WHAT DOES THE TRILOGY OF CASES INVLVING DAUBERT CHEMICAL MEAN FOR LAW ENFORCEMENT AND PROSECUTORS REGARDING ADMISSIBLITY OF EXPERT OPINION TESIMONY?

BY: Dr. Peter A. Barone, Esq.

When examining the rules of evidence governing demonstrative evidence in a case used to illustrate expert opinion testimony we see that the existing rules vary slightly from those that are in place to govern exhibits which are associated with the fact witnesses. When dealing with experts the attorney presenting the evidence to the court must first ensure that the exhibit illustrates an expert’s opinion. If they do this then they must then lay the foundational requirements necessary to introduce the expert’s opinion.  

On July 1, 2013 the Florida Legislature amended the relevant statute to replace the Frye Test with the Daubert test from Daubert v. Merrel Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). The Daubert test raises the following issues when evaluating whether to allow an expert’s testimony. In making the significant change the legislature in its codification of federal Daubert test, made clear that “pure opinion testimony” was no longer admissible. Daubert was expanded upon by the case of General Electric Company v. Joiner (1997) and Kumbo Tire Company Limited v. Carmichael (1997) which rendered the Daubert test applicable not only to new or novel scientific evidence, but to all expert opinion testimony. In the Daubert standard the proponent of the evidence has the burden of establishing the admissibility and they must accomplished this by the standard of the preponderance of the evidence.

When dealing with Expert Testimony the question of admissibility is naturally raised as relates to the demonstrative evidence being presented from which the expert intends to rely upon for the rendering of their expert opinion. It must be remembered that expert witnesses have their own set of rules for lay a foundation. The following steps must be accomplished and are necessary for the admission of an expert’s opinion and their corresponding exhibits. The opinion evidence must be helpful to the trier of the fact (jury in a jury trial and the bench if it is a bench trial); the witness, the expert, must be qualified as an expert; the opinion evidence must be applied to evidence offered at trial; and pursuant to section 90.403, Florida’s Statutes, the evidence, although technically relevant, must not present a substantial anger of unfair prejudice that outweighs it probative value Kruse v. State, 483 So. 2d 1383, 1384 (Fla. 4^th DCA 1986). 

In order to have the expert introduce tests such as drug test, DNA for blood or seaman or studies or experiments the proponent should argue that the expert relied on the proffered tests to render their opinions. This knowledge is critically important for the law enforcement official in that they are usually the individuals in a case that seeks out the expert in order to obtain the evidence they need to create the legal probable cause to either charge the suspect or have the Prosecutor seek an arrest warrant. One of the areas that presents an issue is when there is a shooting or murder and x-rays are required to be placed into evidence and it is important to understand that the doctor that read and interpreted the x-rays and wrote the report needs to be the same person (expert) who testified in the court proceeding.  

Experts using items such as computer animations or video recordings as demonstrative exhibits must remember that the use of these items require solid foundational requirements in that the items must fairly and accurately depict exactly what they are purported to show Smith v. Geico Gas Company 127 So. 3^d. 808, 810-11 (Fla. 2d. DCA 2013). The importance of this is that then the law enforcement official is seeking out an expert to produce and testify to these types of evidence they need to verify that the item is extremely accurate. It is important that the model or replica or model must accurately portray the object or the location which is at issue. When dealing with photographs and videos the law enforce official must be able to assure the accuracy and not be seen to have exaggerated or reduced the distances, or altering the apparent height or any other relevant measures to prevent a misleading depiction. This is especially an issue today in the technology which has now become common with the increased ability to have access to mechanisms to photograph-altering. When dealing with the use of digitally enhanced stills can survive if they prove to be fair and accurate and it is demonstrated that there is no distortion of the stills on the original videotape.  The judge’s ultimate decision in the admission of demonstrative evidence is based upon the judge’s decision because it will depend on the accuracy of the exhibit to the actual facts of the case as well as the strength of the objections that may come from the other side. 

                                                          References

General Electric Company v. Joiner 522 US 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 – (Supreme Court, 1997).
Kruse v. State, 483 So. 2d 1383, 1384 (Fla. 4^th DCA 1986).
Kumbo Tire Company Limited v. Carmichael (1997).
Smith v. Geico Gas Company 127 So. 3^d. 808, 810-11 (Fla. 2d. DCA 2013).

Relevant and Material Evidence along with Methods of Assessing Admissibility

Relevant and Material Evidence along with Methods of Assessing Admissibility

BY: Dr. Peter A. Barone, Esq.

Methods of Assessment for Admissibility of Evidence
After evidence has been located, collected, impounded, and presented to the prosecutor for use in proving the elements of the crimes being charged in a criminal case the prosecutor must assess it and decide if it is usable in any criminal hearings and in a criminal trial. Once this has been accomplished the prosecutor will follow the required procedures in the rules of evidence to have the items of evidence admitted into evidence in either one of the aforementioned criminal proceedings. It is at this time that all of the evidence being presented to be admitted must be put through an assessment process by the judge wherein the judge will assess the evidence to determine its admissibility into a hearing or trial as evidence. The judge is the only one that can admit evidence into a hearing or a trial as evidence. Understanding the manner in which evidence is determined by the judge to be relevant and admissible or non-relevant and inadmissible is critical to the successful performance of law enforcement officials at all levels.

Relevant Evidence
It is important to fully understand that all evidence has the potential to be admissible; however, it must meet standards, and one of them it that is must have relevance to the case and the issue at hand. When discussing relevance there must be an understanding by law enforcement officers that for an item to admitted into evidence, any legal proceeding or in a trial it must be what is known in law as Relevant Evidence which means that it must be evidence that has any tendency to prove or disprove a pertinent fact relating to the issue at hand (Hails, 2012).

All of the evidence which is admitted into evidence in a legal proceeding must be related to the issues of the case being litigated and if evidence is not related or connected to the case it should not be admitted. For evidence to be admitted it only need make the existence of a fact of consequence more probable or less probable than it would be without the item being introduced as evidence.

One of the most important benchmark of admissibility is relevance of the evidence to the matter being prosecuted. The Federal Rule of Evidence 402 states, in part states that all relevant evidence is admissible, except as otherwise provided in the rules of evidence.

The goal of this rule is to allow parties to present all of the evidence that bears on the issue to be decided, and to keep out all evidence that is immaterial or that lacks what is known as Probative  Value. Evidence that is offered to help prove something that is not at issue is immaterial.

EXAMPLE OF EVIDENCE BEING IMMATERIAL
As an example here the fact that a defendant attends church every week is immaterial, and thus irrelevant, to a charge of running a red light. Probative value is a tendency to make the existence of any material fact more or less probable. For instance, evidence that a murder defendant ate spaghetti on the day of the murder would normally be irrelevant because people who eat spaghetti are not more or less likely to commit murder, as compared with other people. However, if spaghetti sauce were found at the murder scene, the fact that the defendant ate spaghetti that day would have probative value and thus would be relevant evidence.

