[This opinion has been published in Ohio Official Reports at
82 Ohio St.3d 202.]
THE STATE OF OHIO, APPELLANT, v. NEMETH, APPELLEE.
[Cite as State v. Nemeth, 1998-Ohio-376.]
Criminal law—Murder—Evidence—Evid.R. 702—Expert testimony regarding
battered child syndrome in support of a claim of self-defense is admissible.
(No. 97-534—Submitted February 17, 1998—Decided June 24, 1998.)
APPEAL from the Court of Appeals for Jefferson County, No. 95-JE-32.
__________________
{¶ 1} In the early morning hours of January 7, 1995, sixteen-year-old Brian
Nemeth took a compound bow and arrows from his room and shot his mother,
Suzanne Nemeth, five times in the head and neck. She died eight days later. Brian
was tried for aggravated murder and convicted of the lesser included offense of
murder.
{¶ 2} At his trial, Brian testified that his mother had been abusive toward
him for several years. She drank to excess several nights a week and when she was
drinking she would become very angry with him—hitting, slapping, and
psychologically abusing him. She would call him derogatory, hurtful names and
would spend hours pounding and kicking on his bedroom door, screaming and
threatening him. On one occasion she burned him on the palm of his hand with a
cigarette, causing a blister and a scar. On another occasion, she cut him on his side
with a coat hanger, again leaving permanent scars. She had been seen hitting him
across the back with a stick and would also throw things at him. Brian’s allegations
of abuse by his mother are all supported by corroborating evidence.
{¶ 3} Brian testified that his mother’s drinking and abusive behavior had
been getting progressively worse since the fall of 1994, when she started working.
Due to the escalation in the abuse, Brian was unable to sleep, was crying a lot, and
was often shaking and feeling nervous. He had developed persistent headaches and
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stomach problems. He would try to get away from his mother by going to his
bedroom, locking the door, and holding it closed as she continued to beat on it until
she exhausted herself. This would last well into the early morning hours and Brian
would not sleep for fear that she would get into his room. The abuse was becoming
a nightly occurrence. Brian’s brother also testified that his mother’s drinking and
anger towards Brian had been escalating steadily since the fall of 1994.
{¶ 4} January 6 was Brian’s mother’s birthday. After school, Brian went to
the house of a friend, Nina Mitchell. He knew that his mother would be drinking
heavily and, therefore, he was afraid to go home. His mother called twice for him
to come home before speaking with Nina’s mother, Cynthia Mikita. When Cynthia
told Brian he should go home, Nina began crying, and begged Cynthia not to make
Brian go. Nina and Brian then tried to explain his mother’s abusive behaviors to
Cynthia.
{¶ 5} Cynthia did take Brian home, but told him to call if anything
happened. As soon as Cynthia left, Brian’s mother started screaming and cursing
at him and threw a full beer can at him, cutting his lip. He ran to his room and
locked the door. He testified that his mother’s tone had changed and she was
cursing him and threatening to beat his face in. He believed that he was in serious
danger. She had removed the phone from his room, so he could not call for help.
Instead, he climbed out the window and ran back to the Mikita home.
{¶ 6} Cynthia told Brian he could stay, but insisted on telling his mother
where he was. Rather than letting him stay at the Mikita home that night, Brian’s
mother came to the Mikita house and made him go back home with her. She was
visibly drunk. On the way home, she tried to hit and slap him, called him names,
and drove erratically. When they arrived at the house, he ran immediately to his
room. His mother threatened to kill him. He was crying and shaking. She pounded
on his door for several hours. His younger brother, Chris, whose room was next to
Brian’s, had retreated to the basement earlier in the night to avoid the fighting and
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to try to sleep. Brian remained in his wet clothes, cold, sweating, unable to focus,
and then, around 4:00 a.m., after hours of sitting there listening to his mother’s
threats and attempts to get into his room, Brian heard her walk away.
{¶ 7} Brian testified, “[S]he walked—I don’t know, [s]he kind of—she
must have gave up or something. All of a sudden, I just—everything just started
coming back to me and I just—the bow was in my room. … It was laying on my
chair and the way I was facing, I was facing the chair and I was like a robot. I just
picked it up and walked out in the hall. … I don’t even—I don’t even know
where I was walking to. … I just kept on walking out towards the living room
and I got to the end of the hall and my mom, she was laying there on the couch. I
just started shooting. … I only remember the first shot. I blacked out. I found
myself on the floor. I went back to my room.”
