence, self-defense, good faith, or another innocent
mental state.186 The inference from this line of reasoning tends to establish
intent to commit the crime.187
Beyond a reasonable doubt requires certainty in the knowledge of the
evidence, and we must assume . . . that any information that alters our
assessment of the probability of some fact is pertinent and increases our
knowledge.188 The Doctrine invites the fact finder to consider the
objective improbability of a coincidence in determining whether the
charged crime was an accident or the defendant was caught up in
suspicious circumstances.189 The final conclusion the Doctrine seeks is
limited.190 The Doctrine does not seek to prove that any of the incidents
were a product of the defendants propensity to commit the crime,191 but
that it is less likely that accident accounts for the defendants
involvement.192
The Doctrine does not require a general pattern of conduct or
connection between each act.193 The Doctrine focuses on the mere repetition
of instances and not their system or scheme. 194 This limited use of prior-acts
evidence satisfies the logical inferences demanded by the evidence. 195 As
one Chief Justice put it:
It is not conclusive, for a man may be many times under a similar
mistake, or may be many times the dupe of another; but it is less
likely he should be so oftener than once, and every circumstance
which shows he was not under a mistake on any one of these
occasions strengthens the presumption that he was not on the
last.196
184
185
186
187
188
189
190
191
192
193
194
195
196

Id.
Id.
Id.
IA WIGMORE, supra note 1, 37, at 1031 (footnote omitted).
Id.
Id.
Id.
Id.
Id.
Id. 302, at 242.
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571
For prior-acts evidence to be relevant, the Doctrine must show that, viewed
in conjunction with the prior-acts evidence, the charged conduct would be
an extraordinary coincidence.197 The Doctrine satisfies the logical relevance
requirement of Massachusetts Guide to Evidence Section 401198 by
increasing the probability that the charged offense occurred by eliminating
the probability that random chance is at work. 199 For example, suppose a
person has a history of conduct that results in repeated arrests, convictions,
or allegations for the same type of violence.200 It is more likely that the
person committed at least one or more of those crimes. 201 The Doctrine
relies on statistics and probability.202 It is not logical to assume that a
defendant is simply plagued with bad luck.203 The Doctrine is usually
intertwined with evidentiary issues regarding admissibility of character
evidence during a trial.204
B. Character Evidence and the Doctrine of Chances
The policies that underlie the character-evidence prohibition are not
present in the Doctrine.205 The character-evidence prohibition is based on
the presumption that the fact finder will use it to decide what kind of
person the defendant is.206 Arguably, this leads to the temptation to
punish the [defendant] for his or her criminal past.207 This conflicts with
the longstanding judicial policy that prohibits inferring bad character from
bad acts and, ultimately, guilt from bad character. 208 The other basis of the
prohibition is that the fact finder will treat the character evidence as a
predictor of behavior.209 This leads the fact finder to exaggerate the
197
See Imwinkelried I, supra note 10, at 438.

MASS. GUIDE TO EVID. 401 (2012).
200 Cf. Andrew J. Morris, Federal Rule of Evidence 404(b): The Fictitious Ban on Character
Reasoning from Other Crime Evidence, 17 REV. LITIG. 181, 193 (1998).
198
201
Cf. id. at 191-92.

See 2 WIGMORE, supra note 12, 302, at 241; Imwinkelried I, supra note 10, at 453; Morris,
supra note 200, at 194-95.
203 See 2 WIGMORE, supra note 12, 302, at 241; Imwinkelried I, supra note 10, at 435; Morris,
supra note 200, at 192.
202
204
See Imwinkelried II, supra note 174, at 16.

