308 S.C.

74 (1992)
417 S.E.2d 88

Bertha M. ROBINSON, Petitioner

v.
STATE of South Carolina, Respondent.
23642
Supreme Court of South Carolina.
Submitted March 24, 1992.
Decided April 27, 1992.
Rehearing Denied June 3, 1992.
*75 Asst. Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, Columbia, for
petitioner.
Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, and Asst. Atty. Gen., Delbert H. Singleton,
Jr., Columbia, for respondent.
Submitted Mar. 24, 1992;
Decided Apr. 27, 1992.
Reh. Den. June 3, 1992.
HARWELL, Chief Justice:
We granted petitioner Bertha M. Robinson's petition for writ of certiorari to determine whether the postconviction relief
(PCR) judge erred in finding that trial counsel's performance was not deficient. Petitioner alleges that trial counsel did
not properly present the battered woman's syndrome in an effort to establish her claim of self-defense. We affirm.

*76 I. FACTS
In the early morning hours of December 22, 1979, petitioner shot her husband behind his right ear with a .22 caliber
pistol while he slept. A jury found petitioner guilty of murder, and she was sentenced to life in prison. Petitioner timely
appealed her conviction, which was affirmed.[1]
In 1989, petitioner applied for PCR. She alleged, among other things, that trial counsel was ineffective for failing to
properly present the battered woman's syndrome to show that petitioner had acted in self-defense when she killed
her husband. Petitioner's testimony reveals that she exhibited many of the characteristics of a battered woman. Trial
counsel presented evidence of abuse in mitigation of petitioner's crime, but did not attempt to instruct the jury
regarding the psychological effects of the battered woman's syndrome. The PCR judge found that trial counsel had
performed within the range of competence demanded of attorneys in criminal matters.

II. DISCUSSION
Petitioner asserts that trial counsel was ineffective in failing to properly utilize the battered woman's syndrome to
establish that petitioner killed her husband in self-defense. We disagree.
A battered woman is a woman who repeatedly is subjected to any forceful physical or psychological behavior by a
man in order to coerce her to do something he wants her to do without any concern for her rights. Commonwealth v.
Stonehouse, 521 Pa. 41, 555 A. (2d) 772 (1989) (citing L. Walker, The Battered Woman xv (1979)). The battered
woman's syndrome is identified by a series of common characteristics that appear in women who are abused for an
extended period of time by the dominant male figure in their lives. State v. Kelly, 97 N.J. 178, 478 A. (2d) 364
(1984). These characteristics include fear, hypersuggestibility, isolation, guilt, and emotional dependency, which
culminate in a woman's belief that she should not and cannot escape her batterer. Stonehouse, 521 Pa. at 62 n. 6,
555 A. (2d) at 783 n. 6 (citing Comment, The Battered Spouse Syndrome as a Defense to a Homicide Charge Under
the Pennsylvania Crimes Code, 26 Vill. L. Rev. 105 (1980)). A battered *77 woman believes that her batterer is
capable of killing her. Ibn-Tamas v. United States, 407 A. (2d) 626 (D.C. 1979).
The battered woman's syndrome results from the cyclical nature of the relationship between the battered woman and
the man who abuses her. In the first phase of the cycle, tension increases between the woman and her partner, and
minor abuse occurs. In the second phase, the violence escalates and the battering takes place. In the third phase,
which occurs after the battering, there may be a temporary lull in the physical abuse inflicted on the woman, at which
time the woman forgives the batterer. State v. Allery, 101 Wash. (2d) 591, 682 P. (2d) 312 (1984). During the third
phase, the batterer may feel contrite and loving, and may promise the woman that the violence will never happen
again. As the relationship progresses, however, the tension building before battering becomes more common, and
the batterer's feelings of loving contrition decline. L. Walker, The Battered Woman Syndrome 97 (1984).
A battered woman suffers from "learned helplessness" as the "repeated batterings, like electrical shocks, diminish the
woman's motivation to respond." Id. at 7. This stems from the battered woman's belief that her batterer is more
powerful than he actually is, and her fear of retaliation if she summons help. People v. Day, 2 Cal. App. 4th
405, 2 Cal. Rptr. (2d) 916 (1992). As a result, she ceases trying to escape even when the opportunity to do so is
present. State v. Williams, 787 S.W. (2d) 308 (Mo. Ct. App. 1990) (citing L. Walker, The Battered Woman 47 (1979)).
Having provided an abbreviated overview of the battered woman's syndrome, we turn to the issue before us: whether
petitioner's trial counsel was ineffective for failing to present the battered woman's syndrome in the context of a claim
of self-defense. To prove ineffective assistance of counsel, petitioner must show that her trial counsel's performance
was not reasonable under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L.Ed. (2d) 674 (1984). Further, petitioner must demonstrate that she was prejudiced by her trial counsel's
deficient performance. Id. Our scope of review is limited to a determination of whether there is evidence of probative
value in the record to support the PCR judge's findings. Cherry v. State, 300 S.C. 115, 386 S.E. (2d) 624 (1989).
*78 This Court first recognize the battered woman's syndrome as relevant to a claim of self-defense in State v.
Hill, 287 S.C. 398, 339 S.E. (2d) 121 (1986), six years after petitioner's trial. We cannot say that trial counsel was
ineffective for failing to present evidence of a complex psychological phenomenon which had not yet been recognized
by this Court, and which only recently had been identified by the scientific community. [2] Accordingly, we hold that the
PCR judge did not err in finding that trial counsel's performance was within the range of competence demanded of
attorneys in criminal matters.
We have not previously addressed the relationship between the battered woman's syndrome and the law of self-
defense as it is defined in South Carolina, and will do so now briefly in order to provide some guidance to members of
the bench and bar. We find that the unique perceptions of a defendant suffering from battered woman's syndrome are
generally compatible with the law of this State regarding self-defense.
Self-defense is comprised of four elements:

First, the defendant must be without fault in bringing on the difficulty. Second, the defendant
must have actually believed he was in imminent danger of losing his life or sustaining
serious bodily injury, or he actually was in such imminent danger. Third, if his defense is
based upon his belief of imminent danger, a reasonably prudent [person] of ordinary
firmness and courage would have entertained the same belief. If the defendant actually was
in imminent danger, the circumstances were such as would warrant a [person] of ordinary
prudence, firmness and courage to strike the fatal blow in order to save himself from serious
bodily harm or losing his own life. Fourth, the defendant had no other probable means of
avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he
did in this particular instance. If, however, the defendant was on his own premises he had
no duty to retreat before acting in selfdefense.
*79 State v. Davis, 282 S.C. 45, 317 S.E. (2d) 452 (1984). Self-defense is a complete defense; if established, a
jury must find that the defendant is not guilty. Id.
The first element of self-defense requires evidence that a defendant not be at fault in bringing about the difficulty.
Often a battered woman will kill an abuser during a confrontation when the man clearly is the aggressor, so that this
element is satisfied. However, it may be possible to characterize a battered woman as the victim of a continuing
assault at the hands of her batterer. When this is the case, the first element of self-defense may be satisfied even
though the battered woman acts at a time when the batterer is not physically abusing her.
The second element of self-defense requires a defendant to actually have been in imminent danger, or to have
believed that, at the time she acted, she was in imminent danger of death or serious bodily harm. At times, a battered
woman actually is in imminent danger of violence when she acts. Depending upon the facts of each case, the second
element of self-defense also may be satisfied when a battered woman believes she is in imminent danger of death or
serious bodily harm even though her batterer is not physically abusing her when she acts. This is because battered
women can experience a heightened sense of imminent danger arising from the perpetual terror of physical and
mental abuse. Often the terror does not wane, even when the batterer is absent or asleep. State v. Norman, 324
N.C. 253, 378 S.E. (2d) 8 (1989) (Martin, J., dissenting) (citing Comment, The Admissibility of Expert Testimony on
the Battered Woman Syndrome in Support of a Claim of Self-Defense, 15 Conn. L. Rev. 121 (1982)).
The third element of self-defense requires a defendant to show that a reasonable, prudent person in the same or
similar circumstances would have acted as the defendant did in order to save herself. Where torture appears
interminable and escape impossible, the belief that only the death of the batterer can provide relief may be
reasonable in the mind of a person of ordinary firmness. See Norman, 324 N.C. at 270, 378 S.E. (2d) at 18. (Martin,
Jr., dissenting.)
Under the fourth element of self-defense, a defendant must show that she had no other means of avoiding the danger
than to act as she did. A battered woman who *80 is held hostage by her batterer may have no other means of
avoiding a battering than to kill her batterer in self-defense. Moreover, a battered woman often may be able to claim
the inapplicability of this element of self-defense because she acts while on her own premises, and has no duty to
retreat.
Our interpretation of the relationship between the battered woman's syndrome and self-defense is cursory, at best,
and should not be construed as this Court's last word on the subject. Our law will continue to evolve as the scientific
community's understanding of the battered woman's syndrome develops and society's comprehension of the
condition becomes more sophisticated.
Petitioner's remaining exceptions are without merit. The order of the PCR judge is
Affirmed.
CHANDLER, FINNEY, TOAL and MOORE, JJ., concur.

NOTES
[1] State v. Robinson, 276 S.C. 435, 279 S.E. (2d) 372 (1981).
[2] Lenore E. Walker published her comprehensive work regarding battered women in 1979. See L. Walker, The
Battered Woman (1979). According to Dr. Walker, the first epidemiological study of battered women was not
undertaken in this country until 1976. Id. at 20.

State v. Kelly, 478 A.2d 364 (N.J. 1984)

Supreme Court of New Jersey
Filed: July 24th, 1984
Precedential Status: Precedential
Citations: 478 A.2d 364, 97 N.J. 178
Docket Number: Unknown
Author: Robert Nathan Wilentz

97 N.J. 178 (1984)

478 A.2d 364

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,

v.
GLADYS KELLY, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued May 10, 1983.

Decided July 24, 1984.

*186 Sheri Woliver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph H. Rodriguez, Public
Defender, attorney).
*187 Hilary L. Brunell, Assistant Prosecutor, argued the cause for respondent (George L. Schneider, Essex County
Prosecutor, attorney).
Elizabeth M. Schneider, a member of the New York bar, argued the cause for amici curiae American Civil Liberties
Union of New Jersey and New Jersey Coalition for Battered Women (Frank Askin and Stephen M.
Latimer, attorneys).
Nadine Taub submitted a brief on behalf of amicus curiae American Psychological Association (Nadine
Taub, attorney; Kit Kinports and Bruce J. Ennis, members of the District of Columbia bar, and Donald N. Bersoff, a
member of the Maryland bar, of counsel).
The opinion of the Court was delivered by WILENTZ, C.J.
The central issue before us is whether expert testimony about the battered-woman's syndrome is admissible to help
establish a claim of self-defense in a homicide case. The question is one of first impression in this state. We hold,
based on the limited record before us (the State not having had a full opportunity to prove the contrary), that the
battered-woman's syndrome is an appropriate subject for expert testimony; that the experts' conclusions, despite the
relative newness of the field, are sufficiently reliable under New Jersey's standards for scientific testimony; and that
defendant's expert was sufficiently qualified. Accordingly, we reverse and remand for a new trial. If on retrial after a
full examination of these issues the evidence continues to support these conclusions, the expert's testimony on the
battered-woman's syndrome shall be admitted as relevant to the honesty and reasonableness of defendant's belief
that deadly force was necessary to protect her against death or serious bodily harm.

I.
On May 24, 1980, defendant, Gladys Kelly, stabbed her husband, Ernest, with a pair of scissors. He died shortly
thereafter at a nearby hospital. The couple had been married *188 for seven years, during which time Ernest had
periodically attacked Gladys. According to Ms. Kelly, he assaulted her that afternoon, and she stabbed him in self-
defense, fearing that he would kill her if she did not act.
Ms. Kelly was indicted for murder. At trial, she did not deny stabbing her husband, but asserted that her action was in
self-defense. To establish the requisite state of mind for her self-defense claim, Ms. Kelly called Dr. Lois Veronen as
an expert witness to testify about the battered-woman's syndrome. After hearing a lengthy voir dire examination of Dr.
Veronen, the trial court ruled that expert testimony concerning the syndrome was inadmissible on the self-defense
issue under State v. Bess, 53 N.J. 10 (1968). Apparently the court believed that the sole purpose of this testimony
was to explain and justify defendant's perception of the danger rather than to show the objective reasonableness of
that perception.
Ms. Kelly was convicted of reckless manslaughter. In an unreported decision relying in part on Bess, the Appellate
Division affirmed the conviction. We granted certification, 91 N.J. 539 (1983), and now reverse.
Defendant raises six issues on appeal. She claims: (1) that the trial court erred in excluding expert testimony on the
battered-woman's syndrome; (2) that the trial court's charge on provocation was erroneous; (3) that the trial court
erred in excluding testimony that Mr. Kelly had sexually assaulted one of Ms. Kelly's daughters; (4) that improper
prosecutorial conduct caused her to be denied a fair trial; (5) that the trial court erred in admitting testimony about her
earlier conspiracy conviction; and (6) that her sentence was excessive.