{¶ 8} After shooting his mother, Brian called the police and told them what
happened. When they did not arrive immediately, he called back and begged the
dispatcher to hurry. He cooperated with the paramedics and confessed to the police.
His mother had a blood-alcohol level of 0.20 when she was killed.
{¶ 9} The Juvenile Court of Jefferson County bound Brian over to the
Jefferson County Court of Common Pleas and he was subsequently tried as an adult
and convicted of murder. Prior to the bindover hearing, Brian was examined by
Dr. James R. Eisenberg, Ph.D. Dr. Eisenberg diagnosed Brian as suffering from
“battered child syndrome” and as having “very compatible symptoms as do women
in abusive relationships.” This evidence was presented at the bindover hearing.
The report indicated that at the time of the killing, Brian was frightened for his life
and terrified by the way his mother had been acting.
{¶ 10} Prior to trial, the state filed a motion in limine to prevent the defense
from introducing any psychological testimony relating to battered child syndrome.
Defense counsel filed a memorandum in opposition and a motion for appointment
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of an expert. The court overruled the defense request for an expert and barred any
use of the battered child syndrome in support of a claim of self-defense.
{¶ 11} Nonetheless, at the close of its case, the defense proffered the
testimony of Dr. Eisenberg as an expert on battered child syndrome. The proffered
testimony would have explained the psychological effects of long-term child abuse,
including the effect on a child’s perception of danger. The testimony was proffered
in support of a self-defense theory, as well as evidence that a charge on a lesser
included offense would be justified.
{¶ 12} The proffered testimony was not admitted into evidence. The
defense requested that the court charge the jury on voluntary manslaughter, as well
as the indicted crime of aggravated murder and its lesser included offense, murder.
The court overruled the request. The jury found Brian guilty of the lesser included
offense of murder.
{¶ 13} The court of appeals reversed Brian’s conviction and remanded the
cause for a new trial. The court of appeals held that the defense had put forth
sufficient evidence to warrant the admission of expert testimony regarding battered
child syndrome, in support of a claim of self-defense, and that preclusion of such
testimony was prejudicial.
{¶ 14} This cause is now before this court upon the allowance of a
discretionary appeal.
__________________
Stephen M. Stern, Jefferson County Prosecuting Attorney, and Christopher
D. Becker, Assistant Prosecuting Attorney, for appellant.
Adrian V. Hershey, for appellee.
__________________
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MOYER, C.J.
{¶ 15} The issue in this case is whether Ohio recognizes “battered child
syndrome” as a valid topic for expert testimony in the defense of parricide. Expert
testimony on battered child syndrome is admissible in Ohio courts when it is
relevant and meets the requirements of Evid.R. 702. The defendant, Brian Nemeth,
has been diagnosed with battered child syndrome and it is relevant to his defense
in a variety of ways. Further, the testimony proffered by the defense on battered
child syndrome meets the requirements of Evid.R. 702. Therefore, although the
syndrome is not recognized as an independent defense in Ohio, the trial court erred
in prohibiting expert testimony on the syndrome in support of a claim of self-defense or as justification for an instruction on a lesser included offense to murder.
We, therefore, affirm the decision of the court of appeals.
I
{¶ 16} Part of the difficulty we face in addressing this case is the inadequacy
of the shorthand labels we have tried to place on the psychological characteristics
associated with abused children and other battered persons. In Koss, we adopted
the term “battered woman syndrome” as a legal term of art referring to the
characteristics and symptoms associated with women who are battered by their
spouses or significant others. State v. Koss (1990), 49 Ohio St.3d 213,
551 N.E.2d
970. The term was defined by Lenore E. Walker in her book, The Battered Woman
Syndrome (1984), which explained the psychological effects suffered by battered
women.
{¶ 17} Today we are asked to address what some courts have loosely termed
“battered child syndrome.” Unlike battered woman syndrome, the term “battered
child syndrome” was long ago adopted as a term of art in the medical community
as the label for a set of physical symptoms that provide proof of child abuse. The
battered child syndrome has been used for over thirty years in this context and has
been accepted by the medical and legal community as a means of proving that a
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child has been abused. Only recently have attempts been made to expand this label
to include a set of psychological symptoms or behavioral effects suffered by victims
of child abuse. Many courts have been reluctant to allow evidence on the
psychological effects of battered child syndrome because they do not believe that
there is sufficient scientific proof that psychological markers can in and of
themselves identify a battered or abused child.
