The Problem
A disturbing pattern is emerging. The blind lumpers are coming.
There is a growing pattern of the State designating and attempting to use advocates now in domestic violence (“DV”) cases to lump these cases into the same shape and size. They are frequently calling “blind” experts who either intentionally or unintentionally know nothing about the specific case – except for the fact the Defendant is guilty. Their job is to explain to the jury how every bit of evidence in the case (or lack of evidence) points to Defendant’s guilt.
For some time now, in child sex cases you can usually count on the State to parade one advocate after another to the witness stand to shore up the weak aspects of the State’s case under the guise of being an expert under rule 702. They often use their “training and experience” in their malleable discipline to show the jury they are human polygraph machines.
Now they’re doing it in domestic violence cases, too.
In DV cases these witnesses are armed with charts and anecdotal theories such as the Power and Control Wheel (“PCW”) and Cycle of Violence (“COV”). There are ways to combat this tactic by both effective cross examination and legal efforts to either prevent the witness from testifying and/or preserving the matter for appeal.
Overviews and Goals of the Article
DV analysis and interpretation is a soft science to be sure. It’s difficult to have any confidence in empirical sociological or scientific research done due to the inability to reliably have controlled studies in this field. The little research that has been done tends to be wildly inconsistent and point in all directions. Academic papers and researchers who attempt to harmonize these inconsistencies have a difficult time doing so. Other groups entering the ‘academic’ fray in the debate are also attacked as having a specific agenda.
Because the expertise in DV cases tend to be “clinical” in nature as compared to “academic,” the topic lends itself to being difficult to cross-examine. Practitioners in the field are coming to testify, and they are armed with mountains of anecdotal evidence and scientific principles they learned at weekend conferences from teachers whose name they forgot. Cross examining them can be like trying to nail Jell-O to the wall.
What the State is really doing is manipulating Rule 702 to substitute advocates for experts, and thus far, the Courts have let them get away with it.
This article examines and discusses current trends and techniques utilized by prosecutors with regards to their expert witness practices. It is designed to assist the reader to effectively identify, cross examine, and preserve error when confronting the State’s DV experts.
“Blind” Experts
A blind expert is an expert brought in to testify who was not involved with the case. This person has typically not reviewed any discovery, conducted any independent interviews, nor generated any reports. These experts are often affiliated with third-party advocacy groups such as battered women’s shelters and/or children’s advocacy centers. It is not uncommon for these witnesses to be designated in every case by the state, and it’s further not uncommon for these witnesses to hop from one courtroom to another to testify in similar cases for your particular county’s DV prosecution team.
“Lumping” vs. “Splitting”
Charles Darwin originally coined the phrases “lumpers” and “splitters” which have gained more wide-acceptance over time. Healthy academic communities and disciplines have both. The lumper is the academic who tries to put everything in broad ‘lumps’ or big groups. The splitter is the academic who does the opposite. The splitter attempts to isolate cases and show smaller or more unique distinctions within groups. The lumper v. splitter debate can be applied to attempting to decode COVID-19, study dinosaurs, or the stock market.
The distinction helps to understand the State’s experts in DV cases are typically “lumpers.” That is, they lump everything into their broad world view frequently with little or no empirical data or support.
As always – when attacking an expert witness, it is fundamental to attack (often baseless) assumptions. Knowing you are dealing with a ‘lumper’ helps and gives you a base set of cross examination points.
Common Topics of State’s DV Experts
The Duluth Model
The Duluth Model is the most common batterer intervention program used in the United States as of 2006 and was developed as a way to reduce domestic violence against women. It was named after Duluth, Minnesota – the city where it was developed. The founder of the program was Ellen Pence, an activist. It is the framework of the BIPP (Battering Intervention and Prevention Program) course many courts require as a term and condition of community supervision.
Some staples of the model include the “Cycle of Violence” (“COV”) and the “Power and Control Wheel” (“PCW”) developed as teaching tools for the ‘re-education’ of offenders to address typically male violence towards women from a socially reinforced sense of entitlement.