Id. at 19.
206 Id.
207 Id.
208 Kovach, supra note 53, at 1124. The ban on other acts for propensity purposes . . . is so
deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to
override doubts of the basic relevancy of the evidence. Id. at 1118 (internal quotation marks
omitted).
205
209
Imwinkelried II, supra note 174, at 16.
572
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probative value of character evidence and violates the judicial policy of

ascrib[ing] the proper weight to each item of evidence.210
The Doctrine does not rely on an inference as to the defendants
personal character nor does it draw an ultimate inference as to the
defendants propensity to commit the charged offense. 211 Further, the
Doctrine does not rely on the assumption that if the defendant did it once,
he will surely do it again. 212 Rather, the Doctrine requires the fact finder to
consider common sense and everyday experience to determine the
likelihood of the alleged coincidencethat the defendant is accidentally
involved or wrongly accused of a similar offense. 213 This analysis of the
evidence requires the fact finder to avoid the subjective question of the
defendants character.214 This is because the Doctrine only considers
whether one or more of the prior acts were accidents; a defendants
character bears no logical relevance to that question.215
Under current Massachusetts law, prior-acts evidence is only
admissible to prove motive, opportunity, intent, preparation, plan,
knowledge, identity, nature of relationship, or absence of mistake or
accident.216 In addition to admissibility under these theories, prior-acts
evidence should be admitted under the Doctrine to show the objective
probability that the defendants involvement in the current charge is an
extraordinary coincidence.217 Section 404(b)s prohibition against
propensity evidence would remain intact, and the fact finder would be
given additional, logically relevant evidence to decide a defendants guilt
beyond a reasonable doubt. 218
Proponents of the Doctrine assert that the use of prior-acts evidence
does not implicate character or propensity.219 In operation, the Doctrine
develops inferences as follows: an examination of the defendants other
misdeeds, which leads to the objective improbability of so many accidents,
which leads to the conclusion that one or some of the incidents were not
210
Id.; see MASS. GUIDE TO EVID. 404(b) (2012) note to subsection (b).
212 Id. at 20.
213 Id.
214 See id. at 19.
216 MASS. GUIDE TO EVID. 404(b) (2012).
218 See id. at 462 (*U+ncharged misconduct *evidence+ accepted under the doctrine is
logically relevant without positing any assumption about the defendants personal, subjective
bad character.).
211
219
See generally 2 WIGMORE, supra note 12, 303 (describing how it is possible to negative
accident or inadvertence, and to infer deliberate human intent, without forming any
conclusion as to the personality of the doer); Imwinkelried I, supra note 10, at 434.
4/2/2012 1:37 PM
573
accidents.220 The conclusion the fact finder would be entitled to make is not
about the character of the defendant but rather that it is a coincidence that
the defendant is involved in the charged crime. 221 This implicates neither
the defendants propensity to commit the charged act nor the fact finders
willingness to punish the defendant for who he is.222 Using the Doctrine,
rather than merely adopting a categorical acceptance of prior-acts evidence
like California or Alaska,223 recognizes the constitutional importance of
prohibiting character evidence224 and legally permits highly relevant
evidence in domestic-violence prosecutions.225
Opponents argue that application of the Doctrine is inherently
propensity based.226 They argue that once the probability of random chance
is eliminated, logic requires an inference that it was the defendants
propensity that caused the crime.227 However, even if a lay juror reaches a
conclusion through this line of reasoning, it still fails to account for human
autonomy.228 Human beings are capable of making decisions contrary to
character trait.229 Application of the concept of autonomy allows for the
disregard of character trait for propensity altogether. 230 Discarding
propensity-based reasoning provides the opportunity to evaluate prior-acts
evidence in an unbiased, objective light.231
220

Id. at 456-57.
222 PACKER, supra note 137, at 74.
223 See supra Part E.
224 See Imwinkelried I, supra note 10, at 432.
225 See generally id. at 432-39 (noting a distinction between character evidence and
noncharacter theories, and that evidence may be admitted under a noncharacter theory
because it takes different steps to get to the final conclusion that one or more similar acts
could not have been a coincidence).
221
226 Id. at 450; see Lisa Marshall, Note, The Character of Discrimination Law: The Incompatibility
of Rule 404 and Employment Discrimination Suits, 114 YALE L.J. 1063, 1081 (2005).
228 See generally GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY 6 (1988) (A
person is autonomous to the degree that what he thinks and does cannot be explained
without reference to his own activity of mind.).
229 See WAYNE R. LAFAVE, CRIMINAL LAW 1.5(a)(3)-(5), at 27-29 (4th ed. 2003) (discussing
how punishment, whether of oneself or others, can affect how an individual makes his
decisions).
230 See MORTIMER J. ALDER, SIX GREAT IDEAS: IDEAS WE JUDGE BY, IDEAS WE ACT ON 142
(1981) (arguing that freedom of decision can be possessed and exercised by individuals of
good or bad moral character). But see Becker v. ARCO Chem. Co., 207 F.3d 176, 191 (3d Cir.
2000).
231
574
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C. Domestic Violence and the Doctrine of Chances

