MD CJIC 8.13(G). Self-Defense: Battered Spouse, Child, Cohabitant Syndrome

Maryland Criminal Jury Instructions and Commentary, Third Edition
Chapter 8 DEFENSES
L. Self-Defense

§ 8.13(G). Self-Defense: Battered Spouse, Child, Cohabitant Syndrome

I have instructed you on the general requirements of self-defense. In order to justify (insert specific crime(s) to which the defense applies) on the basis of self-defense (insert name of defendant) must have: (1) actually believed that [she] [he] was in imminent or immediate danger of [bodily harm] [serious bodily harm or death] from [her] [his] assailant or potential assailant; (2) had reasonable grounds for that belief; (3) not used any more force than was reasonably necessary to defend [himself] [herself] from the threatened or actual harm; and (4) not been the aggressor of the attack [unless (insert name of defendant) was the aggressor using [deadly force] [non-deadly force] and withdrew from the fight] [unless (insert name of defendant) started the fight with non-deadly force and (insert name of victim) then escalated the fight to the deadly force level].

[You have also heard evidence that the defendant was a victim of repeated physical and psychological abuse that occurred during (her) (his) (childhood) (in past relationships).]

“[You also heard testimony from an expert witness that a person who is a victim of repeated physical and psychological abuse by a (insert as applicable): [spouse] [former spouse] [child] [cohabitant] [former cohabitant] and, also was a victim of [past physical and psychological abuse] [in childhood] [in other past relationships] may suffer from a psychological condition called “Battered (Spouse) (Woman) (Child) (Cohabitant) Syndrome”.]

[Also, you heard expert testimony that the defendant exhibits the characteristics consistent with “Battered [Spouse] [Woman] [Cohabitant] Syndrome.”]

You may consider this evidence for the purpose of explaining ’s (insert name of defendant) motive or state of mind, or both, and [her] [his] beliefs and perceptions at the time of the commission of the alleged offense in order to determine whether the requirements of self-defense exist. Specifically, you may consider this evidence in determining the degree to which it:

(1) explains whether (insert name of defendant) actually believed in the necessity to use deadly force to defend [herself] [himself] against imminent or immediate danger of serious bodily harm or death;
(2) sheds light on the reasonableness of ’s (insert name of defendant) belief that [she] [he] was in imminent or immediate danger of serious physical harm or death. In assessing reasonableness, the issue is whether a reasonable person in the defendant’s circumstances would have perceived or seen a threat of serious physical harm or death;
(3) helps explain the reasonableness of the force used by (insert name of defendant) in response to the perceived threat;
(4) [To be used only when the defendant has a duty to retreat before using deadly force: Before a person can use deadly force based on self-defense, [she] [he] has a duty to make a reasonable effort to retreat or to avoid the danger if [she] [he] could do so safely. If there is no safe place available, [she] [he] is not required to retreat before resorting to the use of deadly force. You may consider the evidence that (insert name of defendant) suffered from battered [spouse] [woman] [child] syndrome in determining the reasonableness of [his] [her] belief that there was no safe place of retreat available or that [he] [she] was unable to retreat to avoid the danger]; and
(5) [To be used only if the defendant testifies: You may consider the evidence that the defendant suffered from battered [spouse] [woman] [child] syndrome in evaluating the believability or credibility of the defendant’s testimony.]
[Evidence of battered [spouse] [woman] [child] syndrome is not in itself a defense to the crime of (specify crime(s) to which the defense applies). It has been admitted to assist you in determining whether the requirements of self-defense are present in this case.]

Comment on Self-Defense Instructions: 8.13(A)–(G)

(A) Use of Instructions

When the defendant is charged with criminal homicide and asserts a defense of self-defense, Instructions §§ 8.13(A), Self-Defense: General Instruction, and 8.13(D), Self-Defense: Determining the Aggressor should always be given. Certain instructions, such as § 8.13(B), Self-Defense: Deadly Force and Duty to Retreat, are designed for use when the defendant has used deadly force, while others, such as § 8.13(C), Self-Defense: Non-Deadly Force, should be used in situations when the defendant has used non-deadly force. Sections 8.13(E), Self-Defense: No Duty to Retreat—“Castle Doctrine” Exception, 8.13(F), Self-Defense: Evidence Relating to the Victim’s Prior Acts of Violence, Threats, and Violent or Dangerous Character, and 8.13(G) Self-Defense: Battered Spouse, Child, Cohabitant Syndrome. In 2004, the Maryland Court of Appeals held that the battered spouse syndrome, as recognized in Maryland, applies as well to battered children. See State v. Smullen, 380 Md. 233, 268, 844 A.2d 429, 449 (2004). Since 1996, when the Maryland statute was enacted, an extensive body of scientific and clinical knowledge about the dynamics of domestic violence and traumatic stress reaction has been published. For a detailed discussion of Maryland’s battered spouse syndrome statute and recent case law developments, see Comment, Section (I), infra.