II.
The Kellys had a stormy marriage. Some of the details of their relationship, especially the stabbing, are disputed. The
following is Ms. Kelly's version of what happened —a version that the jury could have accepted and, if they had, a
version *189 that would make the proffered expert testimony not only relevant, but critical.
The day after the marriage, Mr. Kelly got drunk and knocked Ms. Kelly down. Although a period of calm followed the
initial attack, the next seven years were accompanied by periodic and frequent beatings, sometimes as often as once
a week. During the attacks, which generally occurred when Mr. Kelly was drunk, he threatened to kill Ms. Kelly and to
cut off parts of her body if she tried to leave him. Mr. Kelly often moved out of the house after an attack, later
returning with a promise that he would change his ways. Until the day of the homicide, only one of the attacks had
taken place in public.
The day before the stabbing, Gladys and Ernest went shopping. They did not have enough money to buy food for the
entire week, so Ernest said he would give his wife more money the next day.
The following morning he left for work. Ms. Kelly next saw her husband late that afternoon at a friend's house. She
had gone there with her daughter, Annette, to ask Ernest for money to buy food. He told her to wait until they got
home, and shortly thereafter the Kellys left. After walking past several houses, Mr. Kelly, who was drunk, angrily
asked "What the hell did you come around here for?" He then grabbed the collar of her dress, and the two fell to the
ground. He choked her by pushing his fingers against her throat, punched or hit her face, and bit her leg.
A crowd gathered on the street. Two men from the crowd separated them, just as Gladys felt that she was "passing
out" from being choked. Fearing that Annette had been pushed around in the crowd, Gladys then left to look for her.
Upon finding Annette, defendant noticed that Annette had defendant's pocketbook. Gladys had dropped it during the
fight. Annette had retrieved it and gave her mother the pocketbook.
After finding her daughter, Ms. Kelly then observed Mr. Kelly running toward her with his hands raised. Within
seconds *190 he was right next to her. Unsure of whether he had armed himself while she was looking for their
daughter, and thinking that he had come back to kill her, she grabbed a pair of scissors from her pocketbook. She
tried to scare him away, but instead stabbed him.[1]

III.
The central question in this case is whether the trial court erred in its exclusion of expert testimony on the battered-
woman's syndrome. That testimony was intended to explain defendant's state of mind and bolster her claim of self-
defense. We shall first examine the nature of the battered-woman's syndrome and then consider the expert testimony
proffered in this case and its relevancy.
In the past decade social scientists and the legal community began to examine the forces that generate and
perpetuate wife beating and violence in the family.[2] What has been revealed is *191 that the problem affects many
more people than had been thought and that the victims of the violence are not only the battered family members
(almost always either the wife or the children). There are also many other strangers to the family who feel the
devastating impact, often in the form of violence, of the psychological damage suffered by the victims.
Due to the high incidence of unreported abuse (the FBI and other law enforcement experts believe that wife abuse is
the most unreported crime in the United States), estimates vary of the number of American women who are beaten
regularly by their husband, boyfriend, or the dominant male figure in their lives. One recent estimate puts the number
of women beaten yearly at over one million. See California Advisory Comm'n on Family Law, Domestic Violence app.
F at 119 (1st report 1978). The state police statistics show more than 18,000 reported cases of domestic violence in
New Jersey during the first nine months of 1983, in 83% of which the victim was female. It is clear that the American
home, once assumed to be the cornerstone of our society, is often a violent place. [3]
While common law notions that assigned an inferior status to women, and to wives in particular, no longer represent
the state *192 of the law as reflected in statutes and cases, many commentators assert that a bias against battered
women still exists, institutionalized in the attitudes of law enforcement agencies unwilling to pursue or uninterested in
pursuing wife beating cases.[4] See Comment, The Battered Wife's Dilemma: Kill or be Killed, 32 Hastings L.J., 895,
897-911 (1981).
Another problem is the currency enjoyed by stereotypes and myths concerning the characteristics of battered women
and their reasons for staying in battering relationships. Some popular misconceptions about battered women include
the beliefs that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands
into violent behavior, and, most critically, as we shall soon see, that women who remain in battering relationships are
free to leave their abusers at any time. See L. Walker, The Battered Woman at 19-31 (1979).
As these cases so tragically suggest, not only do many women suffer physical abuse at the hands of their mates, but
a significant number of women kill (or are killed by) their husbands. In 1978, murders between husband and wife or
girlfriend and boyfriend constituted 13% of all murders committed in the United States. Undoubtedly some of these
arose from battering incidents. Federal Bureau of Investigation, Crime in the United States 1978 (1978). Men were
the victims in 48% of these killings. Id.
As the problem of battered women has begun to receive more attention, sociologists and psychologists have begun
to focus on the effects a sustained pattern of physical and psychological *193 abuse can have on a woman. The
effects of such abuse are what some scientific observers have termed "the battered-woman's syndrome," a series of
common characteristics that appear in women who are abused physically and psychologically over an extended
period of time by the dominant male figure in their lives. Dr. Lenore Walker, a prominent writer on the battered-
woman's syndrome, defines the battered woman as one

who is repeatedly subjected to any forceful physical or psychological behavior by a man in

order to coerce her to do something he wants her to do without concern for her rights.
Battered women include wives or women in any form of intimate relationships with men.
Furthermore, in order to be classified as a battered woman, the couple must go through the
battering cycle at least twice. Any woman may find herself in an abusive relationship with a
man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman. [L. Walker, supra, at xv].
According to Dr. Walker, relationships characterized by physical abuse tend to develop battering cycles. Violent
behavior directed at the woman occurs in three distinct and repetitive stages that vary both in duration and intensity
depending on the individuals involved. L. Walker, supra, at 55-70.
Phase one of the battering cycle is referred to as the "tension-building stage," during which the battering male
engages in minor battering incidents and verbal abuse while the woman, beset by fear and tension, attempts to be as
placating and passive as possible in order to stave off more serious violence. Id. at 56-59.
Phase two of the battering cycle is the "acute battering incident." At some point during phase one, the tension
between the battered woman and the batterer becomes intolerable and more serious violence inevitable. The
triggering event that initiates phase two is most often an internal or external event in the life of the battering male, but
provocation for more severe violence is sometimes provided by the woman who can no longer tolerate or control her
phase-one anger and anxiety. Id. at 59-65.
Phase three of the battering cycle is characterized by extreme contrition and loving behavior on the part of the
battering *194 male. During this period the man will often mix his pleas for forgiveness and protestations of devotion
with promises to seek professional help, to stop drinking,[5] and to refrain from further violence. For some couples, this
period of relative calm may last as long as several months, but in a battering relationship the affection and contrition
of the man will eventually fade and phase one of the cycle will start anew. Id. at 65-70.
The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers. The
loving behavior demonstrated by the batterer during phase three reinforces whatever hopes these women might have
for their mate's reform and keeps them bound to the relationship. R. Langley & R. Levy, Wife Beating: The Silent
Crisis 112-14 (1977).
Some women may even perceive the battering cycle as normal, especially if they grew up in a violent
household. Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); D. Martin,
Battered Wives, 60 (1981). Or they may simply not wish to acknowledge the reality of their situation. T. Davidson,
Conjugal Crime, at 50 (1978) ("The middle-class battered wife's response to her situation tends to be withdrawal,
silence and denial ...").
Other women, however, become so demoralized and degraded by the fact that they cannot predict or control the
violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve
or alter the situation. There is a tendency in battered women to believe in the omnipotence *195 or strength of their
battering husbands and thus to feel that any attempt to resist them is hopeless. L. Walker, supra, at 75.
In addition to these psychological impacts, external social and economic factors often make it difficult for some
women to extricate themselves from battering relationships. A woman without independent financial resources who
wishes to leave her husband often finds it difficult to do so because of a lack of material and social resources.
Even with the progress of the last decade, women typically make less money and hold less prestigious jobs than
men, and are more responsible for child care. Thus, in a violent confrontation where the first reaction might be to flee,
women realize soon that there may be no place to go. Moreover, the stigma that attaches to a woman who leaves the
family unit without her children undoubtedly acts as a further deterrent to moving out.
In addition, battered women, when they want to leave the relationship, are typically unwilling to reach out and confide
in their friends, family, or the police, either out of shame and humiliation, fear of reprisal by their husband, or the
feeling they will not be believed.
Dr. Walker and other commentators have identified several common personality traits of the battered woman: low
self-esteem, traditional beliefs about the home, the family, and the female sex role, tremendous feelings of guilt that
their marriages are failing, and the tendency to accept responsibility for the batterer's actions. L. Walker, supra, at 35-
36.
Finally, battered women are often hesitant to leave a battering relationship because, in addition to their hope of
reform on the part of their spouse, they harbor a deep concern about the possible response leaving might provoke in
their mates. They literally become trapped by their own fear. Case histories are replete with instances in which a
battered wife left her husband *196 only to have him pursue her and subject her to an even more brutal attack. D.
Martin, supra, at 76-79.
The combination of all these symptoms —resulting from sustained psychological and physical trauma compounded
by aggravating social and economic factors —constitutes the battered-woman's syndrome. Only by understanding
these unique pressures that force battered women to remain with their mates, despite their long-standing and
reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's
state of mind be accurately and fairly understood.
The voir dire testimony of Dr. Veronen, sought to be introduced by defendant Gladys Kelly, conformed essentially to
this outline of the battered-woman's syndrome. Dr. Vernonen, after establishing her credentials, described in general
terms the component parts of the battered-woman's syndrome and its effects on a woman's physical and mental
health. The witness then documented, based on her own considerable experience in counseling, treating, and
studying battered women, and her familiarity with the work of others in the field, the feelings of anxiety, self-blame,
isolation, and, above all, fear that plagues these women and leaves them prey to a psychological paralysis that
hinders their ability to break free or seek help.
Dr. Veronen stated that the problems of battered women are aggravated by a lack of understanding among the
general public concerning both the prevalence of violence against women and the nature of battering relationships.
She cited several myths concerning battered women that enjoy popular acceptance —primarily that such women are
masochistic and enjoy the abuse they receive and that they are free to leave their husbands but choose not to.
Dr. Veronen described the various psychological tests and examinations she had performed in connection with her
independent research. These tests and their methodology, including their interpretation, are, according to Dr.
Veronen, widely *197 accepted by clinical psychologists. Applying this methodology to defendant (who was subjected
to all of the tests, including a five-hour interview), Dr. Veronen concluded that defendant was a battered woman and
subject to the battered-woman's syndrome.
In addition, Dr. Veronen was prepared to testify as to how, as a battered woman, Gladys Kelly perceived her situation
at the time of the stabbing, and why, in her opinion, defendant did not leave her husband despite the constant
beatings she endured.

IV.
Whether expert testimony on the battered-woman's syndrome should be admitted in this case depends on whether it
is relevant to defendant's claim of self-defense, and, in any event, on whether the proffer meets the standards for
admission of expert testimony in this state. We examine first the law of self-defense and consider whether the expert
testimony is relevant.
The present rules governing the use of force in self-defense are set out in the justification section of the Code of
Criminal Justice. The use of force against another in self-defense is justifiable "when the actor reasonably believes
that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by
such other person on the present occasion." N.J.S.A. 2C:3-4(a). Further limitations exist when deadly force is used in
self-defense. The use of such deadly force is not justifiable

unless the actor reasonably believes that such force is necessary to protect himself against
death or serious bodily harm.... [N.J.S.A. 2C:3-4(b)(2)].
These principles codify decades of prior case law development of the elements of self-defense.[6] We focus here on
the critical *198 requirement that the actor reasonably believe deadly force to be necessary to prevent death or
serious bodily harm, for the proffer of expert testimony was argued to be relevant on this point.
Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or
her death or serious injury, even though this belief was later proven mistaken. "Detached reflection cannot be
demanded in the presence of an uplifted knife," Justice Holmes aptly said, Brown v. United States, 256 U.S. 335,
343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not necessarily
a correct, judgment. See State v. Hipplewith, 33 N.J. 300, 316-17 (1960); State v. Mount, 73 N.J.L. 582, 583 (E. & A.
1905); State v. Lionetti, 93 N.J.L. 24 (Sup.Ct. 1919).
While it is not imperative that actual necessity exist, a valid plea of self-defense will not lie absent an actual (that is,
honest) belief on the part of the defendant in the necessity of using force. While no case in New Jersey has
addressed the point directly, the privilege of self-defense does not exist where the defendant's action is not prompted
by a belief in its necessity: "He has no defense when he intentionally kills his enemy in complete ignorance of the fact
that his enemy, when killed, was about to launch a deadly attack upon him." W. LaFave & A. Scott, Criminal Law §
53, at 394 (1972).[7] The intent of the *199 drafters of the present Code was that a necessity to act should not give rise
to a meritorious plea of self-defense where the defendant was unaware of that necessity. Final Report of the New
Jersey Criminal Law Revision Commission, Vol. II: Commentary, at 83 (1971) [hereinafter cited as Commission
Report]. Ultimately, of course, it is for the jury to determine if the defendant actually did believe in the necessity of
acting with deadly force to prevent an imminent, grave attack. See, e.g., State v. Fair, 45 N.J. 77, 93 (1965).
Honesty alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that
her belief in the necessity to use force was reasonable. See, e.g., State v. Mellillo, 77 N.J.L. 505 (E. & A. 1908); State
v. Mark Len, 108 N.J.L. 439, 440 (Sup.Ct. 1932). As originally proposed, the new Code of Criminal Justice would
have eliminated the reasonableness requirement, allowing self-defense whenever the defendant honestly believed in
the imminent need to act. See Commission Report, supra, Vol. I, at 26-27 (proposed Section 2C:3-4), and Vol. II:
Commentary, at 82-83. This proposed change in the law was not accepted by the Legislature. N.J.S.A. 2C:3-4 as
finally enacted retains the requirement that the defendant's belief be reasonable.[8]
Thus, even when the defendant's belief in the need to kill in self-defense is conceded to be sincere, if it is found to
have been unreasonable under the circumstances, such a belief cannot be held to constitute complete justification for
a homicide.[9] As *200 with the determination of the existence of the defendant's belief, the question of the
reasonableness of this belief "is to be determined by the jury, not the defendant, in light of the circumstances existing
at the time of the homicide." State v. Hipplewith, supra, 33 N.J. at 316; see State v. Bess, supra, 53 N.J. at 16; State
v. Fair, supra, 45 N.J. at 93; State v. Jayson, 94 N.J.L. 467, 471 (E. & A. 1920). It is perhaps worth emphasizing here
that for defendant to prevail, the jury need not find beyond a reasonable doubt that the defendant's belief was honest
and reasonable. Rather, if any evidence raising the issue of self-defense is adduced, either in the State's or the
defendant's case, then the jury must be instructed that the State is required to prove beyond a reasonable doubt that
the self-defense claim does not accord with the facts; acquittal is required if there remains a reasonable doubt
whether the defendant acted in self-defense. State v. Abbott, 36 N.J. 63, 72 (1961). See generally State v.
Chiarello, 69 N.J. Super. 479 (App.Div. 1961).
With the foregoing standards in mind, we turn to an examination of the relevance of the proffered expert testimony to
Gladys Kelly's claim of self-defense.