Prior-acts evidence is an especially important consideration in
domestic-violence cases.232 One act of battering almost assuredly falls into a
greater pattern of abuse constituting the Cycle of Violence.233 Traditional
noncharacter theories that are currently used in prosecuting domestic
violence present difficulties in admitting prior-acts evidence because of the
likelihood of demonstrating propensity to commit the charged crime.234
Though forbidden, propensity evidence is probative because of the
repeated violence that occurs in domestic-violence cases.235 The difficulty in
holding defendants responsible for what they doand not for who they
are invites Doctrine of Chances reasoning. 236
The Doctrine focuses on the objective improbability of coincidence.237 At
trial, the fact finder is often required to examine, among other things, the
plausibility of the defendants explanation of the crime.238 As previously
mentioned, domestic-violence defendants often deny that the abuse against
the victim was serious or that it ever occurred. 239 In People v. Jennings, the
California case challenging equal protection under Section 1109, the
defendant denied hitting or assaulting the victim and claimed to have
chosen jail time because of a disagreement with his lawyer. 240 In Fuzzard v.
State, the Alaska case challenging ARE 404(b)(4) on due process and equal
protection grounds, the defendant argued that the victim was not afraid of
him and that she was not a credible witness.241
Both California and Alaska have statutes directly addressing the need
for prior-acts evidence; but what if, like Massachusetts, they did not? In
cases like these, evidence of prior acts of domestic violence would help the
fact finder assess the plausibility of a defendants claim of an alternative
theory of how the victim was injured.242 Rather than suggesting that the
defendant abused the victim in the instant case because he abused her
232
See Abarbanel, supra note 57, at 472; Kovach, supra note 53, at 1126-29.
WALKER II, supra note 26, at 91; Vartabedian, supra note 55, at 174; Cycle of Violence, supra
note 27.
233
234
Vartabedian, supra note 55, at 174.

Id.
236 See PACKER, supra note 137, at 74; Kovach, supra note 53, at 1123.
238 Id. at 439.
239 Cycle of Violence, supra note 27; see also Fuzzard v. State, 13 P.3d 1163, 1164-65 (Alaska
Ct. App. 2000); People v. Jennings, 97 Cal. Rptr. 2d 727, 732 (Cal. Ct. App. 2000); supra Part
I.B.3.
235
240
241
242
97 Cal. Rptr. 2d at 732.

See 13 P.3d at 1165-66.
See 2 WIGMORE, supra note 12, 302; Mndez & Imwinkelried, supra note 181, at 478.
4/2/2012 1:37 PM
575
previously,243 the Doctrine permits the fact finder to objectively consider the
likelihood that the defendants explanation of the incident is true or
accurate.244
Adoption of the Doctrine in domestic-violence prosecutions would still
shield defendants from improper use of character evidence and could save
the lives of domestic-violence victims who are stuck in the Cycle of
Violence.245 The high recidivism rate associated with domestic violence
demands that more must be done to protect victims and prosecute
domestic violence.246 Some state legislatures have recognized that domestic
violence is cyclical in nature and involve[s] patterns of abuse.247 These
states have taken some measures to combat domestic violence.248
Massachusetts should follow their lead by adopting the Doctrine of
Chances as a non-character theory of logical relevance to admit prior-acts
evidence for nonpropensity purposes.249 The Doctrine respects the
defendants constitutional rights more so than a categorical statutory
exception, and it does not require legislative action.250
III. Massachusettss Adoption of the Doctrine of Chances in DomesticViolence Prosecutions
Adoption and implementation of the Doctrine of Chances in
Massachusetts would not be difficult. Massachusetts courts could begin
recognizing the Doctrine through case law and evidentiary rules already in
force and supplement the law with aspects of other states approaches.251
Applying the Doctrine would continue to protect defendants
constitutional rights and would promote victims rights and safety.252
243 See Kovach, supra note 53, at 1131 (stating that studies conclude that domestic-violence
defendants have a high rate of recidivism).
244 Imwinkelried I, supra note 10, at 439. Contra Morris, supra note 200, at 200-01.
245 See supra Part 1-3; infra Part B.
246 See Vartabedian, supra note 55, at 180-81.
247 Kovach, supra note 53, at 1144. Kovach surveyed Alaska, California, Colorado, Illinois,
Kansas, and Minnesota to conclude that the admission of prior-acts evidence benefits
domestic-violence prosecutions. Id. at 1132-51.
248
249
Id. at 1143-44.
See 2 WIGMORE, supra note 12, 302; Imwinkelried I, supra note 10, at 434-37; infra Part
III.
250
See infra Part III.A-B.