{¶ 18} Identifying an abused child based solely on a psychological profile,
however, is an entirely different matter than recognizing that children who have
been abused share a set of characteristic psychological symptoms.1 These
symptoms may not be exclusive to abused children, but most abused children
demonstrate these symptoms to varying degrees. See, generally, footnotes 2 and 3,
infra. These symptoms have been well documented and universally noted in the
psychiatric and medical community. Unfortunately, that community has not
adopted a universal label for these symptoms.
{¶ 19} Some experts have tried to incorporate the psychological effects of
child abuse under the label of “battered child syndrome”; some distinguish it from
the physical syndrome by calling it “child abuse syndrome”; still others address it
as a form of posttraumatic stress disorder or acute stress disorder. See Diagnostic
and Statistical Manual of Mental Disorders (4 Ed.1994) 424-431 (“DSM-IV”). It
has also been labeled as “characterological sequelae of prolonged victimization,”
and “traumatic bonding,” for example. See Posttraumatic Stress Disorder: DSM-IV and Beyond (1993) 219-220. Regardless of the label, however, the behavioral
and psychological characteristics which may manifest in abused children have been
universally and consistently recognized in the scientific community since at least
1. Since oral arguments were presented in this case, we have held that the prosecution in a child
abuse case may present expert testimony on the characteristic psychological symptoms of a typical
abused child as evidence supporting allegations that a particular child has been abused. See State
v. Stowers (1998), 81 Ohio St.3d 260,
690 N.E.2d 881.
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1962. See Kempe, Silverman, Steele, Droegemueller & Silver, The Battered-Child
Syndrome (1962), 181 J.Am.Med.Assn. 17, 18-20 (describing the psychological
and physiological harm caused by child abuse).
{¶ 20} Because the issue has been raised in this case using the term
“battered child syndrome” to refer to the psychological and behavioral
characteristics of abused children, we will continue to use this label throughout this
opinion, recognizing that this encompasses the same characteristics identified under
numerous labels and which are set forth most specifically under the diagnostic
criteria of posttraumatic stress disorder.
II
{¶ 21} The defense in this case did not ask that battered child syndrome be
recognized as a new defense or an independent justification for the killing of an
abusive parent. The proffer made at trial was limited to expert testimony that would
explain the psychological effects of long-term child abuse, and was proffered in
support of a self-defense theory as well as a charge on voluntary manslaughter. As
such, the issue before us is an evidentiary matter and is governed by the Ohio Rules
of Evidence. Because there was no basis for excluding the testimony under the
Rules of Evidence, and because we find that the trial court’s exclusion of this
testimony to be prejudicial to the defendant, we need not reach the constitutional
issues addressed by the court of appeals.
{¶ 22} We have previously held that “[t]he Ohio Rules of Evidence
establish adequate preconditions for admissibility of expert testimony ….” State
v. Williams (1983), 4 Ohio St.3d 53, 4 OBR 144,
446 N.E.2d 444, syllabus. Courts
should favor the admissibility of expert testimony whenever it is relevant and the
criteria of Evid.R. 702 are met. See
id. at 57-58, 4 OBR at 148,
446 N.E.2d at 447.
{¶ 23} Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Evid.R. 401. Evidence that
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would support a defendant’s explanation of the events at issue and would provide
evidence as to his possible state of mind at the time of the incident is clearly relevant
to his or her defense. In this case, the testimony on battered child syndrome, which
was proffered by the defense, is relevant for at least four separate purposes,
including the determination of whether Brian (1) had acted with prior calculation
and design as charged in the indictment, (2) had acted with purpose as required for
the lesser included offense of murder, (3) had created the confrontation or initiated
the aggression, and (4) had an honest belief that he was in imminent danger, a
necessary element in the affirmative defense of self-defense.