V.
Gladys Kelly claims that she stabbed her husband in self-defense, believing he was about to kill her. The gist of the
State's case was that Gladys Kelly was the aggressor, that she consciously intended to kill her husband, and that she
certainly was not acting in self-defense.
The credibility of Gladys Kelly is a critical issue in this case. If the jury does not believe Gladys Kelly's account,
it *201 cannot find she acted in self-defense. The expert testimony offered was directly relevant to one of the critical
elements of that account, namely, what Gladys Kelly believed at the time of the stabbing, and was thus material to
establish the honesty of her stated belief that she was in imminent danger of death. [10]
The State argues that there is no need to bolster defendant's credibility with expert testimony concerning the battering
because the State did not attempt to undermine defendant's testimony concerning her prior mistreatment at the
hands of her husband. The State's claim is simply untrue. In her summation, the prosecutor suggested that had
Ernest Kelly lived, he might have told a different story from the one Gladys told. (In its brief, the State argues that
evidence in the case suggests that Gladys Kelly's claims of abuse could have been contradicted by her husband.)
This is obviously a direct attempt to undermine defendant's testimony about her prior mistreatment.
Moreover, defendant's credibility was also attacked in other ways. Gladys Kelly's prior conviction for conspiracy to
commit robbery was admitted into evidence for the express purpose of impeachment, even though this conviction had
occurred nine years before the stabbing. Other questions, about Gladys Kelly's use of alcohol and drugs and about
her premarital sexual conduct, were clearly efforts to impeach credibility.
As can be seen from our discussion of the expert testimony, Dr. Veronen would have bolstered Gladys Kelly's
credibility. *202 Specifically, by showing that her experience, although concededly difficult to comprehend, was
common to that of other women who had been in similarly abusive relationships, Dr. Veronen would have helped the
jury understand that Gladys Kelly could have honestly feared that she would suffer serious bodily harm from her
husband's attacks, yet still remain with him. This, in turn, would support Ms. Kelly's testimony about her state of mind
(that is, that she honestly feared serious bodily harm) at the time of the stabbing.
On the facts in this case, we find that the expert testimony was relevant to Gladys Kelly's state of mind, namely, it
was admissible to show she honestly believed she was in imminent danger of death. Ibn-Tamas v. United
States, 407 A.2d 626 (D.C. 1979) (on remand, trial court excluded expert testimony on battered-woman's syndrome;
the Court of Appeals affirmed the exclusion of the testimony, holding that the trial court was not compelled to admit
the evidence; 455 A.2d 893 (D.C. 1983)); Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for
review denied, 415 So.2d 1361 (Fla. 1982); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v.
Anaya, 438 A.2d 892 (Me. 1981); State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (Wash.Sup.Ct. 1984); see
also People v. Minnis, 118 Ill. App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983) (expert testimony on battered-
woman's syndrome admissible to explain reasons why defendant dismembered body of victim/husband where
prosecution introduced fact of dismemberment as substantive evidence of guilt). But see State v. Thomas, 66 Ohio
St.2d 518, 423 N.E.2d 137 (1981).[11] Moreover, we *203 find that because this testimony was central to the
defendant's claim of self-defense, its exclusion, if otherwise admissible, cannot be held to be harmless error. [12]
*204 We also find the expert testimony relevant to the reasonableness of defendant's belief that she was in imminent
danger of death or serious injury. We do not mean that the expert's testimony could be used to show that it was
understandable that a battered woman might believe that her life was in danger when indeed it was not and when a
reasonable person would not have so believed, for admission for that purpose would clearly violate the rule set forth
in State v. Bess, supra, 53 N.J. 10. Expert testimony in that direction would be relevant solely to the honesty of
defendant's belief, not its objective reasonableness. Rather, our conclusion is that the expert's testimony, if accepted
by the jury, would have aided it in determining whether, under the circumstances, a reasonable person would have
believed there was imminent danger to her life.
At the heart of the claim of self-defense was defendant's story that she had been repeatedly subjected to "beatings"
over the course of her marriage. While defendant's testimony was somewhat lacking in detail, a juror could infer from
the use of the word "beatings," as well as the detail given concerning some of these events (the choking, the biting,
the use of fists), *205 that these physical assaults posed a risk of serious injury or death. When that regular pattern of
serious physical abuse is combined with defendant's claim that the decedent sometimes threatened to kill her,
defendant's statement that on this occasion she thought she might be killed when she saw Mr. Kelly running toward
her could be found to reflect a reasonable fear; that is, it could so be found if the jury believed Gladys Kelly's story of
the prior beatings, if it believed her story of the prior threats, and, of course, if it believed her story of the events of
that particular day.
The crucial issue of fact on which this expert's testimony would bear is why, given such allegedly severe and constant
beatings, combined with threats to kill, defendant had not long ago left decedent. Whether raised by the prosecutor
as a factual issue or not, our own common knowledge tells us that most of us, including the ordinary juror, would ask
himself or herself just such a question. And our knowledge is bolstered by the experts' knowledge, for the experts
point out that one of the common myths, apparently believed by most people, is that battered wives are free to leave.
To some, this misconception is followed by the observation that the battered wife is masochistic, proven by her
refusal to leave despite the severe beatings; to others, however, the fact that the battered wife stays on
unquestionably suggests that the "beatings" could not have been too bad for if they had been, she certainly would
have left. The expert could clear up these myths, by explaining that one of the common characteristics of a battered
wife is her inability to leave despite such constant beatings; her "learned helplessness"; her lack of anywhere to go;
her feeling that if she tried to leave, she would be subjected to even more merciless treatment; her belief in the
omnipotence of her battering husband; and sometimes her hope that her husband will change his ways.
Unfortunately, in this case the State reinforced the myths about battered women. On cross-examination, when
discussing an occasion when Mr. Kelly temporarily moved out of the *206 house, the State repeatedly asked Ms.
Kelly: "You wanted him back, didn't you?" The implication was clear: domestic life could not have been too bad if she
wanted him back. In its closing argument, the State trivialized the severity of the beatings, saying:

I'm not going to say they happened or they didn't happen, but life isn't pretty. Life is not a
bowl of cherries. We each and every person who takes a breath has problems. Defense
counsel says bruised and battered. Is there any one of us who hasn't been battered by life
in some manner or means?
Even had the State not taken this approach, however, expert testimony would be essential to rebut the general
misconceptions regarding battered women.
The difficulty with the expert's testimony is that it sounds as if an expert is giving knowledge to a jury about something
the jury knows as well as anyone else, namely, the reasonableness of a person's fear of imminent serious danger.
That is not at all, however, what this testimony is directly aimed at. It 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, an area where expert knowledge would enable the jurors to
disregard their prior conclusions as being common myths rather than common knowledge. After hearing the expert,
instead of saying Gladys Kelly could not have been beaten up so badly for if she had, she certainly would have left,
the jury could conclude that her failure to leave was very much part and parcel of her life as a battered wife. The jury
could conclude that instead of casting doubt on the accuracy of her testimony about the severity and frequency of
prior beatings, her failure to leave actually reinforced her credibility.
Since a retrial is necessary, we think it advisable to indicate the limit of the expert's testimony on this issue of
reasonableness. It would not be proper for the expert to express the opinion that defendant's belief on that day was
reasonable, not because this is the ultimate issue, but because the area of expert knowledge relates, in this regard,
to the reasons for *207 defendant's failure to leave her husband. Either the jury accepts or rejects that explanation
and, based on that, credits defendant's stories about the beatings she suffered. No expert is needed, however, once
the jury has made up its mind on those issues, to tell the jury the logical conclusion, namely, that a person who has in
fact been severely and continuously beaten might very well reasonably fear that the imminent beating she was about
to suffer could be either life-threatening or pose a risk of serious injury. What the expert could state was that
defendant had the battered-woman's syndrome, and could explain that syndrome in detail, relating its characteristics
to defendant, but only to enable the jury better to determine the honesty and reasonableness of defendant's belief.
Depending on its content, the expert's testimony might also enable the jury to find that the battered wife, because of
the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to
the day he died, is particularly able to predict accurately the likely extent of violence in any attack on her. That
conclusion could significantly affect the jury's evaluation of the reasonableness of defendant's fear for her life. [13]

*208 VI.
Having determined that testimony about the battered-woman's syndrome is relevant, we now consider whether Dr.
Veronen's testimony satisfies the limitations placed on expert testimony by Evidence Rule 56(2) and by applicable
case law. See State v. Cavallo, 88 N.J. 508, 516 (1982). Evidence Rule 56(2) provides that an expert may testify "as
to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to
understand the evidence or determine a fact in issue." In effect, this Rule imposes three basic requirements for the
admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the
average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently
reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of
Evidence (Anno. 1984), Comment 5 to Evid.R. 56.[14]
*209 The primary justification for permitting expert testimony is that the average juror is relatively helpless in dealing
with a subject that is not a matter of common knowledge. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85
(App.Div. 1961). Thus, the proponent of expert testimony must demonstrate that testimony would "enhance the
knowledge and understanding of lay jurors with respect to other testimony of a special nature normally outside of the
usual lay sphere." State v. Griffin, 120 N.J. Super. 13, 20 (App.Div. 1972).
As previously discussed, a battering relationship embodies psychological and societal features that are not well
understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear
that this subject is beyond the ken of the average juror and thus is suitable for explanation through expert
testimony.[15]
The second requirement that must be met before expert testimony is permitted is a showing that the proposed
expert's testimony would be reliable. The rationale for this requirement is that expert testimony seeks to assist the
trier of fact. An expert opinion that is not reliable is of no assistance to anyone.
To meet the requirement that the expert's testimony be sufficiently reliable, defense counsel must show that the
testimony satisfies New Jersey's standard of acceptability for scientific *210 evidence. State v. Cavallo,
supra, 88 N.J. at 516-17 (citing State v. Hurd, 86 N.J. 525, 536 (1981)). The technique or mode of analysis used by
the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results so as to
contribute materially to the ascertainment of the truth. Id. 88 N.J. at 517 (citing State v. Cary, 49 N.J. 343, 352
(1967)); State v. Hurd, supra, 86 N.J. at 536.
In a relatively new field of research, such as that of the battered-woman's syndrome, there are three ways a
proponent of scientific evidence can prove its general acceptance and thereby its reliability: (1) by expert testimony
as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness
based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community
accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's
premises have gained general acceptance. State v. Cavallo, 88 N.J. at 521. Applying those methods to the case at
bar, we note that judicial opinions thus far have been split concerning the scientific acceptability of the syndrome and
the methodology used by the researchers in this area.[16] On the other hand, Dr. Veronen, the proffered expert,
testified that the battered-woman's syndrome is acknowledged and accepted by practitioners and professors in the
fields of psychology and psychiatry. Dr. Veronen also brought to the court's attention the findings of several
researchers who have published reports confirming the presence of the battered-woman's syndrome. She further
noted that the battered-woman's syndrome has *211 been discussed at several symposia since 1977, sponsored by
such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological
Association.[17] Briefs submitted to this Court indicate that there are at least five books and almost seventy scientific
articles and papers about the battered-woman's syndrome.
Thus, the record before us reveals that the battered woman's syndrome has a sufficient scientific basis to produce
uniform and reasonably reliable results as required by State v. Cavallo, and Evid.R. 56(2). The numerous books,
articles and papers referred to earlier indicate the presence of a growing field of study and research about the
battered woman's syndrome and recognition of the syndrome in the scientific field. However, while the record before
us could require such a ruling, we refrain from conclusively ruling that Dr. Veronen's proffered testimony about the
battered-woman's syndrome would satisfy New Jersey's standard of acceptability for scientific evidence. This is
because the State was not given a full opportunity in the trial court to question Dr. Veronen's methodology in studying
battered women or her implicit assertion that the battered-woman's syndrome has been accepted by the relevant
scientific community.
Finally, before expert testimony may be presented, there must be a showing that the proffered expert witness has
sufficient expertise to offer the intended testimony. State v. Cavallo, supra, 88 N.J. at 516. In this case, it appears that
Dr. Veronen is qualified to testify as an expert. She has a Ph.D. in clinical psychology, as well as an M.A. from North
Texas State. She is a member of four professional associations. As of 1980, when she was offered as a witness at
Ms. Kelly's trial, Dr. *212 Veronen had been an assistant professor at the medical school at the University of South
Carolina for three years. Twenty percent of her time at the Universty was spent teaching, some of it on topics related
to the battered-woman's syndrome, and 80% of her time was spent conducting research, most of it on the
psychological reaction of women who are victims of violent assaults. She had spent two years studying the battered-
woman's syndrome, with the goal of changing the patterns of fear and anxiety of battered women. Dr. Veronen is a
clinical psychologist, licensed to practice in two states, and in that capacity had, by 1980, treated approximately thirty
battered women and seen seventy others. Because these thirty women have several important characteristics in
common with Ms. Kelly (the thirty women had all been in battering relationships for more than two years, were beaten
more than six times, and were within the same age group as Ms. Kelly), Dr. Veronen is familiar with battered women
who share Ms. Kelly's background.[18]
We have concluded that the appropriate disposal of this appeal is to reverse and remand for a new trial. On the
record before us, although the trial court did not rule on the matter, it appears that Dr. Veronen qualified as an expert,
and that the degree of reliability of the conclusions in this field of expertise was sufficient to allow their admission.
Alternatively we could retain jurisdiction and remand, solely for the purpose of allowing the prosecutor to continue
cross-examination of Dr. *213 Veronen as well as to introduce such contrary testimony as the prosecutor sees fit. The
transcript discloses that the prosecutor had concluded her cross-examination on Dr. Veronen's qualifications but had
never been given the opportunity fully to cross-examine the expert on the reliability of this developing field of scientific
knowledge. The possibility of such further cross-examination was foreclosed by the trial court when it ruled evidence
of the syndrome was inadmissible because irrelevant. Furthermore, as noted above, the trial court never actually
ruled whether Dr. Veronen qualified as an expert, finding this unnecessary because of his holding that the testimony
would not be admissible under State v. Bess, supra, 53 N.J. 10, even if she was an expert.[19]
*214 Our conclusion, reversing and ordering a new trial, is based on the apparent unfairness in this case of the kind
of limited remand that we ordered in State v. Sikora, supra, 44 N.J. at 465-66, 474 (Weintraub, C.J., concurring).
Here a limited remand would be to the trial court to exercise its discretion, a very broad discretion, on the issue of the
expert's qualifications and the reliability of the knowledge proffered. We do not know what conflicting expert testimony
the prosecution would offer, but the entire scenario of a limited remand when the defendant has already been
convicted and when the court whose discretion will largely determine the outcome of the limited remand has already
excluded the evidence, with prosecution experts who might not have been called at the original trial, seems an
artificial trial setting, and significantly less favorable to defendant than what might have occurred if the trial court had
had the benefit of the views expressed herein at the time. Obviously there is no way to recreate the precise situation
of the trial, but all things considered, we think fairness requires a new trial where all of these matters may be
reconsidered.