See FED. R. EVID. 609(b); ALASKA R. EVID. 404(b)(4) (2010); CAL. EVID. CODE 1109 (West
2009); MASS. GUIDE TO EVID. 403 (2012).
251
252
See infra Part A-C.
576
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A. Implementation of the Doctrine of Chances

To adopt a new evidentiary theory, the Massachusetts General Court
could review other state laws and develop one of its own. 253 But, since
Massachusetts has not officially codified its rules of evidence, it should
impose changes in the system by judicial adoption of the Doctrine of
Chances.254
First, the threshold for admitting prior-acts evidence should be low.255
Evidence sufficient to support a finding that the prior acts of domestic
violence occurred under Section 104(b) would satisfy the relevancy
requirement.256 Second, prior-acts evidence would need to be used in
conjunction with other substantive evidence. 257 Prior-acts evidence alone
would not be sufficient evidence to sustain the prosecutions burden of
proof.258 The prosecution would need to present corroborating evidence
such as other victims testimony or physical evidence of the assaultto
bolster the likelihood that the defendant committed the instant crime. 259
Further, prior-acts evidence of other types of crimes would bear no
relevance on the likelihood that specific, repeated instances of domestic
violence were not accidents and would be inadmissible. 260 For example, a
defendants connection to theft would not increase the probability that he
is connected to domestic violence because the two types of crimes do not
have common elements.261
For prior-acts evidence to be probative, at least two previous instances
of domestic violence would have to occur before the Doctrine could be
invoked.262 One instance of domestic violence could conceivably be an
253
See, e.g., ALASKA R. EVID. 404(b)(4); CAL. EVID. CODE 1109.

In 2006, the SJC mandated that the Supreme Judicial Court Advisory Committee on
Massachusetts Evidence Law assemble a guide to Massachusetts evidence rather than . . .
prepare a Restatement or . . . propose changes in the existing law of evidence. Notice Inviting
Comment, Advisory Committee on Massachusetts Evidence Law Preliminary Draft of the
Massachusetts Guide to Evidence, MASS.GOV, http://www.mass.gov/courts/sjc/prop-evidence
guide.html (last visited Mar. 28, 2012).
255 See Commonwealth v. Vitello, 381 N.E.2d 582, 590 (Mass. 1978) (Evidence is *more+
relevant if it renders the desired inference more probable than it would be without the
evidence.).
254
256
See MASS. GUIDE TO EVID. 104(b) (2012). Sufficient to support a finding means that
the judge is satisfied that a reasonable jury could find that the event took place or the
condition of fact was fulfilled. See id. note to subsection (b)(1).
257
258
259
260
261
262

Id. at 456.
Id.; Imwinkelried II, supra note 174, at 19.
2 WIGMORE, supra note 12, 302, at 246 n.2.
Id. at 245-46; Abarbanel, supra note 57, at 497.
See Imwinkelried I, supra note 10, at 437; Imwinkelried II, supra note 174, at 18.
4/2/2012 1:37 PM
577
accident or false accusation,263 but two or more occurrences decreases the