The Cycle of Violence
The COV was developed by Lenore Walker in 1979. Her research was based on 120 battered women. Ms. Walker developed three phases in the cycle of violence:
- Tension Building Phase – where the abuser becomes more temperamental and critical of the victim. As the tension escalates, the victim feels as if she is “walking on eggshells.” The victim often placates the abuser.
- Acute Explosive Phase – Abuser verbally or physically attacks the victim.
- Honeymoon Phase – The batterer expresses remorse and promises to change.
Criticism and weaknesses of “The Cycle of Violence”
It Presumes Guilt
The COV comes with a flawed and fatal assumption if it’s being used as a method to prove guilt. It assumes Defendant is Guilty in the first place. For any of the supporting phases to be true – this base assumption also has to be true.
If you replace the very top assumption with its opposite – Defendant is innocent – then absolutely none of the other phases make logical sense. But this diagram shows how the echo-chamber logic is circular in the first place.
The COV doesn’t Account for Mental Illness or Substance Abuse
A major gap in the COV is it does not account for mental illness or substance abuse. Ms. Walker’s original theory had “power” and “control” as the main motivators for domestic abuse, yet those who practice criminal defense on a regular basis understand the roles of depression, anxiety, and other mental illnesses on these cases. Another unaddressed issue by the COV is substance abuse whether or not related to mental illness.1
The COV Converts Evidence of Innocence into Evidence of Guilt
Another criticism of the COV is it takes evidence of innocence and flips it into evidence of guilt with rhetoric alone. Is buying flowers for your spouse evidence of innocence or evidence of guilt? Is having a calm marriage where something both intimate partners agree was not domestic abuse in the first place evidence of a healthy relationship or is it ignoring an two-ton elephant?
The State’s blind lumper expert would argue buying flowers is evidence of guilt because it shows Defendant is trying to control and manipulate the ‘victim’ in the ‘honeymoon’ phase of the cycle of violence. Then again, some spouses are just nice to one another and have a perfectly healthy union.
COV was Developed and Based on Anecdotal Evidence
Lenore Walker has conceded the data set of women originally studied was a small set and were all involved in violent relationships. She further admitted the women were not randomly selected and they cannot be considered a legitimate data base from which to make specific generalizations.2
“Duluth Model Treatment” Fails to Stop Domestic Violence
While academic studies are ‘all over the map’ on DV, there are many studies which show the Duluth Model – despite being the most common treatment method – has little or no positive effect on violent behavior. Researchers found in 2011 “there is no solid empirical evidence for either the effectiveness or relative superiority of any of the current group interventions… the more rigorous the methodology of evaluation studies, the less encouraging their findings.”3
The Duluth Model Focuses Only on Men
Yet another criticism of the Duluth Model is it is focused on male perpetrators and insists male DV is due to patriarchy which condones violence. Critics claim the model is overly-confrontational rather than therapeutic and fails to deal with underlying psychological causes.
A leading critic of the Duluth Model is Donald Dutton, Psychology Professor at the University of British Columbia. He claims, “The Duluth Model was developed by people who didn’t understand anything about therapy.”4 He also argues lesbian battering is more prevalent than heterosexual battery by a 2 to 1 ratio.5 Additionally, author Phillip W. Cook points out male-dominance is absent in homosexual relationships so the Duluth Model blaming male patriarchy falls flat.6
The Power and Control Wheel
The “Power and Control Wheel” (“PCW”) is a diagram displaying a pattern whereby a batterer establishes and maintains control over his partner. While the COV addresses phases in the relationship, the PCW is supposed to demonstrate methods and motivations employed by an abuser. It includes subcategories such as “Male Privilege,” “Coercion and Threats” and “Minimizing, Denying and Blaming.”
Criticism of the PCW
Like the COV, the PCW is similarly not validated scientifically. Further, it suffers from the same fatal assumption the COV does – that is, for it to work, the entire ‘wheel’ must begin with the assumption Defendant is guilty in the first place.