VII.
Apart from her claims concerning the exclusion of the expert testimony, the defendant raises five additional issues on
appeal. Although our disposition of this case makes it unnecessary to *215 consider these issues, we dispose of
them briefly to assist the trial court in the event they surface again at the new trial.

A.
During trial, defendant sought to introduce testimony from Edith Cannon, defendant's 17-year-old daughter by
another marriage, to the effect that shortly before the fatal encounter she had told her mother that Ernest Kelly had
been subjecting her to physical and sexual abuse since age 13. The defense asserted that this evidence of Glady
Kelly's knowledge of the victim's prior aggressive behavior demonstrated that her fear of the decedent was justifiable
and that her subsequent behavior was reasonable. See McCormick on Evidence § 249, at 588-89 (E. Cleary ed., 2d
Ed. 1972); VI J. Wigmore Evidence § 1789, at 314 (Chad.Rev.Ed. 1972).
The trial court, however, excluded this evidence in reliance upon Evidence Rule 4, [20] stating:
We will get involved with trials within trials —trying cases of sexual aggression. That
daughter was not present at the time of the alleged stabbing by her mother of her
stepfather. There has been no evidence indicating that the safety of the daughter was
threatened on May 24.
Whether the probative value of a particular piece of evidence is outweighed by its potential prejudice is a decision
normally left to the discretion of the trial court; and this "discretion is a broad one." State v. Sands, 76 N.J. 127
(1978); see also Evid.R. 4, Comment 1.
If the only relevance of this testimony was to reinforce the proof that defendant feared the decedent for good reason,
its limited added force might very well be outweighed *216 by the obvious prejudice injected into the case in the form
of proof that decedent sexually abused his daughter. The testimony, however, has further relevance in that it very
strongly supports the conclusion that the Kelly household was the scene of the batterings that would produce the
battered-woman's syndrome. As our Legislature noted in its findings included in the Prevention of Domestic Violence
Act, "there is a positive correlation between spouse abuse and child abuse...." N.J.S.A. 2C:25-2. Given the critical
importance of the proof of the battered-woman's syndrome in this case, we are inclined to believe that, on balance,
such testimony should have been admitted. We are aware that in the context of an appellate review, a decision of a
trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding
was so wide of the mark that a manifest denial of justice resulted. State v. Carter, 91 N.J. 86, 106 (1982); State v.
Boratto, 80 N.J. 506 (1979); State v. Rogers, 19 N.J. 218 (1955); Hill v. Newman, 126 N.J. Super. 557 (App.Div.
1973), certif. den., 64 N.J. 508 (1974); Evid.R. 4, Comment 2. Nevertheless, absent any significant new factor
bearing on this issue, the trial court on remand should allow the testimony, giving such appropriate instruction to the
jury as will minimize the possibility of its prejudicial impact.

B.
Defense counsel also contends that the trial court erred in allowing the State to question defendant about her earlier
conviction. Counsel asserts that the trial court "lost sight" of the grounds for admitting defendant's prior record. This
claim is without merit.
Ms. Kelly was convicted of conspiracy to commit robbery in 1971, and over defense counsel's objection the trial court
ruled that evidence of the earlier conviction was admissible. During cross-examination, the prosecution questioned
Ms. Kelly about her earlier conviction:

*217 Q. Mrs. Kelly, have you ever been convicted of a crime?

A. Yes, once.
Q. What were you convicted of?
A. Conspiracy to robbery with some —two other peoples was involved —
Q. You were convicted of conspiracy to commit robbery?
A. Yes.
Q. When was that?
A. Nine years ago, I think.
Q. 1971?
A. Something like that. I was given three years probation....
That was the only time during the two week trial that evidence as to Ms. Kelly's prior conviction was elicited or
referred to.
Prior convictions ordinarily may be used to impeach the defendant's credibility. State v. Sands, 76 N.J. 127, 146
(1978); N.J.S.A. 2A:81-12. The trial court, recognizing that, instructed the jury as to the limited purpose for which it
could consider Ms. Kelly's conspiracy conviction:
The only reason you heard that testimony was not because if you find that she committed a
crime in 1971, therefore she must have committed this crime with which she is charged.
The only reason you may use that if you wish to is to affect her believability as a witness.
That is the sole and exclusive purpose of hearing that and using that evidence.
There was no error on this point.[21]

C.
We reject defendant's contention that the prosecutor's conduct denied the defendant her right to receive a fair trial.
The defense claims that the prosecutor improperly used closing arguments to glorify her function as a prosecutor and
make an inflammatory appeal to the jury, and used her opening statement *218 to suggest that Ms. Kelly's indictment
was evidence of guilt. These complaints were not raised at trial, and thus need not be dealt with in the same way as
those raised by a timely challenge. State v. Macon, 57 N.J. 325, 333 (1971). We note, however, that the trial court
properly instructed the jury that the indictment is not proof of guilt, and our review of the closing statement does not
reveal plain error. R.2:10-2. The prosecutor neither exalted her role at length, nor disparaged the role of defense
counsel. See State v. Thornton, 38 N.J. 380 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed.2d 1039
(1963). Nor did the prosecutor's closing remarks exceed the wide latitude permitted counsel during
summation. See State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d
593 (1969).
Defendant also claims that the prosecutor was too aggressive, asked improper questions about Ms. Kelly's personal
life in an attempt to cast aspersions on defendant's moral character, and made too many objections, most of which
were overruled. While not condoning all aspects of the prosecutor's conduct, we conclude that, in the context of the
entire trial, it did not cause defendant to be denied a fair trial. See State v. Tirone, 64 N.J. 222, 229 (1974). There
were sufficient facts on which the jury could base its finding of guilt on the reckless manslaughter charge. In light of
the entire record, any impropriety that did occur was harmless and incapable of producing an unjust result. See State
v. LaPorte, 62 N.J. 312 (1973); R. 2:10-2.

D.
The defendant argues that the charge to the jury regarding provocation as an element of manslaughter was in error
because it did not state that reasonable and sufficient provocation may arise from a course of ill treatment. We agree
that the instructions on provocation were deficient. It is well settled that when there is evidence of prior physical
abuse *219 of defendant by the decedent, the jury must be told that a finding of provocation may be premised on "a
course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused
reasonably believes is likely to continue." State v. Guido, 40 N.J. 191, 211 (1963). The jury must be instructed "to
consider not only decedent's conduct and threats that night, but also his prior mistreatment of defendant." State v.
Lamb, 71 N.J. 545, 551 (1976). On retrial, this aspect of the trial court's instruction should be changed.[22]

E.
Ms. Kelly also contends that the sentence imposed —five years in state prison —was excessive. She asserts that
imprisonment would result in a serious injustice that overrides the need to deter such conduct by
others, N.J.S.A. 2C:44-1(d), and that she should instead be granted probation or entry into a release program. She
cites several mitigating factors, including her abuse at the hands of Mr. Kelly and her children's need to have their
mother at home.
The presumptive sentence for a second degree crime is seven years. N.J.S.A. 2C:44-1(f)(1). In ordering a sentence
of five years, the trial court agreed with defendant that there was a preponderance of mitigating factors, allowing it to
sentence *220 her to a minimum term for a second degree crime. N.J.S.A. 2C:43-6(a)(2); 2C:44-1(f)(1). See State v.
Roth, 95 N.J. 334, 359, 471 A.2d 370 (1984). Although we appreciate the hardship that would result from defendant's
incarceration, she is not the truly extraordinary defendant whose imprisonment would represent the "serious injustice"
envisioned by the Criminal Code. Roth, supra, 95 N.J. at 358.[23]
HANDLER, J., concurring in part and dissenting in part.
The record in this case persuasively establishes the professional acceptance and scientific reliability of the clinical
psychological condition referred to as the "battered women's syndrome." Therefore, I would rule that expert evidence
of the battered women's syndrome is both competent and relevant as related to the defense of self-defense.
Consequently, no further expert testimony or evidence concerning the admissibility *221 of this doctrine should be
required on a retrial of this case. I would also allow into evidence on the retrial the testimony of defendant's expert
that defendant was suffering battered women's syndrome when she killed her husband. That testimony was
unquestionably relevant to defendant's claim of self-defense. In addition, the evidence in this case indicates that
repeated sexual and physical victimization of a woman's children may, in conjunction with her own abused treatment,
contribute to the development of battered women's syndrome. I therefore concur in the majority's determination to
allow on a retrial evidence of the decedent's sexual assaults upon defendant's daughter as related to the issue of the
battered women's syndrome and defendant's defense of self-defense.
The Court in this case takes a major stride in recognizing the scientific authenticity of the battered women's syndrome
and its legal and factual significance in the trial of certain criminal cases. My difference with the Court is quite narrow.
I believe that defendant Gladys Kelly has demonstrated at her trial by sufficient expert evidence her entitlement to the
use of the battered women's syndrome in connection with her defense of self-defense. I would therefore not require
this issue —the admissibility of the battered women's syndrome —to be tried again.

I
This Court's opinion presents a cogent and thorough explanation of the perplexing and tragic condition of the battered
women's syndrome. This condition refers to a congeries of common traits in women who are subjected to prolonged
physical and psychological abuse by their mates. Women suffering battered women's syndrome have low self-
esteem, strong feelings of personal guilt over their failing marriages, and self-blame for the violence that their mates
inflict upon them. Ante at 195-196, citing L. Walker, The Battered Woman 35-36 (1979) (Walker). Typically, such
battered women are dominated *222 by unshakeable fear, which often traps them into remaining with their battering
mates. Id., citing D. Martin, Battered Wives 76-79 (1981) (Martin). Victims of battered women's syndrome frequently
become so demoralized and degraded that they lapse into a psychological torpor, a state of "learned
helplessness." Ante at 194-195, citing Walker, supra, at 75.
The relationships that typify the syndrome usually involve cyclical behavior. One recurrent phase of the cycle includes
a period of contrite behavior by the batterer, which reinforces the illusion of these victimized women that their mates
will change and reform, further binding them to the relationship. Ante at 193, citing Walker, supra, at 55-70; R.
Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977). Many battered women perceive the battering cycle
as commonplace, and refuse to acknowledge the abnormality of their plight. Ante at 194, citing T. Davidson, Conjugal
Crime (1978); Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977);
Martin, supra, at 60.
The Court's opinion explains that the abusive pattern that characterizes this syndrome is a phenomenon that puzzles
and confuses the untutored lay person. The violence common to the syndrome is the subject of widespread
ignorance and misinformation. It has spawned myths as to its causes and distorted stereotypes of its victims. Ante at
192. Some common misconceptions about battered women include the beliefs that they are masochistic and actually
enjoy their physical and psychological suffering, that they purposely provoke their mates into violent behavior and,
most critically, that women who remain in battering relationships are free to leave their abusers at any time. Id., citing
Walker, supra, at 19-31.
This Court's enlightened exposition of the battered women's syndrome, drawn from the record in this case lays a firm
foundation for a determination of the admissibility of expert testimony relating to the syndrome in the trial of
particular *223 criminal causes under the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., and our rules of
evidence.