{¶ 24} General information on battered child syndrome would also tend to
show that Brian’s behavior was consistent with that of an abused child and would
lend support to his testimony that he had been abused both generally and just prior
to the killing. See State v. Stowers (1998), 81 Ohio St.3d 260, 262,
690 N.E.2d
881, 883-884. We have held that an expert may not offer an opinion as to the truth
of a child’s statement. However, an expert may provide testimony that supports
“the truth of the facts testified to by the child, or which assists the fact finder in
assessing the child’s veracity.” (Emphasis sic.)
Id. at 262-263,
690 N.E.2d at 884.
Expert testimony on battered child syndrome would, in this case, tend to enhance
the probability that Brian’s account of the facts leading up to the killing was truthful
and would lend credibility to his assertion that he was in a state of rage and
dissociation at the time of the killing. A diagnosis of battered child syndrome and
an explanation of its effects would therefore be relevant in determining whether the
case warranted a jury charge on voluntary manslaughter.
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III
{¶ 25} In addition to the requirement of relevancy, expert testimony must
meet the criteria of Evid.R. 702. Rule 702 provides that a witness may testify as an
expert if all of the following apply:
“(A) The witness’ testimony either relates to matters beyond the knowledge
or experience possessed by lay persons or dispels a misconception common among
lay persons;
“(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the testimony;
“(C) The witness’ testimony is based on reliable scientific, technical, or
other specialized information. … ”
{¶ 26} The first prong of the rule is satisfied in this case. This trial presents
precisely the kind of situation in which expert testimony is most necessary. As we
recognized in Koss, when we accepted evidence on battered woman syndrome,
testimony on the syndrome or psychological effects of abuse is essential to proving
the elements of a self-defense claim. Nonconfrontational killings do not fit the
general pattern of self-defense. Without expert testimony, a trier of fact may not
be able to understand that the defendant at the time of the killing could have had an
honest belief that he was in imminent danger of death or great bodily harm. Further,
it is difficult for the average person to understand the degree of helplessness an
abused child may feel. Thus, expert testimony would also “ ‘help dispel the
ordinary lay person’s perception that a [person] in a battering relationship is free to
leave at any time.’ ” Koss, 49 Ohio St.3d at 216,
551 N.E.2d at 973, quoting State
v. Hodges (1986),
239 Kan. 63, 68-69,
716 P.2d 563, 567. In either instance, the
expert testimony “ ‘is aimed at an area where the purported common knowledge of
the jury may be very much mistaken, an area where jurors’ logic, drawn from their
own experience, may lead to a wholly incorrect conclusion ….’ ” Koss at 217,
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551 N.E.2d at 974 (quoting State v. Kelly [1984],
97 N.J. 178, 206,
478 A.2d 364,
378).
{¶ 27} Expert testimony as to the effects of abuse may also help to counter
popular misconceptions about the nonreporting of abuse. Prolonged exposure to
abuse results in feelings of powerlessness, embarrassment, fear of reprisal,
isolation, and low self-esteem. See, generally, footnotes 2 and 3, infra. These
effects often prevent a child from seeking help from third parties. The abusive
parent also generally becomes adept at concealing the abuse from outsiders. Note,
Toffel, Crazy Women, Unharmed Men, and Evil Children: Confronting Myths
About Battered People Who Kill Their Abusers, and the Argument for Extending
Battering Syndrome Self-Defenses to all Victims of Domestic Violence (1996), 70
S.Cal.L.Rev. 337, 364. The effects of abuse thereby diminish the likelihood that
the defense will be able to present corroborating testimony of third parties.
{¶ 28} Absent corroborating evidence, a trier of fact is likely to believe that
the abuse allegations are fabricated in response to the charges levied against the
child-defendant. The existence and prevalence of such misconceptions are evident
in the transcript of this trial. The prosecution repeatedly stressed that Brian could
have left the house again, that he could have gone to his father or grandparents, that
he was not in actual imminent danger at the time of the killing, and implying that
he must have created the allegations of abuse after the fact because, otherwise, more
people would have known about it. Even the trial court judge questioned whether
there was corroborating evidence of abuse before granting the state’s motion in
limine, excluding testimony on battered child syndrome in connection with a claim
of self-defense.