EXAMPLE OF RELEVANT EVIDENCE
An example of Relevant Evidence would be the testimonial evidence of a witness who observed a man breaking into a building during the night would be relevant evidence to prove a burglary. In addition, if a friend testified that the same man who was breaking into the building was supposed to be at work during the time of the burglary; however, this friend advised that the man called in sick that particular night and was not working like he was supposed to be. This statement would be considered to be testimonial evidence and would also be considered to be relevant evidence due to the fact that it would demonstrate that the man was not at work and could have been somewhere else and possibly committing the burglary.

However, if there was no vehicle seen at the scene of the burglary and no one saw this person of interest with a car, near a car or a car in the area of the burglary and the same man that advised that the person of interest was not at work advises that this person drives a blue 4 door Camaro. This information would not be relevant to the case and would not be admissible due to it not having any tendency to prove or disprove a pertinent fact or issue at hand. On the other hand, if the same friend advised that he did not see the person of interest at work that night and that he drives a blue 4 door Camaro that the person of interest always parks next to him and the night of the burglary he did not see the blue Camaro when he arrived at work, when he left for lunch and when he left at the end of his shift.

EXAMPLE OF RELEVANT EVIDENCE NOT BEING ADMISSIBLE DUE TO BEING PREJUDICIAL
The major reason for admitting evidence in a legal proceeding such as a Motion to Dismiss; Preliminary Hearing, or a Trial is to provide the jurors with information directly relating to the crime being charged and to determine if the evidence presented by the prosecution can convince the jury as a whole that the person standing trial is guilty of having committed the crimes they are charged with in the indictment or information. Previously, as was presented in chapter one, it as a requirement for jurors to be informed of the facts and issues of the case; however, over the centuries the change has occurred to where the only information the system wants the jurors to know is what is presented to them in the legal proceeding. The other major aspect of this mindset is that the system insists on the jurors being provided information or evidence that is directly relevant to the actual case that is not prejudicial and does not evoke emotion in the jurors so they make a rational decision and not an emotional one. This is why any evidence which will be so inflammatory and such emotion provoking, notwithstanding its relevancy, cannot be admitted due to it prejudicial effect on the jurors.

Sometimes relevant evidence can also be inadmissible and the reason would have nothing to do with it being logically relevant to the issues at hand in the trial. One of the reasons for inadmissibility is if evidence, such as a photograph of a dead victim, has a tendency to unduly prejudice or inflame the minds of the individuals who are sitting on a jury.

A prime example is one that where a murder occurs and the prosecutor attempts to admit photographs of the victim which happen to be really vivid and gruesome of the bloody victim which would depict the victim; however, the prejudice that the picture of the bloody body would outweigh the probative value of the picture by creating a danger of unfair prejudice to the defendant by having them focus on the gory and horrific sight of the blood. It must be remembered that in the United States the defendant is considered to be innocent until proven guilty and this presumption of innocence is paramount in the United States Legal System.

EXAMPLE OF RELEVANT EVIDENCE NOT BEING ADMISSIBLE DUE TO BEING CONFUSING
The same reason as to why relevant evidence cannot and is not supposed to be admitted into a hearing or trial when it is horrific and possesses the potential of causing prejudice towards the accused and would create an unfair environment for the defendant, is why relevant evidence that can cause confusion in the minds of jurors cannot and should not be admitted into evidence in a legal proceeding or trial.

Relevant evidence can also be excluded or inadmissible if the item being admitted could tend to cause confusion or if it can create a number of side issues and that trial time would be squandered if this evidence is admitted into the trial. In addition, evidence can also be excluded if it is so remote or so detached or speculative in time or in place that only a very feeble or weak logical inference can be drawn from it.

Balancing Test for Admissibility of Relevant Evidence
It is the responsibility of the judge in either a Bench Trial or a Jury Trial to determine if evidence meets the test of relevancy and if will be admitted. A Balancing Test must be performed and this is a process and procedure which is conducted by the judge in a hearing or a trial when either the prosecution or defense attempts to present evidence to be admitted into evidence. When the court makes this decision regarding admissibility the judge must examine the evidence to determine if relevant evidence is going to be admitted or excluded due to it being prejudicial, confusing, remote, unfair or otherwise time-consuming. The Federal Rules of Procedure, FRE403, advises that a judge may exclude relevant evidence, in the judge opinion, that the probative value of the evidence being present is substantially outweighed by the danger of some type of unfair prejudice, or some type of confusion of the existing issues at hand which in turn could create unfair prejudice, or misleading the jury, or by some type of undue delay by admitting the evidence being presented.

MATERIAL EVIDENCE
In addition to evidence being assessed via the balancing test to determine its relevancy a second issue is also critical in evidence being admitted into a legal proceeding or trial and that is whether the evidence being presented is Material Evidence. It is extremely important to understand the difference between relevancy and materiality of evidence. The concept of Material Evidence is referred to as whether or not a fact is one of consequence to the actual case at hand. It is important to understand that issues regarding balancing, which are prominent in relevancy, is not included in the definition of materiality; so when speaking of materiality it is appropriate to discuss the concept of materiality or immateriality facts as part of the basic formula for relevance which is the major key in the balancing test and admissibility (Hails, 2012).

As with the determination of relevancy the judge is the individual who is charged with making the determination of whether or not facts are of consequence in a case is or is not material. The federal law and state laws are the ones that defines the elements of a crimes and defenses that in part determine materiality in any given instance when evidence is presented for admission in a hearing or trial. When making this determination the judge must review and examine the information, indictment and complaint in a criminal case because these documents are what set the limits of what is a material fact in any criminal case.

EXAMPLE OF WHAT IS MATERIAL
If a defendant is currently charged and on trial for murder and the prosecutor is attempting to have evidence introduced that would discuss the fact that the defendant possesses a gun collection which contains a very rare .45 caliber six shooter from the 1890’s and used a very special type of black powder load. At the scene of the murder police located a .45 caliber weapon on the scene along with the same type of ammunition which was located in the remaining cylinder of the firearm.

Evidence being presented for admission which demonstrated that the defendant and the victim had a very fierce verbal altercation that came close to escalating to a physical confrontation if it weren’t for mutual friends being present to get between them just a few hours before the victim was found shot would have something to do with the case at hand and would be considered to be material. Evidence of a witness who works next door to the location where the victim was found shot in the head advised that she saw the defendant walking swiftly from the doorway leading to where the victim was shot just after she heard what she believed to be a gun shot. This would have something to do with the case and would be considered to be material to the case at hand. 