The PCW actually compounds assumptions, though. It primarily assumes defendant is guilty. But then it goes on to further assume the motivations for his guilt. It assumes motivations for being a “batterer” are rooted in power and control. Even if the person is guilty in the manner they suggest – the PCW has a major ‘blind spot’ because the motivation may have nothing at all to do with power and control. It could be mental illness, addiction, or reciprocal domestic violence.
Countervailing Theories to the Duluth Model
Reciprocal Intimate Partner Violence
Reciprocal Intimate Partner Violence (“RIPV”) is also referred to as mutual violence and/or symmetrical violence. It is where both partners – in essence – take turns being the abused and the abuser. The thought that both intimate partners engage in domestic violence undermines both the COV and PCW because both of those assume the domestic violence, abuse, and manipulation to be unilateral.
Several studies place RIPV at anywhere between 42% and as high as 70% of the over-case count for domestic abuse occurrences. In a 2007 study published in the American Journal of Public Health, researchers found about half of the relationships which experienced DV – had violence characterized as reciprocal. In reciprocally violent relationships, it was women who were the aggressors 70% of the time although men inflicted more serious injuries on their partners.7
Dealing with Medical Testimony – Choking
Evidence of choking can be difficult to detect and evidence will not be present in all cases. One law enforcement report showed in 62% of strangulation cases the police officers saw no visible signs of the choking. In 22% of cases minor visible injuries such as redness or scratch marks were reported. Only 16% of cases had significant visible injuries such as bruises, red marks or rope burns. Voice changes occur in 50% of victims. Chin abrasions can be common too as the victim lowers their chin to instinctively protect their neck.8
Visible injuries may be fingernail scrapes, scratches, or lesions.9 Redness known as erythema may or may not darken to become a bruise. Some bruises may not appear for hours or days afterwards. Much bruising is caused by an assailant’s hand or thumb and can make a discernable pattern.10
Petechiae are small red spots in the eye which are evidence of ruptured capillaries (the smallest blood vessels in the body). They can sometimes be found underneath the eyelid. Petechiae can also be found around the eyes in the peri-orbital region or anywhere on the face or neck.11
How the State’s Blind Lumper Will Testify About Choking
If there is little or no physical proof of choking – The State’s blind lumper will likely testify your client is still guilty. It is no different than a SANE nurse brought in to a sexual assault trial with their sole purpose to turn evidence of innocence (a clean medical exam) into an evidentiary tie. For example, the State’s expert will say, “just because there’s no evidence of choking doesn’t mean he’s innocent.”
If there is physical evidence of choking – then it’s probably time to get a medical expert of your own involved – typically in forensic pathology.
Preserving Error
Consider analyzing error in reverse. Be cognizant of the Appellate Court’s standards of review when making the appropriate objection.
Under Texas Rules of Appellate Procedure the Court will either review an error as “Constitutional” or as “other error.”12 Constitutional error requires reversal “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”13 Non-Constitutional error or “other error” “…that does not affect substantial rights must be disregarded.”14
Translation – if it’s not Constitutional error, then it basically gets ignored on appeal.
Making All Objections Constitutional Error
Consider ‘Federalizing’ your objections to the State’s blind lumper expert. Possible objections could include objections based on the confrontation clause or to the Due Process Clause under the 5th and/or 14th Amendment.
The Confrontation Clause
Under the 6th Amendment to the US Constitution, a person has a right to confront accusers. The theory of Rule 702 further goes such an expert would have to concede both good and bad facts or scientific or technical nuances which may hurt the proffering party. The expert is an advocate for the science – not a particular party.
But the blind lumper expert is designed so they can’t be cross examined at all.
They don’t know any of the facts – so you can’t undermine their opinion there. They also frequently don’t rely on any specific authority such as treaties, empirical studies, or trade guidelines they will admit to – nor bring with them to Court.
Because the blind lumper is not tethered to any specific fact, circumstance, or academic principle – they are very difficult to cross-examine.