probability that the defendant was caught up in an accident or mistake. 264
The prior instances would have to be within a specified timeframe to
suggest an extraordinary coincidence.265 Instances occurring within the past
ten years would satisfy the inquiry and fall in line with Federal Rule of
Evidence 609(b) and Massachusetts Guide to Evidence Section 609(a).266
Pre-trial notice of the prosecutions intent to use the Doctrine need not
be given.267 Courts should presume that defendants know the history of
their own prior bad acts and relationships with intimate partners or family
members.268 Evidence of prior acts of domestic violence should not be
limited to the current victim; instances of domestic violence against other
victims are equally probative. 269 The Cycle of Violence can continue
through more than one victim because the violence is about control, not
about the particular victim.270 This evidence could be introduced through
testimony of either the victim, a former victim, or someone with personal
knowledge of the defendants prior acts of domestic violence.271
Laypersons tend to reason simplistically that leopardsand
criminalsdo not change their spots.272 With this in mind, a limiting
instruction on the proper use of prior-acts evidence would decrease the
risk of the fact finder using it as propensity evidence.273 Therefore, the
Doctrine presents less risk of overvaluation of a defendants character
and reduces the risk that jurors will penalize the defendant because of his
prior acts.274
The Doctrine uses basic evidentiary principles already at work in the
Commonwealth such as relevancy, balancing the probativity and prejudice
263
Imwinkelried II, supra note 174, at 18-19.

See id. at 19.
265 2 WIGMORE, supra note 12, 302, at 245-46.
266 See FED. R. EVID. 609(b); MASS. GUIDE TO EVID. 609(a)(1)-(5) (2012).
268 Id.
269 See Abarbanel, supra note 57, at 502.
270 Linell A. Letendre, Note, Beating Again and Again: Why Washington Needs a New Rule of
Evidence Admitting Prior Acts of Domestic Violence, 75 WASH. L. REV. 973, 977-78 (2000); see supra
Part 1-3.
264
271 See People v. Brown, 92 Cal. Rptr. 2d 433, 436-37, 440 (Cal. Ct. App. 2000) (describing
how two women testifying about defendants past domestic violence in their relationships is
not a violation of due process).
272 Imwinkelried II, supra note 174, at 18 (citing Victor J. Gold, Limiting Judicial Discretion to
Exclude Prejudicial Evidence, 18 U.C. DAVIS L. REV. 59, 68, 80 (1984)).
273
274

Id.; see supra notes 111-113 and accompanying text.
578
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v. 46 | 551
of evidence, and the prohibition on character evidence. 275 The Doctrine also
utilizes portions of other accepted federal and state laws to establish a
workable, noncharacter theory for admission of prior-acts evidence in
domestic-violence prosecutions.276
B. The Doctrine Provides Adequate Protection for Defendants
The Doctrine withstands various constitutional concerns raised by
criminal defendants.277 Policy considerations supporting the admission of
prior acts of domestic violence outweigh the considerations that have
traditionally supported the prohibition on character evidence.278
Introduction of prior-acts evidence does not run afoul of the Due
Process Clause.279 For the Doctrine to offend due process, it must offend
some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.280 The introduction of evidence of
similar acts of domestic violence does not offend justice, nor does it violate
a fundamental right.281 The Doctrine promotes justice by helping to hold
the batterer accountable for the charged offense. 282 In evaluating whether a
defendants substantive due process rights have been violated, the means
should bear a rational relationship to its end and should be narrowly
tailored to effectuate its purpose.283 The admission of prior-acts evidence
rationally relates to Massachusettss interest in protecting domesticviolence victims by demonstrating the probability that the instant charge
was not accidental.284 Using the Doctrine to admit prior-acts evidence is
limited in scope and addresses the specific need to provide prosecutors
with adequate tools to successfully prosecute domestic violence.285
275
276
MASS. GUIDE TO EVID. 401-403 (2012).

See FED. R. EVID. 609(b); ALASKA R. EVID. 404(b)(4) (2010); CAL. EVID. CODE 1109 (West
2009).
277 See People v. Jennings, 97 Cal. Rptr. 2d 727, 735 (Cal. Ct. App. 2000); People v. Johnson,
91 Cal. Rptr. 2d 596, 602-03 (Cal. Ct. App. 2000); People v. Dabbs, 940 N.E.2d 1088, 1097-99 (Ill.
2010).
278
See Kovach, supra note 53, at 1135-36; supra Part E.