In addition to a “perfect” self-defense claim, a defendant may also be able to claim “imperfect” self-defense if the defendant actually subjectively believed that he was in imminent or immediate danger of bodily harm or death or serious bodily harm, but that his belief is objectively unreasonable or he used unreasonably excessive force in responding to the perceived threat. State v. Marr, 362 Md. 467, 473, 765 A.2d 645, 648 (2001). If imperfect self-defense is a consideration, see Comment to § 5.53(C), Rape Offenses—Second Degree Rape: Victim Under Fourteen Years of Age and Person Performing Act Is at Least Four Years Older than Victim, supra. It should be noted that, unlike perfect self-defense, imperfect self-defense does not constitute a justification for the killing and does not warrant an acquittal. Otherwise, the doctrines of perfect and imperfect self-defense are similar. As was said in Burch v. State, 346 Md. 253, 283, 696 A.2d 443, 458 (1997), and confirmed in Marr, 362 Md. at 474, 765 A.2d at 648, “the only substantive difference between the two doctrines, other than their consequences, however, is that, in perfect self-defense, the defendant’s belief that he was in immediate danger of death of serious bodily harm or that the force he used was necessary must be objectively reasonable. In all other respects, the elements of the two doctrines are the same.”

When performing the above analysis to distinguish perfect from imperfect self-defense, however, it is important to apply the standard for objectively reasonable behavior as articulated by the Court of Appeals of Maryland. This “objective” standard incorporates the individual experience and background of the defendant in the determination of reasonableness. “The objective standard does not require the jury to ignore the defendant’s perceptions in determining the reasonableness of his or her conduct. In making that determination, the facts or circumstances must be taken as perceived by the defendant, even if they were not the true facts or circumstances, so long as a reasonable person in the defendant’s position could also reasonably perceive the facts or circumstances in that way.” State v. Marr, 362 Md. 467 at 480, 765 A.2d 645 (2001) (emphasis in original).

As further clarified in subsequent cases, this has special significance in cases involving domestic violence: “A person who has been subjected to [domestic violence] may well be sensitive to non-verbal signals or code words that have proved threatening in the past to that victim but which someone else, not having that experience, would not perceive to be threatening. The reasonableness of an asserted fear emanating from that kind of conduct or communication must be viewed from the perspective of the particular victim. Any special vulnerability or dependence by the victim, by virtue of physical, mental, or emotional condition or impairment, also must be taken into account.” Katsenelenbogen v. Katsenelenbogen, 365 Md. 122, 775 A.2d 1249 (2001) (emphasis added). So while the courts reiterate that this is an objective standard, this standard is highly specific to the individual and must take into account the life experiences of the defendant in determining the reasonableness of his or her actions. See Comment, Section (I), to Instruction § 8.13(G), Self-Defense: Battered Spouse, Child, Cohabitant Syndrome (Suggested Instruction), infra.

(B) In General

The defense of self-defense excuses conduct that would normally be considered criminal in nature. See, e.g., Dykes v. State, 319 Md. 206, 210–11, 571 A.2d 1251, 1254 (1990); Thomas v. State, 9 Md. App. 94, 96, 262 A.2d 797, 799 (1970); Whitehead v. State, 9 Md. App. 7, 262 A.2d 316 (1970). Self-defense may be asserted in all assaultive offenses from simple assault to first-degree murder. See, e.g., Jacobs v. State, 32 Md. App. 509, 512, 363 A.2d 257, 259 (1976). The elements of self-defense are that:

(1) the accused must have had reasonable grounds to believe in apparent imminent or immediate danger of death or serious bodily harm from the assailant or potential assailant; (2) the accused must have in fact believed in this danger; (3) the accused must not have been the aggressor or provoked the conflict; and (4) the force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded.

Roach v. State, 358 Md. 418, 429, 749 A.2d 787, 793 (2000) (quoting State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759, 761 (1984)); see also Jones v. State, 357 Md. 408, 422, 745 A.2d 396, 403 (2000).

A defendant who is attacked by an aggressor using deadly force may respond with deadly force and still claim self-defense against someone who intervenes on behalf of the aggressor, even if the intervener does not use deadly force. See Corbin v. State, 94 Md. App. 21, 30–31, 614 A.2d 1329, 1333 (1992). The Court of Appeals implicitly adopted the doctrine set forth in Corbin v. State in Jones v. State, 357 Md. at 423–24, 745 A.2d at 404, and further stated that when a defendant is attacked by multiple aggressors, he does not have to distinguish which particular aggressor is using deadly force, but rather may defend himself using deadly force against any and all the aggressors if any one of the aggressors is using deadly force or the aggressors as a whole are employing deadly force. Id. at 423–24, 745 A.2d at 404. In Corbin v. State, the defendant testified that the defendant’s husband used deadly force during their encounter (by beating and kicking the defendant) and that the victim came to the husband’s assistance by also kicking the defendant, but it was conceded that the victim was not using deadly force against the defendant.