II
Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other
specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in
issue." In effect, this rule imposes three basic requirements for the admission of expert testimony: (1) the intended
testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be
at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have
sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5
to Evid.R. 56; State v. Cavallo, 88 N.J. 508 (1982); State v. Hurd, 86 N.J. 525 (1981).
The first criterion for the admission of expert testimony under Evidence Rule 56(2) is that the subject matter is fully
comprehended primarily by experts, persons who have special training and education in the particular field.
Correlatively, the subject matter ordinarily falls beyond the common understanding of persons of average intelligence
and education. In this case, it has been firmly established that the battered women's syndrome is a subject that is
properly within the special comprehension of experts. Also, as the record abundantly demonstrates, the battered
women's syndrome is a subject that is not fully understood by the average person. Consequently, it is an appropriate
matter for elucidation through expert testimony. State v. Griffin, 120 N.J. Super. 13, 29 (App. Div. 1972), certif. den.
62 N.J. 73 (1972); Nesta v. Meyer, 100 N.J. Super. 434 (App.Div. 1968), cited in State v. Cavallo, supra, 88 N.J. at
518; Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961).
The second requirement of Evidence Rule 56(2) that must be met before expert testimony on a particular subject is
permitted *224 is a showing that the proposed testimony would be reliable. State v. Cavallo, supra, 88 N.J. at 516-17
(1982). There must be a sufficient scientific basis for the expert testimony. The asserted scientific body of knowledge
must be considered reliable by those who have professional training and responsibility in the field. Romano v.
Kimmelman, 96 N.J. 66, 80 (1984); State v. Hurd, supra, 86 N.J. at 536; State v. Cary, 49 N.J. 343, 352 (1967).
There are generally three ways a proponent of expert testimony can prove its reliability in terms of its general
acceptance within the professional community. First, such general acceptance can be established by the testimony of
knowledgeable experts. Second, authoritative scientific literature can be used to establish professional acceptance.
Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be
followed. State v. Cavallo, supra, 88 N.J. at 521.
These criteria for the admissibility of expert testimony relative to the battered women's syndrome have been met in
this case. Because the battered women's syndrome is a relatively new field of research, only a few courts have had
the opportunity to consider its evidential admissibility. Some courts have already acknowledged the scientific
acceptability of the syndrome and the reliability of the methodology used by practitioners and researchers in this
field. See, e.g., State v. Allery, 101 Wash.2d 591, 596, 682 P.2d 312, 315 (1984) (en banc) (battered women's
syndrome sufficiently accepted in scientific community and sufficiently outside lay competence so as to be
appropriate subject of expert testimony in criminal trial); State v. Anaya, 438 A.2d 892 (Me. 1981); Smith v.
State, 247 Ga. 612, 277 S.E.2d 678 (1981). Other courts have not yet done so. Compare Hawthorne v.
State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982) and Ibn-
Tamas v. United States, 407 A.2d 626 (D.C.Ct.App. 1979) (remanding to trial court for further consideration of
scientific acceptability) with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981) *225 and State v. Thomas, 66 Ohio St.2d
518, 423 N.E.2d 137 (1981) (holding that subject was not sufficiently established as a matter of scientific expertise).
In light of the compelling record that has been established in this case, I am persuaded of the soundness of those
decisions that have concluded that the battered women's syndrome constitutes a valid subject of expert testimony. I
am satisfied that these decisions are correct and will emerge as the authoritative position on this issue.
The record before us, based on expert testimony, including scientific writings, further reveals that the battered
women's syndrome has gained general acceptance as a scientific doctrine within the professional community. Dr.
Lois Veronen, a highly qualified expert in the field, testified that the battered woman's syndrome is acknowledged and
accepted by practitioners and researchers in the fields of psychology and psychiatry. In addition, Dr. Veronen testified
to the existence of numerous authoritative books, articles and papers evidencing the scientifically recognized,
expanding field of study and research about the battered woman's syndrome. See Buckelew v.
Grossbard, 87 N.J. 512 (1981); Calabrese v. Trenton State College, 82 N.J. 321 (1980). The abundance of this
authoritative literature was also made evident on this appeal —over 70 scientific articles and several books have
been published on the subject. Dr. Veronen further testified that, since 1977, the battered women's syndrome has
been recognized at several symposiums sponsored by such organizations as the Association for the Advancement of
Behavior Therapy and the American Sociological Association. See Giannelli, "The Admissibility of Novel Scientific
Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197 (1980) (under appropriate
circumstances, speeches, addresses, and other non-written sources may be used to demonstrate the acceptance of
a premise by the scientific community).
Public policy considerations complement these traditional modes for determining whether a particular subject matter
is reliable and within the purview of expert knowledge. An *226 emerging public policy acknowledges the battered
women's syndrome. Psychiatrists, psychologists, and social scientists, as well as the legal and law enforcement
community, have begun to come to grips with the forces that generate and perpetuate familial and domestic
violence. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); Martin, supra; Walker, supra; R.
Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women:
A Psychosociological Study of Domestic Violence (M. Roy, ed. 1977). The New Jersey Legislature has recognized
the pervasiveness and gravity of domestic violence, which in so many cases forms the backdrop against which the
battered women's syndrome appears. See Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to
-16; Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to -17; New Jersey Supreme
Court Task Force on Women in the Courts, Summary Report at 5-6 (Nov. 21, 1983). The Legislature was presumably
aware of the burgeoning expert opinion and literature that recognized the battered women's syndrome as both a
contributing cause and devastating consequence of domestic and familial violence. This growing awareness extends
to the national level as well, as evidenced, for example, by the U.S. Attorney General's formation, in September 1983,
of a task force on family violence "to review [the] basic assumptions that underpin the handling of [domestic] violence
cases." Statement of Attorney General William French Smith, September 19, 1983.
The final requirement of Evidence Rule 56(2) for the admission of expert testimony is the showing that the proffered
expert witness has sufficient expertise to testify. State v. Cavallo, supra, 88 N.J. at 516. In this case, as recognized by
the Court, Dr. Veronen was clearly highly qualified to testify as an expert with respect to the psychological condition
of battered women's syndrome. Ante at 211. Furthermore, her proffered testimony fully met the standards for the
receipt of expert testimony concerning the battered women's syndrome.
*227 In addition to her general knowledge of the battered women's syndrome, Dr. Veronen was familiar with the facts
in this case and competent to testify in that regard. Dr. Veronen described the various psychological tests and
examinations she had performed in connection with her independent research and the application of this
methodology to defendant. Dr. Veronen was prepared to express her professional opinion that Gladys Kelly was an
abused woman suffering from battered women's syndrome when she fatally stabbed her husband.
In sum, the record fashioned in this case convincingly demonstrates, through the testimony of an eminently qualified
expert witness, that expert testimony concerning the battered women's syndrome is now generally accepted and
regarded as reliable within the professional community. Its competence and relevance as evidence in the trial of
particular criminal cases has been shown. The battered women's syndrome is sufficiently reliable to authorize its
admissibility as a proper subject of expert testimony. In my view, this evidence should have been allowed in the trial
of this case.

III
I concur in the majority's determination that the testimony of defendant's seventeen-year-old daughter, Edith Cannon,
concerning the decedent's beatings of Gladys and her children, should have been admitted into evidence at the
trial. Ante at 215-216. Defendant's daughter was also prepared to testify that she had been sexually abused by
decedent since she was 12 years of age and had related this to her mother. However, the trial judge, on the basis of
Evidence Rule 4, excluded Edith's testimony that she had told her mother about the decedent's sexual assaults upon
her.
The expert evidence fairly shows that such circumstances —the physical and sexual abuse of battered women's
children —cannot be separated from all of the factors that contribute to the syndrome. Such child abuse occurs in
75% of the battering *228 relationships that eventuate in homicide, and frequently constitutes a "critical factor in the
tension * * * before some lethal incidents." Walker, supra, at 11. Consequently, such evidence of child abuse is
relevant in a case in which the battered women's syndrome is a material issue.
To reiterate, expert testimony on the battered women's syndrome and the applicability of this syndrome to the
defendant's claim of self-defense should be allowed on the retrial of this case. Evidence of the victim's abuse of the
defendant's children, including sexual assaults on her daughter, are part of the dismal composite that constitutes the
battered women's syndrome. Such evidence is highly probative of the issue of self-defense in the context of the
battered women's syndrome and its evidential worth clearly outweighs its potential for prejudice or confusion.

IV
In sum, I believe the Court acts without sufficient warrant in remanding this case to permit the issue of the general
admissibility of expert testimony on the battered women's syndrome to be tried anew. The record reveals that the
issue of admissibility was fairly presented at trial. That record has generated an evidential base sufficiently solid to
permit, if not mandate, our acceptance of the battered women's syndrome as expert doctrine. While it is arguable that
the State did not fully challenge the evidence below, its position on appeal is essentially that the evidence proffered at
the trial was not adequate to establish the scientific reliability of the battered women's syndrome. The Court now
unanimously rejects that position. I think it pointless and unfair to encourage the State to renew its attacks upon the
authenticity of the battered women's syndrome doctrine.
For the reasons expressed, I dissent in part from the Court's decision.
*229 For reversal —Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O'HERN and
GARIBALDI —6.
Concurring in part and dissenting in part —Justice HANDLER —1.