EXAMPLE OF WHAT IS NOT MATERIAL
If a defendant is currently charged and on trial for murder and the prosecutor is attempting to have evidence introduced that would discuss the cost of the shoes of the victim was wearing at the time of their death, when this was not a robbery for clothing, and has nothing at all to do with the actual murder, this evidence will be determined to not be material to the case and would be ruled inadmissible.

                                                  Reference

Hails, J. (2012). Criminal Evidence 8^th Ed. Stamford, CT.: Cengage Learning.

The Confrontation Clause of the Sixth Amendment versus the Self-created Loss of the Privilege by consent, or at times even by misconduct Examined in Illinois v. Allen

The Confrontation Clause of the Sixth Amendment versus the Self-created Loss of the Privilege by consent, or at times even by misconduct Examined in Illinois v. Allen

BY: Dr. Peter A. Barone, Esq.

It is understood that an accused has the right to be present at his or her trial and has the right, under the Confrontation Clause of the Sixth Amendment, but does that same defendant have the right to be present during a trial when they voluntarily and intentionally cause a disruption of the trial proceedings is an important question that is addressed in the following assessment via the case of Illinois v. Allen, 397 U.S. 337 (1970).

The constitutional right of an accused to be present at his trial must be considered in this context because in addition to that right there is also a requirement that the dignity and decorum of the courtroom also be maintained and upheld. An examination of The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” (Klotter, 2000).  The Supreme Court has held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States Pointer v. Texas, 380 U.S. 400 (1965).  

One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U.S. 370 (1982). The question presented in this case, Illinois v. Allen (1970 is whether an accused can claim the benefit of this constitutional right to remain in the courtroom while, at the same time, he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial. Activities by the defendant such as these would not allow for a just and fair trial for either the defense or the prosecution and could also be a designed activity wherein the defendant is attempting to solicit a mistrial which would be in the defendants favor due to the prosecution having to try the defendant again at an additional cost of time and money.

In the case of Illinois v. Allen, 397 U.S. 337 (1970), the Respondent, who was on trial for robbery, was removed from the courtroom for repeated disruptive behavior and the use of vile and abusive language directed at the trial judge, notwithstanding the judge's prior warning that removal would follow another outburst. Appointed counsel represented respondent during the period respondent was not allowed in the courtroom, principally the presentation of the State's case. Having given some assurances of good conduct, respondent was allowed to return to the courtroom while appointed counsel presented his defense. Respondent was convicted. Following the State Supreme Court's affirmance, respondent filed a petition for a writ of habeas corpus in federal court, contending that he had been deprived of his right under the Sixth and Fourteenth Amendments to confront the witnesses against him. The District Court declined to issue the writ. The Court of Appeals reversed, holding that a defendant's Sixth Amendment right to attend his own trial was so "absolute" that, regardless of how unruly his conduct, he could never be held to have lost that right so long as he insisted on it, as respondent had.                                                                                                                                               

The Court of Appeals felt that the defendant's Sixth Amendment right to be present at his own trial was so "absolute" that, no matter how unruly or disruptive the defendant's conduct might be, he could never be held to have lost that right so long as he continued to insist upon it, as Allen clearly did. Therefore the Court of Appeals concluded that a trial judge could never expel a defendant from his own trial, and that the judge's ultimate remedy, when faced with an obstreperous defendant, like Allen, who determines to make his trial impossible, is to bind and gag him. An assessment of the Court of Appeals decision in this case appears to be bereft of logic in that if the defendant acts in this manner during the trial how can the trial proceed and how can any evidence be presented and heard or absorbed by the jury who has the responsibility to make an informed decision as to the defendant being guilty not guilty; with the logical answer being they cannot.

In reviewing the appeal in this case Illinois v. Allen (1970), the Supreme Court felt that they could not agree that the Sixth Amendment, the cases upon which the Court of Appeals relied, or any other cases of this Court so handicap a trial judge in conducting a criminal trial. The broad dicta in Hopt v. Utah, supra, and Lewis v. United States, 146 U.S. 370 (1892), that a trial can never continue in the defendant's absence have been expressly rejected Diaz v. United States, 223 U.S. 442 (1912). The Supreme Court accepted instead the statement of Mr. Justice Cardozo, who, speaking for the Court in Snyder v. Massachusetts, 291 U.S. 106 (1934), said: "No doubt the privilege of personally confronting witnesses may be lost by consent, or at times even by misconduct."  397 U.S. 343.

Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, U.S 464 (1938), the Court explicitly held that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course. be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. Looking at the situation which was presented to the trial court judge in the instant case the decision by the Supreme Court made logical sense and afforded the defendant with the opportunity to keep himself in the court room during the trial in a normal capacity, have himself removed or be present in a less than comfortable position yet still adhering to his Sixth Amendment Right.

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. The Justices in their opinion believe that the when a trial judge is confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.

No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.

Therefore, there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward. Over a half century ago, this Court, in Diaz v. United States, 223 U.S. 442, 223, 223 U.S. 457-458 (1912) approved to be what the governing principle is. The Supreme Court quoted from Falk v. United States, 15 App. D.C. 446 (1899), the case of an accused who appeared at his trial but fled the jurisdiction before it was completed. The court proceeded in his absence, and a verdict of guilty was returned. In affirming the conviction over the accused's objection that he could not be convicted in his absence, the Court of Appeals for the District of Columbia said:

"It does not seem to us to be consonant with the dictates of common sense that an accused person should be at liberty, whenever he pleased, to break up a trial already commenced which could, in the end, result in a mistrial benefiting him and going against the prosecution. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it. This would be a travesty of justice which could not be tolerated. The Court does not appear to think that any rule of law or constitutional principle leads to any conclusion that would be so disastrous as well to the administration of justice as to the true interests of civil liberty” Falk v. United States, 15 App. D.C. 446 (1899).

The question is one of broad public policy, whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries and turn them into a solemn farce, and ultimately compel society, for its own safety, to restrict the operation of the principle of personal liberty. Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong.

To allow the disruptive activities of a defendant like respondent to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.

Of course, no action against an unruly defendant is permissible except after he has been fully and fairly informed that his conduct is wrong and intolerable, and warned of the possible consequences of continued misbehavior. In reviewing the instant case it is apparent that the record makes clear that respondent was so informed and warned in this case. Thus, there can be no doubt that respondent, by persisting in his reprehensible conduct, surrendered his right to be present at the trial.

As the Court points out, several remedies are available to the judge faced with a defendant bent on disrupting his trial. He can have him bound, shackled, and gagged; he can hold him in civil or criminal contempt; he can exclude him from the trial and carry on in his absence. No doubt other methods can be devised I join the Court's opinion, and agree that the Constitution does not require or prohibit the adoption of any of these courses. The constitutional right to be present can be surrendered if it is abused for the purpose of frustrating the trial. Due process does not require the presence of the defendant if his presence means that there will be no orderly process at all. However, I also agree with the Court that these three methods are not equally acceptable. In particular, shackling and gagging a defendant is surely the least acceptable of them. It offends not only judicial dignity and decorum, but also that respect for the individual which is the lifeblood of the law. It must be remembered that the court is forced to make the decision that normally would not have to be made but for the voluntary disruptive actions of the defendant. The defendant is entering into this area of the court making the decision due to the defendant’s unclean hands and the defendant cannot expect to be able to act in this manner and have the entire trial process be derailed due to their petulant child-like behavior.  