{¶ 29} It is the lack of corroborating evidence that makes expert testimony
even more crucial in these cases. The defense needs expert testimony to refute the
seemingly logical conclusion that serious abuse could not be taking place if no one
outside the home was aware of it. Expert testimony is also necessary to dispel the
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misconception that a nonconfrontational killing cannot satisfy the elements of self-defense, and to counter prosecutorial attacks on the defendant’s credibility based
on the nonreporting of abusive incidents. In Koss, we accepted that expert
testimony is necessary to explain that the nonreporting of abuse and the failure to
retreat from an allegedly abusive environment are not inconsistent with a claim of
severe abuse. Surely, if we accept nonreporting and failure to retreat by adults, the
reasons for such conduct are even more understandable when a child is the subject
of the abuse.
{¶ 30} The second prong of the test has not been challenged. The trial court
disallowed any testimony as to battered child syndrome and did not specifically
challenge the qualifications of Dr. Eisenberg.
{¶ 31} The final requirement for the admission of testimony by experts is
whether the testimony is based on reliable scientific, technical, or other specialized
information. Dr. Eisenberg’s testimony was based on scientific, technical, or
otherwise specialized information. He is a trained psychologist who has specialized
training in the behavioral and psychological effects of child abuse. The only
question remaining is whether the information supporting his opinion is sufficiently
reliable.
IV
{¶ 32} Evid.R. 702 does not define “reliability” in the context of admitting
expert testimony. “Consistently with the intention to do no more than codify
existing holdings on the admissibility of expert testimony, the amended rule
[Evid.R. 702] does not attempt to define the standard of reliability but leaves that
to further development through case-law.” Evid.R. 702, July 1, 1994 Staff Note.
The Staff Note does, however, specifically endorse previous court holdings that
rejected the “ ‘general acceptance’ within a relevant scientific community” test
established in Frye v. United States (C.A.D.C.1923), 293 F. 1013. The Staff Note
also reinforced the directive that questions of reliability are to be directed at
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principles and methods used by an expert in reaching his or her conclusions, rather
than trying to determine whether the conclusions themselves are correct or credible.
{¶ 33} Thus, pursuant to the directives of this court in the Rules of
Evidence, and consistent with our previous holding in State v. Williams, scientific
opinions need not enjoy “general acceptance” in the relevant scientific community
in order to satisfy the reliability requirement of Evid.R. 702. Further, there need
not be any agreement in the scientific community regarding the expert’s actual
opinion or conclusion. The credibility of the conclusion and the relative weight it
should enjoy are determinations left to the trier of fact. See, e.g., State v. Buell
(1986), 22 Ohio St.3d 124, 132-133, 22 OBR 203, 210,
489 N.E.2d 795, 804.
“ ‘ “General scientific acceptance” is a proper condition for taking judicial notice
of scientific facts, but not a criterion for the admissibility of scientific evidence.
Any relevant conclusions which are supported by a qualified expert witness should
be received unless there are other reasons for exclusion.’ ” (Footnote omitted.)
State v. Williams,
4 Ohio St.3d at 57, 4 OBR at 147,
446 N.E.2d at 447, citing
McCormick, Evidence (2 Ed. Cleary Ed.1972) 491, Section 203.
{¶ 34} Prior to the 1994 amendment of Evid.R. 702, the threshold standard
of reliability for admission of expert testimony had been stated in a variety of ways.
In Koss, the court stated that “battered woman syndrome has gained substantial
scientific acceptance to warrant admissibility.” (Emphasis added.) State v. Koss,
49 Ohio St.3d at 217,
551 N.E.2d at 974. The General Assembly enacted R.C.
2901.06(A)(1) in 1990, which declares that battered woman syndrome is currently
a matter of “commonly accepted scientific knowledge.” (Emphasis added.) In State
v. Pierce, a unanimous court determined that reliability was not an issue to be
considered in determining admissibility, but instead goes solely to the weight of the
evidence. State v. Pierce (1992),
64 Ohio St.3d 490,
597 N.E.2d 107, paragraph
two of the syllabus, and 501,
597 N.E.2d at 115.
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{¶ 35} Since Pierce, however, Evid.R. 702 was amended, specifically
adding the requirement that the information forming the basis of the expert
testimony be “reliable.” We have decided only two cases concerned specifically
with Evid.R. 702 since the amendment: State v. Stowers, 81 Ohio St.3d 260,
690
N.E.2d 881, and Miller v. Bike Athletic Co. (1998),
80 Ohio St.3d 607,
687 N.E.2d
735.