NOTES
[1] This version of the homicide —with a drunk Mr. Kelly as the aggresor both in pushing Ms. Kelly to the ground and
again in rushing at her with his hands in a threatening position after the two had been separated —is sharply disputed
by the State. The prosecution presented testimony intended to show that the initial scuffle was started by Gladys; that
upon disentanglement, while she was restrained by bystanders, she stated that she intended to kill Ernest; that she
then chased after him, and upon catching up with him stabbed him with a pair of scissors taken from her pocketbook.
[2] The works that comprise the basic study of the problem of battered women are all relatively recent. See, e.g., R.
Langley & R. Levy, Wife Beating: The Silent Crisis (1979); D. Martin, Battered Wives (1976); L. Walker, The Battered
Woman (1979); R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and
Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy ed. 1977).
Similarly, legislative activity in this field is relatively new; for example, New Jersey's Prevention of Domestic Violence
Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16 and the Shelters for Victims of Domestic Violence
Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to-17.
In enacting the Prevention of Domestic Violence Act, the New Jersey Legislature recognized the pervasiveness and
seriousness of domestic violence:
The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands
of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or
cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence
come from all societal and economic backgrounds and ethnic groups; that there is a positive correlation between
spouse abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer
deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to
assure the victims of domestic violence the maximum protection from abuse the law can provide. [N.J.S.A. 2C:25-2].
[3] In her book, The Battered Woman, Dr. Lenore Walker cites research by sociologists Straus, Gelles, and Steinmetz
finding that in 1976 at least one assault between family members occurred in 28% of all American homes. Id. at 70.
[4] In 1976, for example, battered women in California and New York instituted class actions alleging that the police
customarily denied women legal protection by refusing to assist battered women or arrest their abusing husbands.
The cases were settled by consent judgment. Scott v. Hart, No. C-76-2395 (N.D.Cal., filed Oct. 28, 1976); Bruno v.
Codd, 90 Misc.2d 1047, 396 N.Y.S.2d 974 (Sup.Ct. 1977), aff'd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d 901
(1979).
[5] Alcohol is often an important component of violence toward women. Evidence points to a correlation between
alcohol and violent acts between family members. In one British study, 44 of 100 cases of wife abuse occurred when
the husband was drunk. Gayford, "Wife Battering: A Preliminary Survey of 100 Cases," British Medical Journal 1:194-
197 (1975). Gelles, in The Violent Home: A Study of Physical Aggression between Husbands and Wives (1979),
found that in 44 families where violence had occurred, drinking accompanied the violence in 21 of the cases. He also
posited that alcohol and family violence are more closely related than alcohol and other types of violence.
[6] Prior to the enactment of the Code, former N.J.S.A. 2A:113-6 provided a statutory basis for self-defense claims
specifically and justification defenses generally. However, as noted by the New Jersey Criminal Law Revision
Commission, the law concerning justification was that found in the cases, since the literal wording of 2A:113-6 was
not followed. Final Report of the New Jersey Criminal Law Revision Commission Vol. II: Commentary, at 78-79
(1971).
[7] See also Restatement of Torts 2d § 63 (1965) at 101. Under principles of self-defense as a justification for the
torts of assault and battery —which closely parallel criminal self-defense principles —no privilege of self-defense
exists for one acting in ignorance of another's intent to inflict harm on him. Cf. Perkins, "Self-Defense Re-examined,"
1 U.C.L.A.L.Rev. 133, 134 (1954).
[8] The rejected form of § 2C:3-4 was patterned after § 3.04 of the Model Penal Code. The purpose of the proposed
Code and M.P.C. provisions was to prevent one who killed in the honest but mistaken and unreasonable belief in the
necessity of the action from being convicted of a crime like murder, which is premised on an act motivated by
unlawful purpose. See Model Penal Code § 3.04 commentary at 14-15 (Tent. Draft No. 8 1958); Commission Report,
supra, Vol. II: Commentary, at 83-84.
[9] In State v. Powell, 84 N.J. 305 (1980), we explicitly recognized that before enactment of the Code the doctrine of
imperfect self-defense could reduce murder to manslaughter when the defendant honestly but unreasonably
perceived himself in such danger as to require the use of deadly force. However, we expressed no opinion on
whether imperfect self-defense was available under the new Code for the purpose of reducing murder to
manslaughter. The resolution of that issue is immaterial to the case at bar.
[10] The factual contentions of the parties eliminated any issue concerning the duty to retreat. If the State's version is
accepted, defendant is the aggressor; if defendant's version is accepted, the possibility of retreat is excluded by virtue
of the nature of the attack that defendant claims took place. We do not understand that the State claims defendant
breached that duty under any version of the facts. If, however, the duty becomes an issue on retrial, the trial court will
have to determine the relevancy of the battered-woman's syndrome to that issue. Without passing on that question, it
appears to us to be a different question from whether the syndrome is relevant to defendant's failure to leave her
husband in the past.
[11] The State may not bar the introduction of expert testimony about the battered-woman's syndrome by stipulating
that the defendant's fear of serious bodily harm was honestly held. In State v. Laws, 50 N.J. 159 (1967), we rejected
the suggestion that the State should be compelled to stipulate to —and not introduce evidence on —those facts that
the defendant did not dispute. We held that subject to the trial court's overriding control of the proceedings, the State
"should have the right to make a full showing before the jury whenever it considers such course necessary for the
proper presentation of its case." Id. at 184. Similar considerations compel the same result here, should the defendant
seek to introduce testimony on a fact —the honesty of defendant's fear of serious bodily harm —that the State does
not contest. This holding protects the defendant's due process rights by allowing her to offer testimony to establish a
defense. See Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330, 333 (1972) (citing Washington v.
Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). Without the introduction of expert testimony to
dispel common misconceptions about battered women, a jury might well question the stipulation of honesty.
[12] The State contends that even if the expert testimony is held admissible, its exclusion should be considered
harmless error because of defendant's conviction for reckless manslaughter. The State's position is that
under N.J.S.A. 2C:3-9(b) as it existed at the time of Gladys Kelly's conviction, self-defense was not available as a
defense for any offense for which recklessness or negligence suffices to establish culpability, including, presumably,
offenses where the defendant was reckless or negligent in believing the use of force to be necessary, or in acquiring
or failing to acquire any knowledge that is material to the justifiability of the use of force. The argument, therefore, is
that the expert testimony could not have saved defendant from the reckless manslaughter verdict.
N.J.S.A. 2C:3-9(b) was never intended to serve the function ascribed to it by the State. In fact, inclusion of the
provision in the Code appears to have been an error, which has since been corrected by its repeal. See
L. 1981, c. 290. The reasons for the inclusion and repeal of this provision are concisely stated in the legislative history
of the repealer:
As originally drafted, justification defenses (i.e. self-defense) under the code were available to a defendant if his belief
in the necessity of the use of force was honestly held. In conjunction with this provision, the code also provided in
2C:3-9b that if the defendant was reckless or negligent in forming that belief, he could be convicted of a crime for
which recklessness or negligence was the required mental element. As enacted, however, the code requires not only
that a defendant's belief be honestly held but also that his belief in the necessity to use force be reasonable. This
requirement that a defendant's belief be both honest and reasonable vis a vis a justification defense obviates the
necessity for the provision in 2C:3-9b that the reckless or negligent use of force can establish criminal liability.
Therefore, the amendment in section 7 would delete this provision. [Senate Judiciary Committee, Statement to
Committee Substitute for S. 2537 at 2 (1982)].
In other words, when the original draft of the Code provided that an honest belief in the need for deadly force sufficed
to establish self-defense, the Code had to deal with the situation in which that belief, though honest, had been
recklessly formed. The subsequently repealed section, N.J.S.A. 2C:3-9(b), performed that function by providing that
such an honest belief, recklessly formed, was no justification for offenses when culpability was based on that very
same recklessness. The Code as passed, however, defined self-defense as requiring a reasonable belief, thereby
rendering section 9(b) unnecessary since, under that definition, self-defense could not be established as a
justification for any offense if the actor's belief in the need for force, though honest, was recklessly formed, i.e., was
unreasonable. The repealer simply clarified the legislative intent that existed when the Code first became law, which
was that self-defense based on a reasonable belief in the need for deadly force would constitute justification —a
complete defense —to the charge of reckless manslaughter. If the jury here found defendant's belief was both
honest and reasonable, it would be required to acquit her of all charges.
[13] At least two other courts agree that expert testimony about the battered-woman's syndrome is relevant to show
the reasonableness as well as the honesty of defendant's fear of serious bodily harm. Ibn-Tamas v. United
States, 407 A.2d 626, 634-35 (D.C. 1979) (expert testimony "would have enhanced Mrs. Ibn-Tamas' general
credibility in responding to cross-examination designed to show that the testimony about the relationship with her
husband was implausible," and also "would have supplied an interpretation of the facts which differed from the
ordinary lay perception"); Hawthorne v. State, 408 So.2d 801, 806-07 (Fla. Dist. Ct. App. 1982) (expert testimony
would "aid the jury in interpreting the surrounding circumstances as they affected the reasonableness of [defendant's]
belief," because "a jury would not understand why [defendant] would remain [with her husband]"); State v.
Allery, 101 Wash.2d 591, 682 P.2d 312, 316 (Wash.Sup.Ct. 1984) (court approved use of expert testimony "[t]o
effectively present the situation as perceived by the defendant, and the reasonableness of her fear ... to enable the
jury to overcome stereotyped impressions about women who remain in abusive relationships"). But
see Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974) (psychiatric testimony held to be of no help in
determining whether a fear of serious bodily harm was reasonable).
Defendant's counsel at oral argument made it clear that defendant's basic contention was that her belief in the
immediate need to use deadly force was both honest and reasonable; and that the evidence concerning the battered-
woman's syndrome was being offered solely on that issue. We therefore are not faced with any claim that a battered
woman's honest belief in the need to use deadly force, even if objectively unreasonable, constitutes justification so
long as its unreasonableness results from the psychological impact of the beatings. The effect of cases like State v.
Sikora, 44 N.J. (1965) (opinion of psychiatrist that acts of defendant, admittedly sane, were predetermined by
interaction of events and his abnormal character held inadmissible on issue of premeditation), and State v.
Bess, 53 N.J. 10 (1968) (reasonableness of belief in need for deadly force not measured by what would appear
"reasonable" to abnormal defendant) is not before us. Nor is there any claim that the battering provocation might
have some legal effect beyond the potential reduction of defendant's culpability to manslaughter, or something other
than an "immediate" need for deadly force will suffice. See State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983),
(battered wife stabs sleeping husband).
[14] Of course, expert testimony that meets these three criteria is still subject to other rules of evidence. For example,
the probative value of the testimony must not be substantially outweighed by the risk that its admission would
necessitate undue consumption of time or create substantial danger of undue prejudice or of confusing the issues or
of misleading the jury. Evid. R. 4. The danger of undue prejudice would be only slightly greater if expert testimony on
the battered-woman's syndrome is introduced than without it, however, because the jury, even without it, will certainly
hear about the past beatings from lay witnesses.
[15] The following courts agree that the battered-woman's syndrome is beyond the understanding of the average
person: Ibn Tamas v. United States, supra, 407 A.2d 626; Smith v. State, supra, 247 Ga. 612, 277 S.E.2d
678; Hawthorne v. State, supra, 408 So.2d 801; State v. Anaya, supra, 438 A.2d 892. But see State v. Thomas,
supra, 66 Ohio St.2d 518, 423 N.E.2d 137.
[16] Compare State v. Anaya, supra, 438 A.2d 892, and Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678 (both
cases accepting expert testimony without reservation), with Hawthorne v. State, supra, 408 So.2d 801, and Ibn-
Tamas v. United States, supra, 407 A.2d 626 (both cases remanding to trial court for further consideration of scientific
acceptability), and with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981), and State v. Thomas, supra, 66 Ohio St.2d 518,
423 N.E.2d 137 (both cases holding that subject was not sufficiently established as a matter of scientific expertise).
[17] Under appropriate circumstances, speeches, addresses, and other similar sources may be used to demonstrate
the acceptance of a premise by the scientific community. See Giannelli, "The Admissibility of Novel Scientific
Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197, 1217 (1980).
[18] In addition to her general knowledge of the battered-woman's syndrome, Dr. Veronen is quite familiar with the
facts in this case. Dr. Veronen interviewed Ms. Kelly for approximately five hours, during which time the two spoke
about Ms. Kelly's background, Ms. Kelly's first meeting with Mr. Kelly, Ms. Kelly's relationship with her children and
Mr. Kelly, the history of the physical abuse she suffered, and her stabbing of Mr. Kelly. Dr. Veronen also reviewed
several psychological tests that were administered to Ms. Kelly, and from those concluded that Ms. Kelly was a
battered woman. In addition, Dr. Veronen reviewed statements of eyewitnesses to the stabbing, police reports, and
Ms. Kelly's hospital reports following the stabbing.
[19] It is not contended by anyone that the battered woman's syndrome has been so well established in the scientific
community and is so well known by the public as to authorize the Court to take judicial notice of it. Therefore, unlike
some expert evidence (radar, for example, State v. Dantonio, 18 N.J. 570 (1955)) where all that is required is to show
that the accepted body of scientific knowledge is being correctly applied, here the very existence and reliability of
such scientific knowledge has to be established. As a matter of fact, the literature suggests that while there is a
growing body of research concerning the syndrome, it is still in a relatively uncertain stage, there remaining some
doubt about its validity. It is, therefore, necessary for this Court to be sure that on remand the State has an adequate
opportunity to present such proofs as might persuade the trial court that the syndrome has not yet achieved sufficient
acceptance in the scientific community to warrant its admissibility. While our dissenting colleague is apparently
convinced both from the record and his own research that as a matter of law the syndrome has achieved that level of
acceptability to warrant its admission, that procedure, leading to that conclusion, seems to us manifestly unfair to the
State. Even if we were inclined to agree with our dissenting colleague on this issue, that would be beside the point,
for what is involved here is not the correctness of the conclusion concerning the general acceptability within the
scientific community of the battered-woman's syndrome, but the fundamental fairness of the proceedings in the trial
court that might lead to such a conclusion. It is absolutely clear that the only proceedings concerning the syndrome
before the trial court was the voir dire testimony of Dr. Veronen, that the State was permitted cross-examination only
as to her qualifications, and that the court repeatedly assured the assistant prosecutor that "ample time" would be
given on all issues concerning the syndrome. Not only was "ample time" not given, but no time was allowed, for the
trial court, apparently believing that the proposed use of this testimony had been made clear, decided that the
testimony would be inadmissible as a matter of law even if the witness were ruled to be an expert and even if the
body of knowledge were ruled to be beyond the ken of jurors and generally accepted within the scientific community.
The court's ruling that the expert's testimony was inadmissible was prefaced by the following statement: "I fully
appreciate you have not had another opportunity to examine the Witness, Mrs. Cooper," the remark of the court being
addressed to the assistant prosecutor. Throughout the transcript there were repeated references by the court and
Mrs. Cooper to the fact that her role, up to that point, had been confined to cross-examination only on the witness's
qualifications.
[20] Evidence Rule 4 provides:
The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the
risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice or of confusing the issues or of misleading the jury.
[21] The trial court has discretion to bar the admission of prior convictions if it finds that their probative value is
outweighed by their prejudice to the defendant. State v. Sands, supra, 78 N.J. at 146. The burden of proving that the
prior convictions should be excluded, however, falls on the defendant. Ibid. We do not find that the trial court abused
its discretion in allowing the limited testimony cited earlier, even though the remoteness of Ms. Kelly's earlier
conviction would also have supported a ruling that her conspiracy conviction could not be brought out.
[22] We note that given defendant's conviction for reckless manslaughter under N.J.S.A. 2C:11-4(b)(1), these
instructions would not constitute harmful error. Both reckless homicide and homicide committed in the heat of passion
resulting from a reasonable provocation constitute manslaughter, and both are crimes of the second
degree. N.J.S.A. 2C:11-4(b), (c). Defendant's conviction for reckless manslaughter instead of manslaughter by
provocation, therefore, did not prejudice her in terms of sentencing. Neither did it produce a compromise verdict of
the type referred to in State v. Christener, 71 N.J. 55 (1976) where the concern was with the prejudicial effect of
overcharging the jury by giving instructions on first degree murder that were not sufficiently supported by the
evidence. This is easily distinguishable from the problem here, which involves only a deficient instruction for an
alternate theory of the offense for which the defendant actually was convicted.
[23] We note that under the Code even if it is certain that the actor's life will soon be threatened, the actor may not
use deadly defensive force until that threat is imminent. If he or she does, the crime in most cases would presumably
be murder or manslaughter (see N.J.S.A. 2C:3-4a & 4b(2); 2C:11-3; 2C:11-4b), the last exposing the actor to a
sentence of ten years in prison with a five-year discretionary parole ineligibility term or, if a firearm is used, a three-
year mandatory parole ineligibility term. N.J.S.A. 2C:43-6a, b & c. The requirement that the use of deadly force, in
order to be justifiable, must be immediately necessary, has as its purpose the preservation of life by preventing the
use of deadly force except when its need is beyond debate. The rule's presumed effect on an actor who reasonably
fears that her life will soon be endangered by an imminent threat is to cause her to leave the danger zone, especially
if, because of the circumstances, she knows she will be defenseless when that threat becomes imminent. The rule, in
effect, tends to protect the life of both the potential aggressor and victim. If, however, the actor is unable to remove
herself from the zone of danger (a psychological phenomenon common to battered women, according to the
literature), the effect of the rule may be to prevent her from exercising the right of self-defense at the only time it
would be effective. Instead she is required by the rule to wait until the threat against her life is imminent before she
responds, at which time she may be completely defenseless.
There is, of course, some danger that any attempt to mitigate what may be undeserved punishment in these cases
(by some further statutory differentiation of criminal responsibility) might weaken the general deterrent effect of our
homicide laws. That is a matter the Legislature might wish to examine.

People v. Wilson, 487 N.W.2d

822 (Mich. Ct. App. 1992)
Michigan Court of Appeals
Filed: July 6th, 1992
Precedential Status: Precedential
Citations: 487 N.W.2d 822, 194 Mich. App. 599
Docket Number: 140339
Panel: Thomas J. Brennan, Donald E. Holbrook Jr., Gary R. McDonald
Judges: Brennan, P.J., and Holbrook, Jr., and McDonald

194 Mich. App. 599 (1992)

 487 N.W.2d 822

PEOPLE
v.
WILSON
Docket No. 140339.

Michigan Court of Appeals.

Decided July 6, 1992, at 9:35 A.M.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Larry J. Burdick, Prosecuting Attorney,
and Mark H. Duthie, Chief Assistant Prosecuting Attorney, for the people.
Daniel R. O'Neil, for the defendant.
Amicus Curiae:
Criminal Defense Attorneys of Michigan (by Gail Rodwan and Jeanice Dagher-Margosian).
Before: BRENNAN, P.J., and HOLBROOK, JR., and McDONALD, JJ.
McDONALD, J.
The people appeal by leave granted from an April 29, 1991, interlocutory order granting defendant's motion in limine
regarding the admissibility of expert opinion testimony regarding the "battered spouse syndrome" (BSS). We affirm in
part, reverse in part, and remand for further proceedings consistent with this opinion.
The issue before this Court is one of first impression and involves the admissibility of expert testimony regarding the
BSS in situations where a self-defense claim is raised in a homicide trial. Defendant is charged with open murder,
MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b;
MSA *601 28.424(2), arising out of the shooting death of her husband. Defendant admits shooting the victim while he
slept, but claims she acted in self-defense following forty-eight hours of abuse and death threats and years of battery.
Defendant asserts expert testimony regarding the BSS is essential to her defense, and thus she filed a motion before
trial to obtain an advance ruling regarding its admissibility. The people challenged the motion, denying the relevancy
of the proposed testimony absent an offer of proof by defendant demonstrating that she was battered during her
relationship with her husband and arguing defendant should be required to disclose the identity of the proposed
witness. The people further suggested that the testimony, if found admissible, should be limited to a description by
the expert of general behavioral patterns attributable to an individual suffering from the syndrome, and should not
include expert testimony regarding the ultimate fact whether defendant suffers from the syndrome or whether the
shooting resulted therefrom. The trial court entered an opinion and order finding expert testimony regarding the BSS
admissible under the following parameters:

[A]n expert qualified in the battered spouse syndrome may testify: (1) to a description of the
general syndrome; (2) that the particular behavior of the spouse was characteristic of
battered spouse syndrome victims generally; (3) whether the defendant suffers from the
syndrome; (4) whether the defendant's act was the result of the syndrome. The expert may
not testify that the allegations of battering are in fact truthful or not. Issues of credibility are
for the jury.
We agree with the people and find the trial court's holding allowing expert testimony that defendant *602 suffers from
this syndrome and that defendant's specific acts are attributable to this syndrome too broad and thus improper.
The decision to admit or deny expert testimony falls within the sound discretion of the trial court and will not be
reversed absent a clear abuse of that discretion. People v Beckley, 434 Mich. 691; 456 NW2d 391 (1990). Expert
testimony may be received when it is "necessary" or "helpful" to the trier of fact in deciding an issue that is
material.[1] MRE 702; Beckley, supra.
Defendant argues expert testimony regarding the BSS will help present her theory of self-defense. In People v
Heflin, 434 Mich. 482; 456 NW2d 10 (1990), our Supreme Court addressed the test for determining whether a
person acts in self-defense. In Michigan, a homicide is justified under the theory of self-defense if the defendant
"honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily
harm." Heflin at 502. A defendant who argues self-defense implies his actions were intentional but that the
circumstances justified his actions. Heflin, supra. Thus, defendant argues the jury should consider the fact she
suffered from the BSS in evaluating her self-defense claim because it relates to the question whether she reasonably
believed her life was in danger. Defendant also argues the evidence is relevant in rebutting the *603 prosecution's
claim that she could have left her husband. One court has described the syndrome as follows:
The "battered woman syndrome" generally refers to common characteristics appearing in
women who are physically and psychologically abused by their mates. The typical pattern of
violence consists of three recurrent phases of abuse: a tension-building stage,
characterized by minor abuse; an acute battering stage, characterized by uncontrollable
explosions of brutal violence; and a loving respite stage, characterized by calm and loving
behavior of the batterer, coupled with pleas for forgiveness. The continued cycle of violence
and contrition results in the battered woman living in a state of learned helplessness.
Because she is financially dependent on the batterer, she may feel partly responsible for the
batterer's violence, she may believe that her children need a father, or fear reprisal if she
leaves. The battered woman lives with constant fear, coupled with a perceived inability to
escape. Eventually, she comes to believe that her only options are enduring the abuse,
striking back, or committing suicide. [Tourlakis v Morris, 738 F Supp 1128, 1134 (SD Ohio,
1990), citing Fennell v Goolsby, 630 F Supp 451, 456 (ED Pa, 1985).]
We do not believe the average juror is familiar with the complex behavior of a victim of the BSS. [2] Moreover, the
majority of jurisdictions favor the admissibility of expert testimony regarding the BSS. See, generally, anno:
Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 ALR4th 1153
(1982); Tourlakis *604 v Morris, supra. Testimony regarding the BSS has been used in other jurisdictions to explain
how a battered spouse reacts to the batterer, to explain the reasonableness of the battered spouse's perception that
danger or great bodily harm is imminent, and also to rebut the prosecution's inference that the defendant could have
left rather than kill the spouse. Tourlakis, supra, State v Hennum, 441 NW2d 793 (Minn, 1989), and Mather, The
skeleton in the closet: the battered woman syndrome, self-defense and expert testimony, 39 Mercer L R 545 (1988).
We conclude that in cases such as this one expert testimony regarding the BSS will give the trier of fact a "better
understanding of the evidence or assist in determining a fact in issue." Beckley at 711.
Having determined the introduction of expert testimony regarding the BSS generally may be relevant and helpful to
the jury, we must now address the scope of its admissibility. As previously noted, we find the parameters outlined by
the trial court to be too broad. We look to our Supreme Court's decision in People v Beckley, supra, for guidance.
In Beckley, the Court addressed the admissibility of expert testimony regarding the child sexual abuse
accommodation syndrome. Given the nature of "syndrome" evidence, we find the reasoning contained
in Beckley applicable to testimony regarding the BSS.
In Beckley, the Court found expert testimony regarding the syndrome useful to the jury because it provided the jury
information with which to dispel some of the common misconceptions regarding a child's behavior following abuse.
Given this rationale for the introduction of "syndrome" testimony, the Court limited the testimony to background
information or discussion of the traits or symptoms experienced by victims of the syndrome. *605 Because an expert
regarding the child sexual abuse accommodation syndrome is an expert with regard to the syndrome and not the
victim, it is inappropriate for that expert to render an opinion regarding whether the victim actually suffers from the
syndrome. However, the Court in Beckley held the expert could render an opinion that the victim's behavior is
common to the class of child abuse victims as long as the symptoms are already established in evidence. The expert
may not introduce new facts about the victim unless those facts are properly admitted under a rule other than MRE
702. Beckley at 726-727, 729.
We believe the same limitations should apply to experts who testify about the BSS. As with the child abuse
syndrome, the BSS expert is an expert with regard to the syndrome and not the particular defendant. Thus, the expert
is qualified only to render an opinion regarding the "syndrome" and the symptoms that manifest it, not whether the
individual defendant suffers from the syndrome or acted pursuant to it.
We therefore affirm that portion of the trial court's interlocutory order permitting the introduction of expert testimony
regarding a description of the general syndrome and that certain behavior of the defendant already in evidence is
characteristic of battered spouse victims generally, but reverse that portion of the order permitting testimony
regarding whether the defendant suffers from the syndrome and whether the defendant's act was the result of the
syndrome. Further, as ordered by the trial court and consistent with Beckley, the expert may not testify that the
allegations of battery are in fact truthful, this being an issue of credibility for the jury.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.

NOTES
[1] We do not address the requirement of MRE 702 that the expert testimony constitute evidence of a recognized
scientific, technical, or other specialized discipline because the people concede this point by acknowledging the
admissibility, in some form, of BSS testimony. Moreover, in Beckley, supra, our Supreme Court recognized the
existence of the syndrome and held as a general rule that behavioral sciences are not subject to the Davis-
Frye test, People v Davis, 343 Mich. 348; 72 NW2d 269 (1955); Frye v United States, 54 App DC 46; 293 F 1013
(1923). Likewise, we do not address the sufficiency of defendant's proposed expert's qualifications because the trial
has yet to commence and the trial court has therefore not ruled with regard to this question.
[2] In Beckley, supra, in permitting the introduction of expert testimony regarding the child sexual abuse
accommodation syndrome, our Supreme Court recognized society's adverse reaction to the typical behavior of
victims of sexual assaults and found testimony by an expert helpful to explain the unfamiliar responses of children
subjected to such abuse.

State v Hennum 441 NW 2d 793

POPOVICH, Chief Justice.

Defendant JoAnn Hennum was convicted by jury verdict in Wabasha

County District Court of one count of second degree felony murder in
violation of Minn.Stat. § 609.19, subd. 2 (1986), in the shooting death of
her husband, Robert Hennum. Defendant argues on appeal the trial court
erred in ordering defendant to undergo an adverse mental examination
by the state's expert and as a result of this examination her constitutional
right against self-incrimination was violated. The Minnesota Court
of Appeals in State v. Hennum, 428 N.W.2d 859 (Minn.App. 1988),
reversed the conviction and remanded for a new trial based on these
grounds. We affirm the conviction; reverse the court of appeals' order
for a new trial; and modify the sentence.
I.
JoAnn Hennum met Robert Hennum in a Rochester bar, Roxie's, in
1973. JoAnn had previously been married to Ronald Atkinson with
whom she had five children. JoAnn divorced Atkinson in 1966 and all
five children were living with her at the time she met Robert.

Three or four months after JoAnn and Robert met, Robert moved in with
JoAnn and her family in the Broadmore Apartments in Rochester.
Robert continued living with JoAnn through a series of moves they
made to different locations around the state. They were married in May
of 1976 and eventually settled with four of JoAnn's children in a trailer
home near Hammond, Minnesota, in May of 1983. The Hennums were
residing there at the time of Robert Hennum's death on November 29,
1986.

Throughout their marriage, Robert behaved violently toward JoAnn and

her children. On May 15, 1977, JoAnn was taken to a hospital with
contusions and scratches on her face and a punctured lung caused by a
blow to her ribs inflicted by Robert. On July 2, 1979, Robert attacked
JoAnn by kicking her with steel-toed boots, causing a ruptured spleen.
Surgery to remove the spleen was required. On July 17, 1982, JoAnn
entered the hospital after being hit in the face with a beer bottle by
Robert. She suffered a broken nose and severe lacerations on her face as
a result of the blow. In March of 1985, Robert Hennum was arrested
after another attack on JoAnn and pled guilty to assault.
The trial court also admitted evidence of several prior bad acts in which JoAnn appeared to
be the aggressor. The jury was cautioned to view this evidence as bearing only on the
testimony of the two experts regarding JoAnn's mental state. These incidents involved threats
against the life of Robert Hennum; taking shots at Robert Hennum from inside their trailer
home; kicking Robert and hitting him with her purse when she found him at the house of a
neighbor; and scuffling with a neighbor woman whom JoAnn accused of having an affair
with Robert.

The Shooting
On Thursday evening, November 27, 1986, the Hennum's neighbors, the
Potterfs, stopped at the Hennums' trailer with their children. The
Potterfs' children, Michael, Jamie and Jada, were allowed to sleep
overnight at the trailer.

The following day, Robert left the trailer and went to Freddie's bar
where he bought two 12-packs of beer. Robert and another neighbor
returned to the Hennum trailer to pick up a log splitter and then left with
the three children to split wood and drink beer until about 5:00 p.m.
JoAnn and her six-month-old grandson were left alone at the trailer. The
Potterfs met Robert at Freddie's Bar in the early evening of November
28. They brought the children back to the Hennum trailer to spend a
second night, but Robert stayed at the bar, returning home about 11:30
p.m. He was very drunk.

Upon his return Robert entered the trailer, slamming the door behind
him. JoAnn was standing near the stove and Robert pushed her away,
shouting, "What's for supper, bitch?" Robert saw some oatmeal left over
from breakfast sitting on the stove. He picked up the pan of oatmeal, hit
JoAnn with it on the side of the head and dumped the oatmeal on top of
her. Jada was awakened by the fighting and saw Robert dump the
oatmeal on JoAnn.

Robert then grabbed JoAnn by the hair and began pulling her around the
room showing her some cans of chili and telling her to warm some up
for him. When she began to prepare the chili, he went after her again,
throwing her to the floor and ripping her shirt. Whenever she fell he
would grab her back up by the hair. At one point Robert had her pinned
to the floor with his hands on her throat.

Eventually, Robert went into the living room and while JoAnn was
attempting to cook dinner, he threw a piece of firewood at her. He then
threw a car part at her. JoAnn tried to protect herself by hiding under the
kitchen table. Robert grabbed a rocking chair and threw it at her, causing
the chair to break.

The fighting woke JoAnn's six-month-old grandson who was sleeping

on the couch in the livingroom. The baby started crying. Robert went
into the livingroom and pulled the child up by the arm, yelling at him to
be quiet. JoAnn told him to put the child down and accused him of
beating up on women and children because he could not handle a man.
Robert threw the child back on the couch.

He went back at JoAnn, pulling her around again by the hair. He then
tore one of the doors off the closet and threw it at her. Coats, folding
chairs and three guns fell out of the closet. Robert threw a chair at
JoAnn, broke a cupboard into pieces and threw some more firewood.
Some of the firewood fell on Jada who was sleeping on the floor in the
livingroom. Robert then tore off the rest of JoAnn's shirt and pulled out
more of her hair. Finally, he went into the bathroom and Jada came and
sat down by JoAnn. Jada picked up a piece of the broken rocker and told
JoAnn to hit Robert with it. JoAnn told her no, because if she hit him
with it he would just come back at her.

JoAnn testified that while Robert was in the bathroom she went into the
bedroom and got another shirt. Robert then came out of the bathroom
and went into the bedroom where he fell asleep. JoAnn sat on the floor
for awhile while Jada was feeding the baby a bottle. She saw one of the
guns lying on the floor and noticed a bullet was sticking out of it. JoAnn
testified that she loaded the bullet back into the gun and decided to go in
and scare her husband. She went into the bedroom, closed her eyes, and
fired the gun.

Jada's testimony differs somewhat from JoAnn's. Jada testified that after
Robert Hennum went to bed, JoAnn called her out into the kitchen.
JoAnn told Jada that she was going to go into the bedroom and scare
Robert so he would not beat her anymore. Jada testified that JoAnn
showed her how to load the .30-30 rifle with one of two bullets JoAnn
had retrieved. JoAnn placed the second bullet in her back pocket.
According to Jada, JoAnn then sat in the kitchen and drank "several"
cans of beer. JoAnn got up and went to the bathroom three times while
drinking the beer. Before the last trip to the bathroom, JoAnn told Jada
to lie down on the couch with the baby. JoAnn took the gun with her
when she went to the bathroom the third time. Jada testified that she then
heard the bathroom light switch go on and off, the bedroom light switch
go on and a gun go off.

After the gunshot, JoAnn told Jada they had to contact her parents and
tell them what had happened. JoAnn and Jada with the baby walked to a
neighbor's house where they called Jada's parents. The Potterfs arrived at
the neighbors, picked up JoAnn, Jada and the baby and drove to the
Hennum trailer. They found the trailer in shambles and Robert Hennum
dead of a gunshot wound in the bedroom. The Potterfs collected the
other children who were still sleeping in the trailer and drove to the
Hovde residence where Mrs. Potterf called the police; the Hennums did
not have a functioning telephone. The sheriff arrived with two deputies
at about 5:55 a.m. JoAnn was questioned by the officers for about two
hours and formally arrested at 8:25 a.m.

The sheriff's search of the trailer produced evidence of a disturbance.

The officers found broken chairs, cans of chili, firewood and the closet
door scattered on the floor. They also found pieces of JoAnn's shirt and
clumps of her hair. In the bedroom, Robert Hennum was found dead,
lying on his right side with a massive injury to the left side of his head.

An autopsy was performed on Robert. The wound on the left side of his
head was consistent with a gunshot injury. The bullet was fired from the
.30-30 rifle found in the trailer at a distance of more than 18-24 inches.
When the gun was fired it was about 38 inches above the floor. Robert
had a blood alcohol concentration of .25. The condition of the body
suggested he was lying on his right side at the time of his death.

JoAnn was also examined by a doctor on November 29. She was found
to have multiple abrasions, bruises, and a contusion on the right, back
side of her head. These were recent injuries.
The Trial
At trial JoAnn admitted killing her husband. Her sole defense was that
her actions were taken in self-defense. Defense counsel sought to
introduce evidence of "battered woman syndrome" to assist the trier of
fact in determining the reasonableness of the defendant's fear at the time
she acted and her inability to retreat from the violence. In its March 9,
1987, pretrial order, the court determined JoAnn could offer evidence of
battered woman syndrome only on the condition that she submit to an
adverse medical examination by an expert appointed by the state. In a
memorandum attached to the order the court explained its reasoning:

The court has determined not to preclude, as a matter of law, the

defense or theory of self-defense. However, it is apparent from the
offers of proof made in support of admissibility of the battered women
syndrome, that the state of mind and subjective beliefs of the
defendant prior to and at the time of her act is integral to her self-
defense theory. Therefore, in order to have a fair opportunity to rebut
it, the State should be entitled to have its own expert examine the
defendant. The Order further provides that the defendant's expert, Dr.
Lynn Powers, is permitted to be present and observe the examination
conducted by the state's expert; and the defendant is entitled to
immediate discovery of the findings, opinions and conclusions of the
State's expert, and their factual bases.
(Emphasis in original.) At trial, the defense offered expert testimony
regarding battered woman syndrome. Dr. Lynn Powers described the
profile of a battered woman and also stated that in her expert opinion
JoAnn Hennum was a battered woman suffering from battered woman
syndrome. In her testimony, Dr. Powers referred to JoAnn's feelings on
the night of the shooting, which she had discussed with the defendant. In
particular she testified that JoAnn was afraid that night. The defendant
also took the stand and testified regarding the incidents of that night.

In rebuttal, the state presented the testimony of Dr. Sharon B. Satterfield,

the psychiatrist who had conducted the court-ordered adverse medical
examination of the defendant. Dr. Satterfield testified JoAnn Hennum
did not fit the profile of a woman suffering from battered woman
syndrome, even assuming Dr. Powers' profile was correct. She further
testified JoAnn was emotionally disturbed and was suffering from
alcohol dependence, psychoneurotic depression and an antisocial
personality disorder.