A suggestion would be that when a defendant is excluded from his trial, the court should make reasonable efforts to enable him to communicate with his attorney, and, if possible, to keep apprised of the progress of his trial. Once the court has removed the contumacious defendant, it is not weakness to mitigate the disadvantages of his expulsion as far as technologically possible in the circumstances.

It is apparent from the Court’s decision that a defendant can lose his right to be present at trial if, following the judge's warning that he will be removed if his disruptive behavior continues, he nevertheless insists on conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. He can reclaim the right to be present as soon as he is willing to comport himself with decorum and respect. Pp. 397 U.S. 342 -343.

The Court examined what a trial judge was confronted with, during a criminal trial, by a defendant's disruptive conduct could do regarding the exercising of the court’s discretion to meet the circumstances of the case during these types of activities, and though no single formula is best for all situations, the Court advised that there are at least three constitutionally permissible approaches for the court's handling of an obstreperous defendant: (1) bind and gag him as a last resort, thereby keeping him present; (2) cite him for criminal or civil contempt; or (3) remove him from the courtroom, while the trial continues, until he promises to conduct himself properly. Pp. 397 U.S. 343 -346.

The decision of the court, which was based on the presented facts of this case, was that the trial judge did not abuse his discretion, and the respondent, through his disruptive behavior lost his right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution.

                                                          References

Diaz v. United States, 223 U.S. 442, 223, 223 U.S. 457-458 (1912).

Falk v. United States, 15 App. D.C. 446 (1899).
Hopt v. Utah, supra, and Lewis v. United States, 146 U.S. 370 (1892).
Illinois v. Allen, 397 U.S. 337 (1970).
Johnson v. Zerbst, 304 U.S. 458, U.S 464 (1938).
Klotter, J.C, (2000). Criminal Evidence 7^th Ed. Cincinnati, OH: Anderson Publishing.
Lewis v. United States, 146 U.S. 370 (1892).
Pointer v. Texas, 380 U.S. 400 (1965).  
Snyder v. Massachusetts, 291 U.S. 106 (1934).
 

Unreliable Evidence: Hearsay Evidence

Unreliable Evidence: Hearsay Evidence
BY: Dr. Peter A. Barone, Esq.

There are other types of evidence that are not admitted into hearings and trials even though it may have a bearing on the case and that is if the evidence being presented is considered to be unreliable. The types of evidence which are in this category are those of opinion evidence and hearsay. Either one of these types of evidence would not be allowed due to it being unreliable (McCormick, 1992).

EVIDENCE OF UNRELIABLE EVIDENCE
As an example of the type of evidence which could be relevant but would not be allowed in as being admissible evidence. If a shooting takes place on the street and law enforcement responds to do the investigation. During the investigation by the officer he or she speaks to an individual who was sitting in their car and had a perfect view of exactly what occurred during the shooting. Notwithstanding the information that can be provided by this particular witness the information is very relevant to the investigation; however, this information being presented by the police officer is going to be considered to be inadmissible because it is considered to be hearsay.

It violates the confrontation clause where the defendant has the right to confront witnesses against them and that would mean the defense would not get the chance to confront the actual witness who witnessed the event if the officer was allowed to testify. However, if the person that actually observed the actions comes forth and is presented as a witness then her testimony will be seen as being admissible and the right for the accused to confront the witnesses against them would be accomplished. 

Hearsay Evidence
Hearsay evidence is evidence that is an out of court statement which is then made in court to prove the truth of the matter asserted. In other words, hearsay is evidence that was made by someone other than the witness while testifying at the hearing in question and that it offered to prove the truth of the matter asserted. Basically someone who was not there and did not hear or experience the event or conversation themselves but hear it from someone else and  does not have their own observations or experiences to rely on for validity or veracity.  This absolutely prevents the defendant from confronting or examining the person who says they were told about the event or comments. When this occurs valid confrontation cannot occur between the defendant and the witness conveying what they were told.

 

Cumulative Evidence Rule

By: Dr. Peter A. Barone, Esq.

It is important for the law enforcement official to know and understand what it meant by the term cumulative evidence. Under the “Cumulative Evidence Rule,” the improper admission or exclusion of evidence which is merely repetitious or duplicative is deemed harmless error on the theory that it did not affect the verdict. The rule is applicable in a wide variety of situations where evidence on a certain issue has been admitted during the trial and other related evidence on the same matter has been improperly admitted or excluded. For example, the rule has been applied where one witness testified on a subject and another witness was erroneously permitted or prevented from testifying on the same subject. It has been applied where testimony or an affidavit was admitted into evidence and a deposition on the same matter was wrongfully excluded.  It also has been applied where pictures of an injury have been admitted and slides of the same injury have been excluded. Essentially, the cumulative evidence rule is based on the premise that reversal is not required where there is evidence in the record which "neutralizes" the prejudice resulting from the improper admission or exclusion of evidence on the same subject. However, the error is not harmless in a cumulative sense unless the neutralizing evidence has the same probative effect as the evidence improperly excluded or admitted. That is, to be truly cumulative, the evidence must be of the "same kind tending to prove the same point." This happens a great deal when there are two or more officers on a scene that competently observe something or even if there is an officer and civilian there are still two or more people that can testify to the same facts of what they observed and what occurred.

Evidentiary Hearing

Evidentiary Hearing

 

By: Dr. Peter A. Barone, Esq.

When there are questions regarding the admissibility of various items of evidence into a criminal proceeding and criminal trials the attorneys file motions before the court so they can have an Evidentiary Hearing for the judge to make the determination as to whether or not the items being presented for admission as evidence meet the requirements for admissibility.  This happens a great deal when one of the parties is trying to claim a privilege.

Not everyone is aware of what an evidentiary hearing is or when it is used or may occur. There  are many law enforcement officials who are somewhat confused as to the use of an evidentiary hearing in a criminal case. When using the term evidentiary hearing is a term that is used to describe a proceeding where evidence, such as witness or expert testimony and documentation is presented to the court in order to reach a decision on a particular matter. These hearings generally take place prior to trial. Now during these hearings information and evidence is presented to demonstrate if the item at issue being presented to the court for admission is admissible under the rule of evidence.