{¶ 36} Stowers addressed psychological expert testimony as “specialized
knowledge” rather than “scientific or technical knowledge.” We held that expert
testimony based on “specialized knowledge” is admissible “ ‘if a person has
information which has been acquired by experience, training or education which
would assist the trier of fact in understanding the evidence or a fact in issue.’ ”
Stowers at 262, 690 N.E.2d at 883. This standard was taken from a pre-amendment
case, State v. Boston (1989),
46 Ohio St.3d 108,
545 N.E.2d 1220. At the time
Boston was decided, this standard simply reiterated the language of the evidentiary
rule. At that time, there was no requirement of reliability in the rule. Although the
Staff Note to the amended rule was clearly meant to codify this court’s
interpretation of the rule’s pre-amendment language, it also specifically notes that
the “assist the trier” language of the old rule (quoted as the standard in Stowers) is
vague and misleading and is replaced by the express requirements of the amended
rule. Part of this codification is an express requirement that the information
forming the basis of an expert’s opinion be reliable. As Stowers does not
specifically address the issue of reliability under the amended rule, we must look
elsewhere to determine what the threshold standard of reliability is, and whether
expert testimony on battered child syndrome meets that standard.
{¶ 37} In Miller, the court designated the following four factors to be
considered in evaluating the reliability of scientific evidence: (1) whether the
theory or technique has been tested, (2) whether it has been subjected to peer
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review, (3) whether there is a known or potential rate of error, and (4) whether the
methodology has gained general acceptance.
{¶ 38} These factors were adopted from Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993), 509 U.S. 579, 593-594,
113 S.Ct. 2786, 2797,
125
L.Ed.2d 469, 482-483. Both the United States Supreme Court in Daubert and this
court in Miller were careful to emphasize that none of these factors is a
determinative prerequisite to admissibility. Miller at 612-613,
687 N.E.2d at 741;
Daubert at 593,
113 S.Ct. at 2797,
125 L.Ed.2d at 483.
{¶ 39} Relevant evidence based on valid principles will satisfy the threshold
reliability standard for the admission of expert testimony. The credibility to be
afforded these principles and the expert’s conclusions remain a matter for the trier
of fact. The reliability requirement in Evid.R. 702 is a threshold determination that
should focus on a particular type of scientific evidence, not the truth or falsity of an
alleged scientific fact or truth. “ ‘In other words, the court need not make the initial
determination that the expert testimony or the evidence proffered is true before
submitting the information to the jury.’ ” State v. Pierce, 64 Ohio St.3d at 501,
597
N.E.2d at 115, quoting United States v. Jakobetz (C.A.2, 1992),
955 F.2d 786, 796-
797. While a clearer definition of reliability may need to be developed in order to
address other factual situations, the guidance currently available is sufficient for
this court to determine the admissibility of the testimony proffered in this case.
V
{¶ 40} Though it is not necessary to show general acceptance to pass the
threshold of reliability for the admission of expert testimony, the behavioral and
psychological effects of prolonged child abuse on the child have been generally
accepted in the medical and psychiatric communities and therefore unquestionably
meet the requisite level of reliability for admission as the subject of expert
testimony.
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{¶ 41} It is also well recognized in the scientific community that child abuse
need not involve excessive or debilitating physical violence to affect the emotional
and psychological development of the child. See Comment, Moreno, Killing
Daddy: Developing a Self-Defense Strategy for the Abused Child (1989), 137
U.Pa.L.Rev. 1281, 1302. “Child abuse consists of a multitude of nonaccidental
physical and psychological traumas to children, in the vast majority of cases, over
an extended period of time. Acts of abuse include such bodily violence as beating,
squeezing, lacerating, binding, burning, suffocating, poisoning, or exposing to
excess heat or cold. Abuse also includes such psychological traumas as sensory
overload with light, sound, stench, aversive taste, itching, pain, or prevention of
sleep and verbal overload with insults, accusations, and indoctrination.” Handbook
of Clinical Child Psychology (1983) 1220.