See Dabbs, 940 N.E.2d at 1098.
280 Griswold v. Connecticut, 381 U.S. 479, 487 (1965) (Goldberg, J., concurring) (citations
omitted).
279
281
People v. Hoover, 92 Cal. Rptr. 2d 208, 213-14 (Cal. Ct. App. 2000).
Cf. Kovach, supra note 53, at 1126 (noting the challenges in successful prosecution of
domestic violence).
283 See Griswold, 381 U.S. at 497-98 (Goldberg, J., concurring).
284 Dabbs, 940 N.E.2d at 1098; see People v. Donoho, 788 N.E.2d 707, 721 (Ill. 2003).
285 Imwinkelried I, supra note 10, at 437; see supra Part D. This Note only argues that the
Doctrine of Chances should be applied to domestic-violence crimes.
282
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579
Additionally, defendants are afforded equal protection when applying

the Doctrine to domestic-violence prosecutions.286 The use of prior-acts
evidence under the Doctrine in the domestic-violence context seemingly
classifies a particular type of offender.287 Classification does not violate
equal protection because distinguishing batterers from other types of
offenders is relevant to combating the cyclical nature of domestic
violence.288 Even though fundamental rights are not implicated, the
Doctrine still withstands the highest standard of scrutiny. 289 It serves a
compelling state interestcombating domestic violenceand the
distinction is necessary to serve that interest. 290 The statistics on
Massachusettss domestic-violence victims easily demonstrate that
domestic violence is a compelling state interest. 291
A defendants right to a fair trial remains intact because of Section
403s balancing test.292 Admission of prior-act evidence is within the sound
discretion of the trial judge who is charged with the proper administration
of justice.293 The Doctrine does not violate the Eighth Amendments
prohibition against cruel and unusual punishment because it does not
imply that the defendant should be convicted based on his status as a
domestic-violence offender, but rather based on the fact finders belief
beyond a reasonable doubt that the defendant committed the charged act
of domestic violence.294 Thus, the Doctrine survives the numerous
constitutional concerns that may arise in its application to domesticviolence prosecutions.295
286
See People v. Jennings, 97 Cal. Rptr. 2d 727, 735 (Cal. Ct. App. 2000).
See id.
288 See id.
289 See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488-89 (1955). The government
must show that the challenged classification serves a compelling state interest and that the
classification is necessary to serve that interest.
290 See Williamson, 348 U.S. at 488-89.
291 See NATL NETWORK TO END DOMESTIC VIOLENCE, supra note 5.
292 MASS. GUIDE TO EVID. 403 (2012); see Kovach, supra note 53, 1135-36; see also FED. R.
EVID. 403; Commonwealth v. Bonds, 840 N.E.2d 939, 950 (Mass. 2006); Commonwealth v.
Martin, 809 N.E.2d 536, 537 (Mass. 2004).
287
293 See Commonwealth v. Rosa, 661 N.E.2d 56, 61 (Mass. 1996) (holding that the judge has
discretion to exclude confusing and misleading evidence); Commonwealth v. Berry, 648
N.E.2d 732, 741 (Mass. 1995) (holding that the judge has discretion to avoid unnecessary
inflammatory material); Commonwealth v. Cruz, 759 N.E.2d 723, 736 (Mass. App. Ct. 2001)
(holding that the judge has discretion to exclude unduly time-consuming evidence).
294 People v. Johnson, 91 Cal. Rptr. 2d 596, 602-03 (Cal. Ct. App. 2000).
295 See People v. Jennings, 97 Cal. Rptr. 2d 727, 735 (Cal. Ct. App. 2000); Johnson, 91 Cal.
Rptr. 2d at 602-03; People v. Dabbs, 940 N.E.2d 1088, 1098-99 (Ill. 2010).
580
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v. 46 | 551
C. The Doctrine of Chances Protects Victims Rights and Safety