Due Process
If you really think about it – all objections rooted in the Texas Rules of Evidence can be characterized as “Due Process” objections, too. Again, if you are overruled on objections to ‘bolstering’ or on a Rule 702 objection the Court of Appeals will analyze any error as “other error” which simply won’t result in reversal. If the objection is couched as a Due Process objection – and the Court agrees it is error – then you stand a real chance at reversal.
“Blind Experts” – a Texas Tradition
Rule 702 – And How it’s Increasingly Useless in Stopping the Blind Lumpers
Here is a quick refresher on Rule 702 and the rule’s application with regards to the blind lumper witness. There is a critical distinction between the State and Federal version of Rule 702 which makes the blind lumper witness far easier to proffer as a witness in Texas Courts:
Tex.R.Evid. 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
Federal Rule 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case. (Emphasis Added).
In Federal cases the witness must demonstrate a firm basis in the facts of the case. State Courts have some control measures similar to the federal rules – but they are supplied by case law, and they are far looser than the federal requirements. Texas Courts further break-down expert witnesses into different categories based on how subjective the discipline may be.
Challenges to the Experts’ Qualifications Generally Fail on Appeal
Courts have permitted the use of expert testimony on the COV and its dynamics of PCW to fortify a complaining witness’s delay, reluctance, and inconsistencies in reporting abuse as well as other behavior, including recanting a report of abuse.15 16 17 As recently as the week prior to this paper being written, the Dallas Court of Appeals again held a “blind expert” was permissible.
To make matters even more impossible on this line of attack for the Defense – the Dallas Court held because the “blind” expert was so general in nature, any error committed would be harmless anyway.18 The trial court even issued a limiting instruction because of how weak the testimony was. This holding allowing the testimony is illogical. To be relevant in the first place, the expert would need to be able to assist the jury with a fact of consequence in the first place. The Court by holding the evidence was so inconsequential conceded the expert was irrelevant.
Rule 702’s “Fit” Requirement
Some of the language which supports scrutiny towards the “blind lumper” expert witness is the “fit” requirement. Expert witness testimony must “fit” the facts of the specific case to be relevant under Tex.R.Evid. 702. Jordan v. State, 928 S.W.2d, 550, 552 (Tex.Crim.App. 1996). “When examining the Rule 702 issue, the trial court must determine whether the expert “makes an effort to tie pertinent facts of the case to scientific principles which are the subject of his testimony.19
And then there is Bolstering
Bolstering is “any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantially contributing ‘to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’” Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993) (quoting former version of Tex.R.Evid. 401). Tex.R.Evid. 613(c) states, “Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility.
Checklist for Cross-Examining the Blind Lumper
Start in Opening Statement
Attack the blind lumper expert in your opening statement if you know they are coming. Let the jury know what a blind lumper is, how they hop from courtroom to courtroom, and how the only thing they are sure of is Defendant is Guilty.
705 Hearing
Rule 705 allows you to have a hearing outside the presence of the jury examining the expert’s opinion and the underlying facts and data supporting the opinion. Always request a 705 hearing to learn beforehand what, if anything, the expert has reviewed prior to court – and when they reviewed it. Chances are if you argue about them being a blind lumper in opening statement, they make take a crash course on the facts of your case in the hallway waiting to testify.
i.Hit “Blindness”
If your expert is blind – cross examine them on it. If you’re calling your own experts, enhance your expert’s credibility by comparing and contrasting their preparation with your own expert’s preparation. Don’t simply let the ‘blind’ expert off with one or two questions about how they didn’t review the case – ask them as many questions on the ‘blindness’ as you can:
Q: You didn’t talk with the complaining witness?
Q: You don’t have any social background on the complaining witness?
Q: Didn’t talk with the detective?
Q: Didn’t read any offense reports?
Q: Didn’t look at any pictures?
Q: Watch any of the videos?
Q: Look at any academic studies for this case?
Q: Didn’t review any medical records?