There are certain requirements that must be met prior to the court's scheduling of an evidentiary hearing. When scheduling an evidentiary hearing the defendant the defendant is required to and must establish his or her right to actually having an evidentiary hearing. This occurs when a defendant's motion and the government’s response to such motion establish a dispute as to material facts. To accomplish this a competent criminal defense attorney will need to allege specific and detailed facts to make the court aware of disputed issues of fact that must be resolved during a evidentiary hearing.  Regarding an evidentiary hearing it is popular to make general assertions of alleged constitutional violations; however, this will not compel a court to conduct an evidentiary hearing and the prosecutor will challenge motions by the defense alleging constitutional violations.

Looking at an evidentiary hearing from the standpoint of formulating defense strategy a pretrial motion and evidentiary hearings can be a valuable tool. The reason for this is that a pretrial suppression motion requiring an evidentiary hearing typically will lead to the disclosure of additional discovery earlier than usual. This discovery can be invaluable for trial preparation. It actually gives the defense an additional bite of the apple and the chance to see all of the evidence and also seeing how each witness testifies under the pressure of cross-examination. To examine this actual action it is technically an evidentiary hearing anytime a court hears and considers evidence to make a legal decision.  This can actually occurs in many different contexts, including a motion for belated appeal, hearing on a motion for ineffective counsel (Klotter, 2000).  

An evidentiary hearing in criminal cases is most commonly referring to a hearing that occurs as part of a violation of probation case.  When someone charged with a violation of probation and does not resolve the case with an admission or dismissal of the violation of probation, the case will ultimately resolves with an evidentiary hearing.  An evidentiary hearing is the equivalent of a trial for a law violation and the defendant does not have all of the same rights that they would in a normal trial. During the evidentiary hearing, the State Attorney’s Office will call witnesses and present evidence attempting to prove the probationer violated their probation.  The Accused will also have the opportunity to call witnesses, present evidence and present argument.  

There are actually two (2) types of violation of probations and they are technical violations and substantive violations.  An evidentiary hearing can occur on either a technical or substantive violation. The State is forced to prove the violation by a preponderance of evidence which is less than what is required in an appeal or a family law trial being clear and convincing evidence and much less than what is required in a criminal trial which is beyond and to the exclusion of a reasonable doubt. Generally, the majority of evidentiary hearings concern a probationer’s ability to pay the many, many costs associated with probation (Klotter, 2000). 

                                                        Reference

Klotter, J.C, (2000). Criminal Evidence 7^th Ed. Cincinnati, OH: Anderson Publishing.

 

 

 

 

 

                                                       

 

 

Thirteenth Juror Being the Sitting Judge during the Trial and a Successor Judge with a Rebuttable Presumption Regarding the Issue of Witnesses Demeanor

Rebuttable Presumption Regarding the Issue of Witnesses Demeanor
Dr. Peter A. Barone, Esq.

Most non-attorneys, and even some attorneys who have not been prosecutors or criminal defense attorneys, are usually not familiar with the Thirteenth Juror in a criminal case. This is a critical issue in that one of the focal points in the most recent United States Supreme Court decision advising that the Florida Death Penalty cases are illegal is based upon the fact that only the jury can make the decision of the whether a person should be sentenced to death or sentenced to life in prison. The issue is that in Florida the judge takes the suggestion of the jury and then the judge makes the decision as to whether the defendant will get the death penalty and that is not valid. In the Thirteenth Juror situation the judge has a duty to assess the evidence like a juror does and only weighs in when the jury does not appear to have made the correct verdict in relation to the evidence which was presented and this is critical because in addition there is a Double Jeopardy Clause issue here also. It is important to remember that the judge assessing the weight of the evidence is similar to the juror declaring a mistrial and not an acquittal which does not allow for the protection of the Double Jeopardy Clause.

In the area of Criminal Law when a Judge tries a case without a jury, which is called a Bench Trial, the judge happens to be both the trier of the law and the trier of the facts. The judge makes the decisions as to the law and admission of evidence into a trial and also is the trier of the facts where the judge is responsible to make the decision as to the defendant being guilty or not guilty. In a jury trial the jury is the entity that actual has the responsibility to make the decision as to the facts presented and if the facts come up to the standard of proof of beyond a reasonable doubt for a conviction saying that the defendant is guilty of the charges he or she has been charged with in the indictment or information. This process and procedure is all for the keeping the integrity of due process and protection of the rights of the defendant. In a trial where the state is not seeking the death penalty there are usually 6 jurors that are making the decision as to whether the defendant is guilty or not guilty. In a Capital case, where the state is asking for the Death Penalty, there is a requirement for the jury to have 12 members and not 6. However, there is another protective mechanism provided to the defendant.

In addition to the 12 jurors listening to the facts presented in the form of evidence and then deliberating with each other during the deliberation process there is another juror who is not part of the deliberation process but who has listened to all the evidence and has the right and duty to make a decision regarding the verdict in certain circumstances and that is the trial judge.

In both the states of Tennessee and Florida in a criminal trial 12 jurors are tasked with determining a verdict against a defendant and under the laws of both of these states and several others the trial judge has a duty to act as the 13^th juror. The judge is not able to deliberate with the juror; however, the judge has the duty to provide and independent layer of review and protection in the assessing the weight of the evidence which was presented to the jury in the trial. The examining of the weight of the evidence by the trial judge requires consideration of a number of factors, including resolving conflicting evidence presented at trial. The task of examining the weight of the evidence by the trial judge requires consideration of a number of factors, including resolving conflicting evidence presented at the trial. If, during the assessment process, the trial judge makes the determination that the weight of the evidence presented during the trial is actually (against the verdict), the trial judge must grant a new trial for the defendant. This 13^th Juror activity is solidified and there is no challenge to this judicial requirement (Tennessee v. Ellis, 2015).

In a Tennessee case there was another issue presented to the court and the question presented to the Court was “whether a successor judge may act at the 13^th juror in cases in which the original trial judge is not available to act in this 13^th juror capacity not having been the judge who was present when the testimony was actually presented during the trial. The Court presented a very logical response and rules that a successor judge, after carefully considering the record from the trial, MAY act as the 13^th juror in all cases EXCEPT in the very rare occasion in which (the demeanor of the witness was the critical issue in weighing the evidence that led to the verdict delivered by the sitting jury (Tennessee v. Ellis, 2015).

This decision makes absolute sense in that the majority of testimony is pretty straight forward and the body language is commensurate with what is being said by the person giving the testimony. However, since 85% of our communication is via body language and  if the witness giving testimony’s words do not match his body language or facial expressions then this is something that jury instructions advises jurors that they can take anything into consideration regarding a witness who testifies so if the successor judge was not present during the testimony and did not have the opportunity to have observed the witness testifying and would not have the same opportunity as the previous judge who was actually present during the testimony and was able to observe the demeanor of the witness while they were testifying. So if this is the case then the Court has ruled that the 13 juror rule is valid and that the presumption could only be rebutted when the “demeanor” of a witness is the critical issue involved in resolving the issue.