Dr. Satterfield's examination of JoAnn was limited because JoAnn

refused to discuss the night of the shooting. Defense counsel had advised
JoAnn she need not discuss the incidents of the night with Dr.
Satterfield. On rebuttal examination the prosecutor asked Dr. Satterfield,
"Did you attempt to ask to talk to her about the events of November 28th
and 29th of 1986?" Defense counsel objected to this question and the
objection was sustained. Later in rebuttal examination, the prosecutor
asked Dr. Satterfield, "At any time during your interview with the
Defendant did she tell you she was afraid for her life or that of a child on
November 29th, 1986?" Dr. Satterfield answered, "No." There was no
objection by defense counsel to this question. On recross examination,
however, defense counsel clarified for the jury that Dr. Satterfield had
never discussed with the defendant the incidents of that night and
therefore could not know whether the defendant was fearful at that
particular time.

The trial court instructed the jury on intentional murder (Count I),
second degree felony murder (Count II), and the law of self-defense. The
jury found defendant guilty of second degree felony murder, but not
guilty of intentional murder.
II.
This court has never specifically addressed the question of the
admissibility of battered woman syndrome evidence. In dicta, the court
of appeals stated the admission of such evidence in this case was error
since it would not serve to aid the jury. We disagree with this reasoning
and choose to address the issue in order to set forth a standard for the
admissibility of battered woman syndrome evidence.

The court of appeals relied on this court's decision in State v.

Saldana, 324 N.W.2d 227 (Minn. 1982), which held it was error for a
trial court to admit expert testimony as to "rape trauma syndrome" in a
rape case. In Saldana we set forth guidelines for the admission of expert
testimony:

To be admissible, expert testimony must be helpful to the jury in

reaching its decision:

"The basic requirement of Rule 702 is the helpfulness requirement. If

the subject of the testimony is within the knowledge and experience of
a lay jury and the testimony of the expert will not add precision or
depth to the jury's ability to reach conclusions about that subject which
is within their experience, then the testimony does not meet the
helpfulness test."
* * * If the jury is in as good a position to reach a decision as the expert,
expert testimony would be of little assistance to the jury and should not
be admitted.
Saldana, 324 N.W.2d at 229 (citation omitted). This court found
in Saldana that the "scientific evaluation of rape trauma syndrome has
not reached a level of reliability that surpasses the quality of common
sense evaluation present in jury deliberations." Id. at 230.

The majority of states which have examined the admissibility of battered

woman syndrome evidence have held it is admissible. Under standards
similar to our own, other courts have held that battered woman
syndrome is beyond the understanding of the average person and
therefore expert testimony should be allowed. State v. Allery, 101 Wn.2d
591, 597, 682 P.2d 312, 316 (1984); Smith v. State, 247 Ga. 612,
619, 277 S.E.2d 678, 683 (1981); Hawthorne v. State, 408 So.2d 801,
807 (Fla.Dist.Ct.App. 1982); Ibn-Tamas v. United States, 407 A.2d 626,
634-35 (D.C. 1979). These courts have admitted expert testimony on this
subject (1) to dispel the common misconception that a normal or
reasonable person would not remain in such an abusive relationship, (2)
for the specific purpose of bolstering the defendant's position and
lending credibility to her version of the facts, and (3) to show the
reasonableness of the defendant's fear that she was in imminent peril of
death or serious bodily injury. Mather, The Skeleton in the Closet: The
Battered Woman Syndrome, Self-Defense, and Expert Testimony, 39
Mercer L.Rev. 545, 576-77 (1988). We agree expert testimony on this
issue is admissible since it would help to explain a phenomenon not
within the understanding of an ordinary lay person. In addition we find
that this case differs from the rape trauma syndrome in Saldana, since
the theory underlying the battered woman syndrome is beyond the
experimental stage and has gained a substantial enough scientific
acceptance to warrant admissibility.
Ibn-Tamas v. United States, 407 A.2d 626 (D.C.App. 1979); Terry v. State, 467 So.2d
761 (Fla.Dist.Ct.App. 1985); Borders v. State, 433 So.2d 1325 (Fla.Dist.Ct.App.
1983); Hawthorne v. State, 408 So.2d 801 (Fla.Dist.Ct.App. 1982); Strong v. State, 251 Ga.
540, 307 S.E.2d 912 (1983); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); People v.
Minnis, 118 Ill. App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983); State v. Hodges, 239
Kan. 63, 716 P.2d 563 (1986); State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985); State v.
Anaya, 438 A.2d 892 (Me. 1981); May v. State, 460 So.2d 778 (Miss. 1984); State v.
Baker, 120 N.H. 773, 424 A.2d 171 (1980); State v. Kelly, 97 N.J. 178, 478 A.2d
364 (1984); State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (1986); People v. Emick, 103
A.D.2d 643, 481 N.Y.S.2d 552 (1984); People v. Torres, 128 Misc.2d 129, 488 N.Y.S.2d
358 (N.Y. Sup. Ct. 1985); State v. Leidholm, 334 N.W.2d 811 (N.D. 1983); State v.
Thomas, 13 Ohio App.3d 211, 468 N.E.2d 763 (1983); State v. Kelly, 102 Wn.2d 188, 685
P.2d 564 (1984); State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984); State v. Dozier, 163
W. Va. 192, 255 S.E.2d 552 (1979); State v. Felton, 110 Wis.2d 485, 329 N.W.2d
161 (1983). But see, Ibn-Tamas v. United States, 455 A.2d 893 (D.C. 1983); Mullis v.
State, 248 Ga. 338, 282 S.E.2d 334 (1981); People v. White, 90 Ill. App.3d 1067, 46 Ill.Dec.
474, 414 N.E.2d 196 (1980); Fultz v. State, 439 N.E.2d 659 (Ind.Ct.App. 1982); State v.
Martin, 666 S.W.2d 895 (Mo.Ct.App. 1984); People v. Powell, 102 Misc.2d 775, 424
N.Y.S.2d 626 (1980); State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981); Fielder v.
State, 683 S.W.2d 565 (Tex.Ct.App. 1985), jdgmt rev'd by 756 S.W.2d 309 (Tex.Crim.App.
1988); Buhrle v. State, 627 P.2d 1374 (Wyo. 1981).

In allowing the admission of battered woman syndrome evidence, we set

some limits on the use of expert testimony on this subject. We hold that
in future cases expert testimony regarding battered woman syndrome
will be limited to a description of the general syndrome and the
characteristics which are present in an individual suffering from the
syndrome. The expert should not be allowed to testify as to the ultimate
fact that the particular defendant actually suffers from battered woman
syndrome. This determination must be left to the trier of fact. Each side
may present witnesses who may testify to characteristics possessed by
the defendant which are consistent with those found in someone
suffering from battered woman syndrome. This restriction will remove
the need for a compelled adverse medical examination of the defendant.
Since the expert will only be allowed to testify as to the general nature
of battered woman syndrome, neither side need conduct an examination
of the defendant.
III.
In its pretrial order allowing the admission of battered woman syndrome
evidence, the trial court conditioned its ruling on the fact that the
defendant would be compelled to submit to an adverse medical
examination. The trial court reasoned that in order to rebut the testimony
presented by the defense expert who had examined the defendant, the
state must have an opportunity to conduct a similar examination. The
trial court set forth the following conditions for the examination:

a. Examination shall be conducted by a qualified psychiatrist, or clinical

psychologist, or physician experienced in the field of mental conditions
selected by the State.
b. The defendant's expert, Dr. Lynn Powers, is permitted to be present
and observe the examination.
c. The examination shall be arranged at the earliest opportunity
through the good faith cooperation of counsel.
d. A report of the State's expert setting forth all relevant findings,
opinions, conclusions, and their factual bases shall be prepared and a
copy provided to the defendant forthwith.
The court of appeals relied on this court's decision in State v. Olson, 274
Minn. 225, 143 N.W.2d 69 (1966), to preclude the compelled adverse
examination of the defendant. In Olson, we were asked to prohibit the
compelled psychological examination of a defendant pleading not guilty
by reason of insanity. At the time of the decision there was no rule in
existence authorizing such an examination and we addressed the
question of whether it was "within the inherent power of the district
court to order a psychiatric examination to determine criminal
responsibility where the statutes of this state are silent as to any
procedure concerning it." Id. at 226, 143 N.W.2d at 71. We left the
decision to the legislature, stating:
[S]ubstantial questions as to the nature and scope of such an
examination would be best solved by a legislative enactment setting
down certain guidelines rather than by the courts on an ad hoc basis.
Id. at 231, 143 N.W.2d at 73-74. In the absence of such a legislative
enactment a court has no legal basis for ordering such an
examination. Id. at 233, 143 N.W.2d at 75.
A rule was later adopted to give courts the authority to order a medical examination of a
defendant under certain circumstances. Minn. R.Crim.P. 20.02 provides:

The court having trial jurisdiction over the offense charged may order a mental examination
of the defendant when the defense has notified the prosecuting attorney pursuant to Rule
9.02, subd. 1(3)(a) of an intention to assert a defense of mental illness or deficiency, when
the defendant in a misdemeanor case pleads not guilty by reason of mental illness or
mental deficiency, or when at the trial of the case, the defendant offers evidence of such
mental condition.

The court of appeals held that, absent a rule of criminal procedure

allowing the compelled adverse examination of a defendant for purposes
of determining whether she suffered from battered woman syndrome,
the trial court had no authority to order such an
examination. Hennum, 428 N.W.2d 859, 868-69. We agree. The trial
court had no authority to compel an adverse medical examination of the
defendant. We affirm the rationale behind our decision in Olson that
questions as to the nature and scope of adverse medical examinations are
best answered by legislative enactment, rather than by the courts on an
ad hoc basis. Olson, 274 Minn. at 231, 143 N.W.2d at 73-74. However,
we also note that allowing the defense to produce expert testimony based
on a medical examination of a defendant without providing the state an
opportunity to conduct a similar examination denies the state a fair
chance to rebut the expert testimony of the defense. Our decision today
will prevent such a situation from arising with regard to expert testimony
on battered woman syndrome. In future battered woman syndrome
cases, expert medical examination of a defendant will not be necessary
since we hold today that expert testimony as to the ultimate fact of
whether a particular defendant suffers from the syndrome will be
inadmissible. It will be up to the trier of fact to make that finding or
conclusion. Therefore, no compelled adverse medical examination,
which could possibly jeopardize a defendant's constitutional rights, will
be required to insure fairness for the state.
In 1971 the legislature enacted Chapter 250 providing the supreme court appoint an advisory
committee to assist in preparing rules of practice and procedure in criminal actions. In 1974
it enacted Chapter 390 to provide that the new rules of criminal procedure would (with
certain exceptions) supersede conflicting statutory law. Such rules have been adopted and
amended from time to time. We refer to the Supreme Court Advisory Committee on Rules of
Criminal Procedure for their consideration the question of whether a rule allowing adverse
medical examinations in cases such as this should be adopted and contain guidelines similar
to those set forth in Minn.R.Crim.P. 20.02.

IV.
The court of appeals held defendant's constitutional right to remain silent
was violated as a result of Dr. Satterfield's testimony relating her
discussions with the defendant. Hennum, 428 N.W.2d at 868. We find
no constitutional violation. At the time of Dr. Satterfield's examination,
the defendant had already voluntarily submitted to an examination by
her own expert, Dr. Powers. During this examination the defendant
relayed information regarding the events of the night in question, and
Dr. Powers subsequently testified to those facts. In addition, the
defendant had provided a lengthy statement to the police following her
arrest and chose to take the stand herself and testify as to the events of
that night. As a result of these actions the defendant waived any right to
remain silent, and under these circumstances Dr. Satterfield could
testify.
V.
The court of appeals chose not to address the issues of prosecutorial
misconduct and sentencing raised by the defendant on the grounds they
were made moot by the court's decision to remand for a new trial. Since
we reverse the court of appeals and deny the defendant a new trial, these
issues must now be addressed.
We affirm the court of appeals on the other three issues addressed in its decision: (1) The
trial court correctly instructed the jury on the law of self-defense; (2) The trial court did not
abuse its discretion in allowing testimony of prior bad acts of the defendant; (3) Defendant's
failure to request a jury instruction on a claimed lesser included offense waives that issue on
appeal.

We find no merit in defendant's argument that prosecutorial misconduct

occurred during the discovery process and on closing argument before
the jury. We do, however, agree with the defendant that the mitigating
factors present in this case justify a downward departure from the
presumptive guideline sentence. The presumptive sentence in this case
was 105 (102-108) months. The presentence investigation report
recommended a downward departure to 54 months. The trial court chose
to sentence defendant to 102 months, the minimum presumptive
sentence. We believe the presentence investigation recommendation of
54 months should be followed in this case.

Minnesota Sentencing Guidelines II.D. 2.a. lists several mitigating

factors justifying a downward departure:

(1) The victim was an aggressor in the incident.

(2) The offender played a minor or passive role in the crime or

participated under circumstances of coercion or duress.
(3) The offender, because of physical or mental impairment, lacked
substantial capacity for judgment when the offense was committed.
The voluntary use of intoxicants (drugs or alcohol) does not fall within
the purview of this factor.
(4) Other substantial grounds exist which tend to excuse or mitigate the
offender's culpability, although not amounting to a defense.
In the present case, the victim physically abused defendant on the night
of the incident. In addition, there was substantial evidence that the
victim had subjected defendant to severe physical and mental abuse
throughout their relationship. While the jury was free to reject
defendant's claim of legal self-defense, we believe that "substantial
grounds exist which tend to excuse or mitigate [defendant's] culpability,
although not amounting to a defense."

We reaffirm our prior statement that it is a "rare" case which merits

reversal of the trial court's discretionary refusal to depart. State v.
Kindem, 313 N.W.2d 6, 7 (Minn. 1981). In only one case have we
reduced a trial court's sentence to the presumptive sentence because the
defendant "lacked substantial capacity for judgment when the offense
was committed," due to his mental impairment. State v. Wall, 343
N.W.2d 22, 25-26 (Minn. 1984). The present case also qualifies as one
of those rare cases in which we are justified in interfering with the trial
court's decision not to downwardly depart. As such, we reduce the
defendant's sentence to 54 months as recommended by the presentence
investigation report.

AFFIRMED IN PART; REVERSED IN PART; SENTENCE

MODIFIED.