Using the Doctrine of Chances in the prosecution of domestic violence
would both promote victims rights and protect victims from future acts of
domestic violence.296 If evidence of prior acts was admitted at trial, a
reluctant victims testimony would be bolstered by additional evidence.297
The additional evidence would decrease judge and juror bias. 298 The
introduction of other instances of domestic violence, whether against the
current or former victim, would increase a victims credibility because the
majority of IPV crimes take place behind closed doors where witnesses
cannot provide corroboration.299 Evidence of a pattern of acts, whether a
series of extraordinary accidents or reflective of a cycle of enduring
violence, would increase victim participation in the process, which further
promotes victim safety.300
CONCLUSION
Every day in Massachusetts close to eighteen hundred victims seek
help surviving domestic violence. By adopting the Doctrine of Chances,
Massachusetts could positively assist victims by protecting domesticviolence victims from repeated acts of violence or possibly even death. The
Doctrine provides a noncharacter theory of logical relevance that facilitates
admission of prior acts of domestic violence. Admission of prior-acts
evidence increases the probability that the instant crime is not a random
accident or false accusation. Recognizing that domestic violence is cyclical
in nature furthers what should be the goal of Massachusettss legal system:
legal protections for domestic violence victims that are equal to or greater
than the protections afforded to defendants. Massachusetts should do more
to combat domestic violence, and adoption of the Doctrine of Chances to
admit prior instances of conduct would do just that.
296 Cf. JONES, supra note 85, at 216 (arguing that courts should routinely review a domestic
abusers criminal record in order to protect the victims from future acts of violence).
297
Cf. Hunter, supra note 88, at 134 (explaining that prosecution of domestic-violence cases
can be made difficult due to a victims reluctance to come forward); Kovach, supra note 53, at
1132.
298
299
300
See JONES, supra note 85, at 217; Hunter, supra note 88, at 167.
See Kovach, supra note 53, at 1131-32.
See supra Part I.C.1.

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What Are the Odds: Applying the

Every day in Massachusetts, almost eighteen hundred victims seek

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New England Law Review

Knowledge of facts is always a matter of probabilities.1

See Vilhauer, supra note 4, at 955-56; see infra Part 1.D.1.

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type of crime.10 Other states have stepped up to the challenge. 11 In

10 See Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence

Imwinkelried I, supra note 10, at 422, 434.

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New England Law Review

and women in both homosexual and heterosexual relationships.18

RICHARD L. DAVIS, DOMESTIC VIOLENCE: INTERVENTION, PREVENTION, POLICIES, AND

PREVALENCE, INCIDENCE, AND CONSEQUENCES, supra note 19, at 8. Seventy-six percent of

EXTENT, NATURE, AND CONSEQUENCES OF IPV, supra note 3, at 56.

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B. The Cycle of Violence Theory

The Tension-Building Phase

The tension-building phase consists of a gradual escalation of tension

27 Cycle of Violence, DOMESTICVIOLENCE.ORG, http://www.domesticviolence.org/cycle-ofviolence (last visited Mar. 12, 2012).

WALKER II, supra note 26, at 91.

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New England Law Review

blaming outside forces, like alcohol or problems at work, to accepting guilt

The Acute-Battering Phase

The acute-battering phase results from the discharge of the tensions

The Loving-Contrition Phase

The loving-contrition phase follows the acute-battering incident and

WALKER I, supra note 9, at 56-57.

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victimization.51 Prosecution of domestic abuse usually commences during

A major challenge to successfully prosecuting domestic-violence is that

See infra Part I.C.1-5.

See Kovach, supra note 53, at 1126.

Vilhauer, supra note 4, at 959.

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New England Law Review

refuse to testify because they are embarrassed or humiliated about the

Battered Womens Syndrome

Battered Womens Syndrome (BWS) can profoundly affect the

Orenstein, supra note 59, at 144.

WALKER II, supra note 26, at 42.

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Bias Against, and Credibility of, the Victim

Another major area of concern in prosecuting domestic violence is bias

Kovach, supra note 53, at 1126.

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New England Law Review

the same time pins responsibility squarely on the victim.85 Moreover,

The Massachusetts Confrontation Clause:

In 2004 and 2006, respectively, the Supreme Court redefined

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had a previous opportunity to cross-examine the declarant.95 Davis clarified

541 U.S. at 68.

833 N.E.2d at 555-56.

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situation.105 Moreover, the declarants statements to the emergency

Massachusetts Guide to Evidence Section 404(b)

Massachusetts has historically used a case-based system of evidence,

Id. at 465, 470.