Force may not be used to vindicate an attack after it has occurred, but rather only to repel an attack while it is taking place. See Sydnor v. State, 133 Md. App. 173, 754 A.2d 1064 (2000); see also Souffie v. State, 50 Md. App. 547, 439 A.2d 1127 (1982). In Souffie v. State, the defendant was convicted, inter alia, of second-degree murder. Although there was some dispute at trial, the defendant had claimed that she was entitled to a self-defense instruction because she had killed the victim after he had raped her. The Court of Special Appeals held that the defendant was not entitled to a self-defense instruction, because even assuming the victim had raped the defendant, the rape had been completed, and thus the defendant was no longer in imminent or immediate danger of bodily harm, and therefore, she did not have a valid self-defense claim. The Court of Special Appeals has also held that a self-defense is not available as a matter of law when the defendant is charged with felony murder. Sutton v. State, 139 Md. App. 412, 776 A.2d 47 (2001) (citing Roach v. State, 358 Md. 418, 749 A.2d 787 (2000), cert. denied, 366 Md. 249, 783 A.2d 223 (2001); see also Nicholson v. State, 239 Md. App. 228, 233, 196 A.3d 480, 482 (2018) (when a jury returns a not guilty verdict as to first-degree and second-degree murder, but a defendant is convicted of second-degree felony murder, any error with respect to a self-defense instruction is harmless beyond a reasonable doubt because self-defense is not applicable to felony murder under Maryland law).

The Court of Special Appeals applied the same logic in Sydnor v. State, 133 Md. App. at 186, 754 A.2d at 1071, when it held that the trial court was completely within its right to conclude that the defendant did not have a valid self-defense claim when the evidence indicated that the defendant, who was robbed by the victim, proceeded to shoot the unarmed victim four times after disarming the victim. See also Holt v. State, 236 Md. App. 604, 182 A.3d 322 (2018) (defendant not entitled to imperfect self-defense instruction because he failed to present evidence he subjectively believed he was in imminent danger; defendant and a group learned that the victim and another group were looking for them and wanted to fight, and in response, defendant marshaled forces to engage the other group).

In Malaska v. State, 216 Md. App. 492, 88 A.3d 805 (2014), cert. denied, 439 Md. 696, 98 A.3d 234 (2014), the defendant appealed his conviction for involuntary manslaughter, arguing, inter alia, that the trial court erred in not giving his requested jury instruction on transferred intent self-defense and defense of others. Id. at 499, 88 A.3d at 809. The defendant was convicted of involuntary manslaughter for shooting a neighbor during a neighborhood brawl. Id. at 500, 88 A.3d at 809. The defendant argued that he missed the neighbor that he intended to shoot and killed the victim instead. Id. At the close of evidence, the defendant requested instructions of defense of others and of transferred intent self-defense, which would inform the jury that “an instruction stating that intent under self-defense can transfer to another just as the intent to kill can transfer from the intended victim to an innocent bystander.” Id. at 504, 88 A.3d at 8211. The trial court declined to give the requested instruction. Id.

The Court of Appeals held that in light of the self-defense instructions actually given, the trial court did not abuse its discretion by declining to give the requested instruction. Id. at 522, 88 A.3d at 822. The Court found that the requested instruction placed too much emphasis on the actus reus rather than the mens rea. Id. at 519, 88 A.3d at 820. Pursuant to Poe v. State, 341 Md. 523, 671 A.2d 501 (1996), the trial court must determine whether the defendant had the requisite mens rea for self-defense at the time the fatal shot was fired. Id. The self-defense instructions already provided to the jury fully addressed this, and thus the trial court did not abuse its discretion by not giving a transferred intent self-defense instruction. 216 Md. App. at 522, 88 A.3d at 822. The Court also found that the issue of the defense of others jury instruction had not been properly preserved for appellate review and plain error review did not apply. Id. at 524–26, 88 A.3d at 823–24.

When an illegal arrest is warrantless, the individual may resist with reasonable force. Rodgers v. State, 32 Md. App. 90, 359 A.2d 122 (1976), aff’d, 280 Md. 406, 373 A.2d 944 (1977); see also State v. Wiegmann, 350 Md. 585, 604 (1998) (upholding right to resist an unlawful warrantless arrest despite trend among other states to abolish the right). For further discussion, see Comment to § 7.65(A)–(C), Resisting Arrest, supra.