{¶ 42} The behavioral and psychological effects of child abuse, or battered
child syndrome, are most often discussed as a form of posttraumatic stress disorder
(“PTSD”). PTSD is an anxiety disorder listed in the DSM-IV, which categorizes
universally recognized mental disorders. This specific disorder has been
recognized in children at least since 1987 when the DSM-III-R was published. The
fourth and most recent edition of the manual specifically notes that PTSD can
manifest in children.2 The triggering event for posttraumatic stress disorder can be
any traumatic event that involved “actual or threatened death or serious injury, or a
threat to the physical integrity of self or others” and where the person’s response
involved “intense fear, helplessness, or horror.” DSM-IV at 427-428.
2. Many other medical sources recognize that PTSD can manifest in children as a result of child
abuse. See, e.g., Post-traumatic Stress Disorder: Assessment, Differential Diagnosis and Forensic
Evaluation (1990) 28; The Battered Child (4 Ed.1987) 295; Post-Traumatic Stress Disorder in
Children (1985) 135-152; Porterfield, Straight Talk About Post-traumatic Stress Disorder (1996)
77; Encyclopedia of Psychiatry, Psychology, and Psychoanalysis (1996) 94; Posttraumatic Stress
Disorder: DSM-IV and Beyond, supra, at 215-219; Kaplan and Sadock’s Synopsis of Psychiatry,
Behavioral Sciences, and Clinical Psychiatry (7 Ed.1994) 786.
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{¶ 43} The DSM-IV also identifies a specific set of symptoms that occur
when the triggering event is an interpersonal stressor such as childhood physical
abuse or domestic battering. Id. at 425. These effects include excessive fear and
anxiety, abnormal expressions of aggression or impaired impulse control,
reenacting or psychologically reexperiencing the abuse, avoidance (often in the
form of hypervigilance), helplessness, somatic complaints, and various forms of
dissociation. See, e.g., DSM-IV at 425; Handbook of Clinical Child Psychology,
supra, at 1228-1230; Williams, Post-Traumatic Stress Disorder and Child Sexual
Abuse: The Enduring Effects (1990) 134-135; Child Abuse and Neglect: A
Medical Reference (1981) 97-99; The APSAC Handbook on Child Maltreatment
(1996) 77-78; The Psychologically Battered Child (1986) 61-65; Posttraumatic
Stress Disorder: DSM-IV and Beyond, supra, at 215-223.
{¶ 44} This court has already recognized that posttraumatic stress disorder
in children is a proper subject for expert testimony. State v. Bidinost (1994), 71
Ohio St.3d 449,
644 N.E.2d 318, paragraph one of the syllabus.
{¶ 45} In addition to this explicit recognition of battered child syndrome,
the psychological effects of abuse suffered by battered children are equivalent to
the effects of prolonged abuse experienced by abused women and have been
recognized as appropriate for expert testimony in the context of battered women.
The psychiatric and legal communities have clearly accepted that despite any minor
differences in the degree of power differentials between the batterer and the abused,
the psychological effects of family violence are legally indistinguishable whether
suffered by children or adults.3
3. See, e.g., DSM-IV at 425; Posttraumatic Stress Disorder: DSM-IV and Beyond, supra, at 219-
220; State v. Janes (1993), 121 Wash.2d 220,
850 P.2d 495 (en banc); State v. Holden (Sept. 26,
1985), Cuyahoga App. No. 49566 unreported,
1985 WL 8630; Comment, Turk, Abuses and
Syndromes: Excuses or Justifications? (1997), 18 Whittier L.Rev. No. 4, 901, 925; Hicks,
Admissibility of Expert Testimony on the Psychology of the Battered Child (1987), 11 Law &
Psychol.Rev. 103, 105; Note, Toffel, Crazy Women, Unharmed Men, and Evil Children:
Confronting the Myths About Battered People Who Kill Their Abusers, and the Argument for
16
January Term, 1998
VI
{¶ 46} Several states have allowed the defendant to present expert
testimony of a “battered child” or “battered person” syndrome where a child has
killed or attempted to kill an abusive family member. See, e.g., State v. Janes
(1993), 121 Wash.2d 220,
850 P.2d 495 (en banc); State v. Hines (1997),
303
N.J.Super. 311, 324,
696 A.2d 780, 787 (State v. Janes cited with approval); State
v. Gachot (La.App.1992),
609 So.2d 269 (state law allows evidence of battered
child syndrome as support to claim of self-defense); Commonwealth v. Kacsmar
(1992),
421 Pa.Super. 64,
617 A.2d 725 (trial court improperly excluded evidence
of “battered person syndrome” where defendant claimed self-defense in shooting
of abusive brother); In Matter of Appeal in Maricopa Cty. (App.1994),
182 Ariz.
60,
893 P.2d 60; see, also, Margolick, When Child Kills Parent, It’s Sometimes to
Survive, N.Y. Times, Feb. 14, 1992 at A1, D20 (seventeen-year-old Donna Wisener
acquitted of nonconfrontational killing of abusive father after introducing
testimony on battered child syndrome in Texas).