Hit Assumptions and Weaknesses of COV and PCW
Discuss the weaknesses and assumptions listed above about both the COV and the PCW. Remember, they both presume guilt and not innocence. Further, if they are being discussed in punishment – remember they proscribe particular underlying motives which ignore mental illness, RIPV, and substance abuse.
Follow the Money Trail
If the State’s expert witness is from an advocacy center or perhaps hospital or other organization “supporting the cause” of ending domestic violence – explore the financial ties, if any, between that organization and the elected DA. Do they donate? Is the DA trying to curry favor with these groups or vice-versa? Is the battered-women’s shelter providing blind lumper experts something they all concocted in a board room when the DA was hoping to get a donation for re-election? Maybe there is nothing there – and maybe your blind lumper knows nothing about it. Then again, maybe there is something there a jury would find interesting.
Solving the Problem of the Blind Lumper
Blind lumper expert witnesses called by the State manipulate the rules and put Defendant in the difficult spot of cross-examining a Jell-O like witness who isn’t tethered to any facts, any data, or any empirical research. They twist, bend and ultimately ‘lump’ all of their opinions into “he’s guilty.” It’s a real challenge of your complete advocacy skills both in front of a jury, to the trial judge, and even the Court of Appeals to put a stop to their practice. Hopefully, this helps.
Footnotes
- Twohey, Megan (2 January 2009). “How Can Domestic Violence Be Stopped?”. Chicago Tribune. Retrieved 28 January 2009.
- Walker, Lenore E. (1979) The Battered Woman. New York. Harper and Row.
- “The Effectiveness of Batterer Intervention Programs” fisafoundation.org. 2011. http://fisafoundation.org/wp-content/uploads/2011/10/BIPsEffectiveness.pdf
- Twohey, Megan (2 January 2009). “How Can Domestic Violence Be Stopped?”. Chicago Tribune. Retrieved 28 January 2009.
- Patriarchy and Wife Assault: The Ecological Fallacy, Violence & Victims 1994,9, (2), 125 – 140. (1994).
- Cook, Philip W. (2009). Abused Men: The Hidden Side of Domestic Violence. Santa Barbara, California: ABC-CLIO. pp. 36–39.
- Differences in Frequency of Violence and Reported Injury between Relationships with Reciprical and Nonreciprocal Intimate Partner Violence, Daniel J. Whitaker, Ph.D., Tadesse Haileyesus, MS, Monica Swahn, Ph.D. and Linda S. Saltzman, Ph.D., Am. J. Public Health 2007, May, 941-947. See attached.
- How to Improve Your Investigation and Prosecution of Strangulation Cases, Gael v. Strack and Dr. George McClane, October 1988.
- Id.
- Face and neck injuries due to resuscitation versus throttling. Forensic Science International, vol. 23, 1983, 109-15. Teet Harm and Jovan Rajs.
- Patechial Hemorrages: A review of Pahtogenisis. The American Journal of Forensic Medicine and Pathology. 15:3, Sept. 1994, 203-207. F.A. Jaffe.
- Tex.R.App.P. §§ 44.2(a) & (b).
- Tex.R.App.P. 44.2(a).
- Tex.R.App.P. 44.2(b).
- See Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no pet.) (allowing a witness to testify about general domestic violence behaviors, including that recantation of an initial accusation was consistent with the behavior of the typical battered woman, despite having no personal knowledge of defendant and victim).
- See also Brewer, 370 S.W.3d at 474 (upholding admission of general expert testimony on domestic violence cycle to assist the jury in understanding the victim’s delay in calling the police).
- Young v. State, 2019 WL 1647679, at *2 (Tex. App.—Beaumont Apr. 17, 2019, no pet.) (mem. op., not designated for publication) (holding testimony about the cycle of violence was admissible to explain text messages in which the defendant apologized for his violent actions and the complainant expressed forgiveness and a desire to maintain their relationship and drop criminal charges).
- Davis v. State, 2020 WL 5015276 (Tex.App. – Dallas August 25, 2020).
- Morales v. State, 32 S.W.3d 862, (Tex.Crim.App., 2000).