In the Tennessee case the Court determined that the demeanor of the witness was NOT the critical issue and that, as a result, the successor judge acted properly in serving as the 13^th juror in this case in determining that the weight of the evidence supported the jury’s guilty verdict. In addition, one of the justices advised that the test that needs to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned that verdict (Griffis v. Hill, 1969).

In the case of Tibbs v. Florida (1982) the Florida Supreme Court reversed the petitioner’s murder and rape convictions from a jury trial was based on the weight of the evidence, a retrial is not barred by the Double Jeopardy Clause of the Fifth Amendment as made applicable to the States by the Due Process Clause of the Fourteenth Amendment.

The Court made it clear that there is a distinction between a convictions based on the “weight of the evidence” unlike a reversal based on “insufficient evidence” where the Double Jeopardy Clause precludes a retrial. If the conviction is based on “insufficiency of the evidence” then that means that if a conviction is based on insufficient evidence, and the jury made their decision based upon that little amount of information presented then that is a valid verdict and due to the evidence being insufficient the Double Jeopardy Clause precludes a retrial. However, when the reversal of the conviction is based on the weight of the evidence does not mean that he only proper verdict was an acquittal. Instead the appellate court sits as a 13^th Juror and disagrees with the jury’s resolution of conflicting testimony. Just as a deadlocked jury does not result in an acquittal barring retrial under the Double Jeopardy Clause, an appellate court’s disagreement with the juror’s weighing of the evidence does not require the special deference accorded verdicts of acquittal. A reversal based on the weight of the evidence can occur only after the State has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek an acquittal which provides the defendant a second chance and does not amount to government oppression of the sort against which the Double Jeopardy Clause was intended to protect. In addition, when a trial court takes the required role of a 13^th Juror that too does not bar a retrial by the Double Jeopardy Clause of the Fourteenth Amendment which is similar to the same reasons stated for the appellate court (Tibbs v. Florida, 1982).

                                                          Reference
Griffis v. Hill, (1969).
Tennessee v. Ellis, 2015)
Tibbs v. Florida, (1982).

 

 

Male Domestic Violence Victims Experience from a Conflict Theoretical Perspective

Male Domestic Violence Victims Experience from a Conflict Theoretical Perspective

BY:  Dr. Peter A. Barone, Esq.

To describe a male victim’s experiences from a conflict theory perspective there must first be a basic understanding of the tents of conflict theory as apply to familial structure and domestic violence. The best method for the experiences of male victim of IPV to be accurately conveyed is via various studies and their findings (Creswell, 2009; Leedy and Ormrod, 2010). Straus (1980) advises there are several versions of conflict theory. The Marxist and Conflict Management versions address conflict resolution and when addressing the micro-level they deal with laws, and maintain the family as an important social institution. In these versions male dominance is maintained via formal and informal norms along with females being socialized into supporting the males’ position of dominance (Engel, 1993). There is also a political rebellion aspect of these versions which have a direct nexus to explaining the high rate of IPV perpetrated by females, or anyone who finds themselves in the subordinate position. The theory posits that if both men and women were able to maintain equality it would prevent a large amount of IPV (Straus, 1980).

There is a functionalist version of conflict theory which posits that conflict is necessary in society assisting in avoiding stagnation thus leading to social transformation. Dahrendorf (1958) posits resolutions are placed upon individuals by dominants via violence. Straus (1980) discusses the use of a Conflict Tactics Scale (CTS) used to assess conflict which addresses ways to address conflict either by intellectual, verbal aggression, or violence which is in line with what is presented by Leary et al., (2006) dealing with frustration and aggression experienced in a conflict situation. 

Conflict theory posits society exists in a state of continuous conflict due to people vying for a finite amount of resources, power, while striving to accomplish and maintain their self-interests. Conflict is intrinsic in various groups to include families (Straus, 2005 in Bergen, Edleson, and Renzetti). This struggle creates conflict where people will attempt to use various methods to address the conflict. When the situation is perceived to be critical they resort to the use of threats, manipulation, and ultimately force in an attempt to either maintain their status quo or obtain more power, possessions, and control allowing satisfaction of their interests (Straus, 2006). The ultimate goal is to resolve the conflict in their favor. The actions are all geared toward the person protecting their own interests (Akers and Sellers, 2009).

The basic tenets of conflict theory apply directly to the family units which possess power, money, goods, land, and freedom of choices all satisfying a person’s interests. In groups, and families, people may share interests with other members; however, they also possess their own distinct interests. With limited resources and struggles for control within a family, there is the propensity for the use of violence by the person who is dominant to maintain their status and protect their ability to secure their interests. The protecting of personal interests and the ability to use IPV is gender indifferent (Smithey and Straus, 2006).

The use of domination, fear, threats, psychological and physical violence has devastating effects (Straus, 1980). Feminist posit males being the constant aggressor using IPV to maintain their dominance (Collins, 1974). However, non-feminist conflict theory assumes an equality which includes dominance from a male or female having a desire to protect their interests; thus enhancing the propensity for IPV to subordinate their mate, keep their status quo, or reach a more equitable position by either partner occurring when subordinate victims rebel and move upward. This is human based, and not gender based (Blackwell and Piquero, 2005; Hines, 2007; Straus, 2006).

The literature shows, that from a male victim’s conflict theory perspective, the impact this conflict has is serious. The situation is seen as critical due to the total role transformation and a contradiction from societal role indoctrination of dominant male to the dominated victim. The literature describes the male victim experience being lost, hurt, betrayed, abused, degraded, humiliated, emasculated, ineffectual, frustrated and angry (Hines, 2007). Johnson (1995, 2006) describes males victims as mostly white, 40 years old, professionally employed full time, having a couple of years of college, with an income of $50,000.00. These descriptions show that males at all levels can be victimized. All of these factors lead the male to experience a serious questioning of his masculinity, doubting his dominant role and position as head of household, which has been socially created as an accepted image by society. These feelings create a need for a decision to comply, survive, or to take action to save his interest while taking the most conducive and viable path to regain power and control over achieving his goals and interests (Garcia, Soria, and Hurwirtz, 2007).

The male victim experiences a transformation of the basic dynamics and context of the environment into a conflicted situation feeling demoralized. These events cause the male victim to experience a real need to assess the existing conflict and its severity, which is based upon his perception, which has been created via past life experiences (Gibson, 1966, 1986). The assessment is the most crucial activity because the male will view things through the lenses of his socialization process and mind set of his socially accepted position. If the male victim perceives the need for maintaining control and accomplishment of his interests as paramount to his relationship with his partner that will guide his path. However, if the male victim believes he is in a situation where he is not financially, emotionally, psychologically, or physically able to move forward then that will also weigh heavily in his decision and course of action (Connell, 1987; Gibson, 1986). These are the same issues faced by female victims experiencing IPV and IPT (Hines, 2007).