{¶ 47} Still others, while not faced with the issue of expert testimony, have
recognized that abused children may exhibit identifiable psychological
characteristics that point to a causal connection between the abuse and the killing
of the abuser. See, e.g., People v. Cruickshank (1985), 105 A.D.2d 325,
484
N.Y.S.2d 328; State v. Crabtree (1991),
248 Kan. 33,
805 P.2d 1; see, also,
Chambers, Children Citing Self-Defense in Murder of Parents, N.Y. Times, Oct.
12, 1986, Section 1, at 38. In many of these cases, the court acknowledged that
abuse may have been a factor in the killing but did not accept a self-defense theory
because the killing occurred in a nonconfrontational setting. While self-defense
Extending Battered Syndrome Self-Defenses to All Victims of Domestic Violence (1996), 70 S.
Cal.L.Rev. No. 1, 337, 350-351. This listing is by no means comprehensive. Virtually every legal
journal which discusses battered child syndrome as a defense to parricide notes its similarity to
battered woman syndrome.
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SUPREME COURT OF OHIO
was not accepted as a viable defense, most of these cases recognized a diminished
level of culpability.
{¶ 48} Six states have enacted statutes that allow the presentation of
testimony regarding the psychological effects on victims of domestic violence,
including children, in cases where the victim of abuse is on trial for acts of violence
against the abuser. Tex.Code Crim. Pro. Art. 38.36(b)(2) (1997); Georgia Code 16-
3-21(d)(2) (1997); Nevada Rev. Stat. 48.061 (1997); La. Stat. Ann. 404(A)(2)
(1997); Cal. Evid.Code 1107 (1997)4; and Utah Crim.Code 76-2-402(5).5
VII
{¶ 49} While specific legislation may be helpful in defining the parameters
of a new defense, such legislative action is not necessary in order for us to determine
whether expert testimony concerning battered child syndrome meets the
evidentiary requirements of Evid.R. 702 and whether it should therefore be
admissible in appropriate cases. Battered child syndrome is not a new defense or
justification for murder. We are making no new law with this opinion. Pursuant to
well-established Rules of Evidence and case law dealing with the admission of
expert testimony, we hold that the proffered expert testimony on battered child
syndrome was both relevant and reliable and that the trial court in this case erred in
4. While the California statute refers specifically to the admission of expert testimony on battered
woman syndrome, it also allows testimony on the “physical, emotional, or mental effects upon the
beliefs, perceptions, or behavior of victims of domestic violence” as defined in Cal.Fam.Code 6211;
Cal.Evid. Code 1107 (1997). The definition of domestic violence under this Family Code section
includes abuse perpetrated against the child of a party and any person related by consanguinity or
affinity within the second degree. This would include parental abuse of children. Cal.Fam.Code,
Section 6211(f) (West 1998).
5. Although the Utah statute does not specifically deal with the admissibility of expert evidence,
the House Bill indicates that it is intended to clarify that otherwise competent evidence regarding a
victim’s response to patterns of abuse or violence in the parties’ relationship is to be considered by
the trier of fact when determining imminence or reasonableness in the act of self-defense. Utah
Crim.Code 76-2-402 (Michie 1997); Am.H.B. No. 13, Laws of Utah, Ch. 26, Section 2 (reprinted
in Utah Legislative Report 1994, at 18).
18
January Term, 1998
granting the motion prohibiting the testimony. Because the preclusion of such
testimony was prejudicial, we affirm the holding of the court of appeals, which
vacated the defendant’s conviction and remanded the cause for a new trial.
Judgment affirmed
and cause remanded.
PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
RESNICK, J., concurs in judgment.
DOUGLAS, J., dissents.
F.E. SWEENEY, J., dissents and would reverse the judgment of the court of
appeals.
__________________
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