Connell (1987) advises that via social norms and values many males have a large amount of pressure put upon them in the form of socially prescribed roles which require them to behave in prescribed manners and to preserve an elevated stance of invulnerability. Males have been indoctrinated with the mind-set that to be a real man requires one to be sturdy (Leary et al., 2006; Nisbett and Cohen, 1996). In addition, cultural norms and influences also play heavily into the decision making process Leary et al., 2006). Connell (1987) advised that some societies and cultures espouse that real men do not talk about feelings or emotions, nor do they ask for assistance for their problems, and this is even more the case as relates to issues with IPV and private family matters (Archer, 2006). These social values and norms create strong pressure and the mindsets of having to be strong, work through it, regain control and preserve his reputation and do this via whatever means necessary to include the use of aggression, force, or violence, which in many societies is seen as being acceptable actions for men. If the male feels like this can not be accomplished they become even more demoralized (Garcia et al., 2007).

The realization of experiencing pressure and depression from emasculation occurring over and over; along with the seriousness of the acts of IPV not ending, and the perception of no alternative to regain his socially pronounced status, the male could believe violence to be the only logical solution (Garcia et al., 2007). In accordance with conflict theory he is now experiencing what it is like to be the dominated one; however, in this position he can accept it; try to change things, or try to regain his position. If the victimization is more than he can stand, he can attempt to use whatever means possible to become dominant again and allow for him to obtain his self-interests. Straus (2006) advises society creates an inequality existing amid partners which increases the probability of the occurrence of IPV due to the dominance existing in the relationship by one of the partners. Everyone has conflicting self-interests to a degree and these self-interests necessitate maintenance via their position to be maintained via the use of force if the situation necessitates it.

In intimate partner conflicted situations, the role of perception can not be underestimated, Gibson (1986) advises that a key aspect of interpretation of all actions is the perception of the actions by the viewing person via their individual lenses. Once the receiver processes the information through their lenses they then assign meaning and value to what they perceive. Via this process they decide what action they need to take (Gibson, 1966, 1986). A perceived conflict by the male victim can create complacency, acquiescence, limited resistance, or to defiance, rebellion leading to hostility. An even worse situation is when the male perceives conflict which is not acknowledged by the female due to her being in the dominant position and seeing things as being the way she wants them. This ignoring of the existing conflict is very likely to create a very high level of hostility (McDonald and Leary, 2005; Strauss, 2006).

The male victim’s perspective here places the issue at being close to irresolvable due to the non-acknowledgement of the issue. The problem now is with no issue, there can be no conflict to resolve, thus creating an irresolvable conflict for the male leading to great disrespect, frustration, and the need to use whatever means to regain power and control to resolve the conflict to place things back to where they were prior to the conflict arising (Finkel and Campbell, 2001). If the conflicted situation rises to this level there is a good chance that the IPV can translates into Intimate Partner Homicide (IPH) (Starr, Hobart, and Fawcett, 2004). This situation is based on the experience of the male victim and his perception of the reality of the circumstances and ignoring by the female aggressor (Hines and Douglas, 2008; Langlands and Ward, 2009; Twenge, Catanese, & Baumeister, 2003). It appears from the literature that male victims experience a plethora of situations, feelings, and emotions. 
                                                           References
Archer, J. (2006). Cross-cultural differences in physical aggression between partners: A social-role analysis. Personality and Social Psychological Review. 10(2), 133-153.                                              
Akers, R.L., & Sellers, C.S. (2009). Criminological theories: Introduction, evaluation, and empirical investigations. Chicago: University of Chicago Press.
Bergen, R.K., Edleson, J.E., & Renzetti, C.M. (2005). Violence against women: Classic papers.  Boston, MA: Allyn and Bacon.
Bernard, T. (1984). Control criticisms of strain theories. Journal of Research in Crime and Delinquency, 21, 353-372.
Bernburg, J. (2002). Anomie, social change and crime. The British Journal of Criminology, 42, 729-742.
Bitektine, A. (2008) Prospective case study design: qualitative method for deductive theory testing. Organizational Research Methods, 11(1): 160-180.
Blackwell, B.S., Piquero, A.R. (2005). On the relationships between gender, power
control, self-control, and crime. Journal of Criminal Justice 33(1), 1-17. doi:
10.1016/j.jcrimjus.2004.10.001
Bogdan, R., and Taylor, S.J. (1975). Introduction to qualitative research methods : A
phenomenological approach to the social sciences. New York, NY: John Wiley.
Bordens, K.S., & Abbott, B.B. (2008). Research design and methods a process approach
            (8^thed.). New York, NY: McGraw Hill Companies.
Bottwell, B.B., & Beaver, K.M. (2010). The international transmission of low self-control. Journal of Research in Crime and Delinquency, 47, 174-209. 
Briody, L. M. (2001). “A test of general strain theory.” Criminology, 39, 9-36.
Buker, H. (2011). Formation of self-control: Gottfredson and Hirschi's general theory of
crime and beyond. Aggression and Violent Behavior, 16(3), 265-276
Burgess, R.L., & Akers, R.L. (1966b). A differential association reinforcement theory of
             criminal behavior. Downers Grove, IL: Intervarsity Press.
Busch, A., & Rosenberg, M. (2005). Comparing women and men arrested for domestic violence: A preliminary report. Journal of Family Violence, 19, 49-58.
Buston, K., Parry-Jones, W., Livingston, M., Bogan, A., and Wood, S. (1998).
            Qualitative research. British Journal of Psychiatry 38(4), 197-199.
Caelli, K., Ray, L., & Mill, J. (2003). “Clear as mud”: Toward greater clarity in generic
qualitative research. International Journal of Qualitative Methods, 2(2), 1-13.
Chamlin, M.B., & Cochran, J.K. (1995). Assessing Messner and Rosenfeld’s institutional
    anomie theory: A partial test. Criminology, 33(3), 411-429. doi: 10.111/j.1745-9125
Carney, M.M., Buttell, F., & Dutton, D.G. (2007). Women who perpetrate intimate
partner violence: A review of the literature with recommendations for treatment Aggression and Violent Behavior, 12(1), 108-115.
Chappell, A.T., & Picquero, A.R. (2004). Applying social learning theory. Deviant Behavior, 25,
            89-108.
Clinard, Marshall B. (1968) Sociology of Deviant Behavior New York: Holt.
Cloward, R. (1959). (1960). Delinquency and opportunity. NY: Free Press.
Cloward, R., & Ohlin, L. (1960). Delinquency and opportunity, New York, NY: Free Press.
Cohen, A. (1955). Delinquency boys, New York, NY: Free Press.
Cohen, A. (1965). “The sociology of the deviant act: Anomie theory and beyond.” American Sociological Review, 30, 5-14.
Collins, R. (1974). Conflict sociology. New York, NY: Academic Press.
Connell, R. (1987). Gender and power: Society, the person and sexual politics. Allen & Unwin, Sydney.
Creswell, J. W. (2009). Research design: qualitative, quantitative, and mixed methods           
approaches (3rd ed.). Thousand Oaks, CA: Sage Publications.
Darendorf, R. (1958). Toward a theory of social conflict. Journal of Conflict Resolution, 2, 170-183.
Davis, R.L. (2010). Domestic violence related deaths. Journal of Aggression, Conflict, and    Peace Research, 2(2). 44-52.
DeKeseredy, W.S., & Schwartz, M.D. (2003). Backlash and whiplash: A critique of statistics Canada’s 1999 general social survey on victimization. Online Journal Studies,1(1),  Retrieved on July 30, 2011 from http://ojjs.icaap.org/issues/1.1/dekeseredy-schwartz.html.
Denscombe, M. (2008). Communities of practice: A research paradigm for the missed methods approach. Journal of Mixed Methods Research, 2, 270-283.
Denzin, N.K. & Lincoln, Y.S. (2005). The Sage handbook of qualitative research (3rd ed.). Thousand Oaks, CA: Sage.
Douglas, E.M., & Straus, M.A. (2003). Corporal punishment experienced university students in 17 countries nd its relation to assault and injury of dating partners. Paper presented at the European Society of Criminology, Helsinki, Finland.
Dunnaway, G.R., Cullen, F.T., Burton, Jr., V.S., & Evans, T.D. (2000). “The myth of social class and crime revisited: An examination of class and adult criminality,” Criminology, 38, 589-632.
Easton, K.L.. McComish, J.F., & Greenberg, R. (2000). Avoid common pitfalls in 
             qualitative data collection and transcription. Qualitative Health Research,  10,703- 708.
Engel, C.C. (1993). Posttraumatic stress disorder symptoms and precombat sexual and physical abuse in desert storm veterans. The Journal of Nervous and Mental Disease, 1, 683-688.
Finkel, E.J., & Campbell, W.K. (2001). Self-control and accommodation in close relationships:
An interdependence analysis. Journal of Personality and Social Psychology, 81, 263-277.
Garcia, L., Soria, C., & Hurwitz, E.L. (2007). Homicides and intimate partner violence:
A literature review. Trauma, Violence, & Abuse, 8(4), 370-383.
Gibson, J. J. (1966). The senses considered as perceptual systems. Boston, MA: Hougton Mifflin
Gibson, James J. (1986). The Ecological Approach to Visual Perception. Hillsdale, NJ:
Lawrence Erlbaum.
Hines, D.A. (2007). Post traumatic stress symptoms among men who sustain partner violence: An international multistate study of university students. Psychology of Men & Masculinity, 8(4), 225-239.
Hines, D.A., and Douglas, E. M. (2008). Symptoms of post traumatic stress disorder in men who sustain intimate partner violence: A study of help seeking and community samples. Psychology of Men & Masculinity, 12(2).
Johnson, M.P. (1995). Patriarchal terrorism and common couple violence: Two forms of
violence against women. Journal of Marriage and Family, 57, 283-294.
Johnson, M.P. (2006). Conflict and control: Gender symmetry and asymmetry in domestic
violence. Violence Against Women, 12(11), 1003-1018.
Kaufman, J.M. (2009). Gendered responses to serious strain: The argument for a general strain theory of deviance. Justice Quarterly, 26(3), 410-444. doi: 10.1080/07418820802427866
Kobayashi, E., Vazsonyi, A. T., Chen, P., & Sharp, S. (2010). A culturally nuanced test of Gottfredson and Hirschi’s “General Theory:” Dimensionality and generalizability in Japan and the United States. International Criminal Justice Review, 20(2), 112-131.
King, G., Koehane, R.O., & Verrba, S. (1994). Designing social inquiry: Scientific Inference in Qualitative Research. Princeton, NJ: Princeton University Press.
Kinn, S. & Curzio, J. (2005).  Integrating qualitative and quantitative research methods.
            Journal of Research in Nursing, 10(3), 317–336.
Kimmel, M.S. (2002). Gender symmetry in domestic violence: A substantive and
            methodological research review. Violence Against Women, Special Issue:  Women’s Use of Violence in Intimate Relationships, 8(11), 1332-1363.
Kleck, G., and Chiricos, T. (2002). “Unemployment and property crime: A target-specific
assessment of opportunity and motivation as mediating factors,” Criminology, 40, 649-680.
Kornhauser, R.R. (1978). Social sources of delinquency, Chicago, IL: University of Chicago Press.
Krohn, M.D. (1999). Social learning theory: The continuing development of a
perspective. Theoretical Criminology, 3, 462-476.
Krohn, M.D., Akers, R.L., Radosevich, M.J., & Lanza-Kaduce, L. (1982). Norm qualities
and adolescent drinking and drug behavior. Journal of Drug Issues, 12, 343-359.
Krohn, M.D., Skinner, W.F., Massey, J.L, & Akers, R.L. (1985). Social learning theory and adolescent cigarette smoking: A longitudinal study. Social Problem, 32, 455-473.
Krug, E. G., Dahlberg, L. L., Mercy, J. A., Zwi, A. G., & Lozano, R. (Eds.) (2002).
World report on violence and health. Geneva: World Health Organization.
Leary, M.R., Twenge, J.M., & Quinlivan, E. (2006). Interpersonal rejection as a determinant of anger and aggression. Personality and Social Psychology Review, 10(2), 111-132.
Leedy, P.D. & Ormond, J.E. (2010). Practical research design planning and design (10^th
            ed.). Upper Saddle River, NJ: Pearson Education Inc.
McDonald, G., & Leary, M.R. (2005). Why does social exclusion hurt? The relationship between social and physical pain. Psychological Bulletin, 131, 202-223.
Nisbett, R.E., & Cohen, D. (1996). Culture of honor: The psychology of violence in the South. Denver, CO: Westview Press.
Smithey, M., & Straus, M.A. (2004). Primary prevention of intimate partner violence. Crime   Prevention, 68, 239-276.
Starr, K., Hobart, M., & Fawcett, J. (2004). Findings and recommendations from the Washington State Domestic Violence Fatality Review. Washington State Coalition Against Domestic Violence, pp.1-98.
Straus, M. (1980). Victims and aggressors in martial violence. American Behavioral Scientist, 23, 681-704.
Straus, M. A. (2005). Reflections on measuring intra-family conflict and violence, pp. 195-197. In Violence Against Women: Classic Papers, edited by R.K. Bergen, J. L. Edleson, and C. M. Renzetti. Boston: Pearson Education Inc.
Twenge, J.M., Cantanese, K.R., & Baumiester, R.F. (2003). Social exclusion and the
deconstructed state: Time perception, meaningless, lethargy, lack of emotion, and
self-awareness. Journal of Personality and Social Psychology, 85, 409-423.