(C) Burden of Proof

The burden of proof has been substantially modified by Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881 (1975), and Evans v. State, 28 Md. App. 640, 349 A.2d 300 (1975), aff’d, 278 Md. 197, 362 A.2d 629 (1976). In Mullaney, the Supreme Court struck down a state statute that required the defendant to establish, by a preponderance of the evidence, the existence of facts that could reduce his murder charge to manslaughter. The Mullaney Court held that to comport with the Due Process Clause, the government must prove the absence of mitigating circumstances beyond a reasonable doubt. Id. at 704, 95 S. Ct. at 1892. Thus, a self-defense jury instruction may not place the burden of proof on the defendant. Banks v. State, 92 Md. App. 422, 441 (1992); see also Comment (B) to § 1.03, The Impact of Evans v. State: Burdens of Proof, Presumptions and Inferences, supra.

The defendant does, however, have the burden of initially raising the issue of self-defense by producing “some evidence” of a self-defense claim. See, e.g., Dykes v. State, 319 Md. at 216, 571 A.2d at 1251; Briggs v. State, 90 Md. App. 60, 74, 599 A.2d 1221, 1227–28 (1992). That burden is met when “there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self-defense …” Dykes v. State, 319 Md. at 217, 571 A.2d at 1257. A jury issue of self-defense may be generated by either the defendant’s or State’s evidence. Id. Once generated, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. Id.; see also Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980); Corbin v. State, 94 Md. App. 21, 614 A.2d 1329 (1992); Finnegan v. State, 33 Md. App. 251, 364 A.2d 124, cert. denied, 279 Md. 682 (1976); Jacobs v. State, 32 Md. App. 509, 363 A.2d 257 (1976).

There has been considerable discussion about how much evidence amounts to “some evidence.” A defendant’s uncorroborated testimony is sufficient to generate the issue of self-defense. In Redcross v. State, 121 Md. App. 320, 708 A.2d 1154 (1998), the Court of Special Appeals held that the issue of whether the defendant was aware that there was a safe retreat was generated by the defendant’s own testimony that he was not aware of a safe retreat even though several other witnesses testified to the contrary. Id. at 332–33, 708 A.2d at 1160. In Watkins v. State, the Court held that the defendant’s testimony regarding the altercation between the victim and himself was sufficient evidence to require a jury instruction on the defendant’s right to self-defense, even if the defendant started the fight on a non-deadly level, providing the victim escalated the fight to a deadly level. Id. at 139, 555 A.2d at 1088.

Similarly, in Dykes v. State, the defendant was charged with committing a murder to which there were no eyewitnesses. The details of the homicide came solely from the defendant, who offered three different versions of the events leading up to the homicide. Despite the sparse and conflicting evidence, the Dykes Court found that the defendant had established a factual basis sufficient to support his requested jury instruction on self-defense. 319 Md. at 222–23, 571 A.2d at 1259–60. In this regard, the Court offered the following standard for “some evidence”:

Some evidence … calls for no more than what it says—“some,” as the word is understood in common, everyday usage. It need not rise to the level of “beyond reasonable doubt” or “clear and convincing” or “preponderance.” The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self-defense, the defendant has met his burden.

Id. at 216–17, 571 A.2d at 1257.

The decision of Briggs v. State illustrates what kind of evidence will fail to meet the some evidence requirement. In Briggs, the trial court refused to grant the defendant’s request for a self-defense instruction because he failed to generate “some evidence” to put the issue before the jury. Specifically, the defendant did not assert at trial that he assaulted the victims (police officers) in self-defense, but that he had never assaulted them at all. Therefore, there was no evidence produced by either side that generated an issue of self-defense. 90 Md. App. at 60, 599 A.2d at 1221.

In Johnson v. State, 223 Md. App. 128, 150, 115 A.3d 668, 681 (2015), the Court of Special Appeals held that the trial court did not err when it declined to give a jury instruction on self-defense. The germophobic defendant was convicted of involuntary manslaughter when she struck the victim with her fist in his face after he inadvertently spit on her face. 223 Md. App. at 133, 115 A.3d at 671. The victim fell to the ground and hit his head on the concrete road. He was taken to the hospital where he soon thereafter died of his head injuries. The defendant argued that she was entitled to a jury instruction on self-defense because the victim was actually the aggressor and that the defendant believed, as stated in her testimony, that “she was in danger of bodily harm via infection or disease.” 223 Md. App. at 147, 115 A.3d at 679. The defendant’s testimony was corroborated by the fact that she got an HIV test after the victim had spat on her. The State responded by arguing that because the defendant failed to object at trial and actually affirmatively rejected the court’s offer to consider a self-defense jury instruction, the defendant waived the issue for appellate review. 223 Md. App. at 148, 115 A.3d at 679. In addition, the State argued that the evidence was not sufficient to generate a jury instruction on self-defense because the defendant admitted to the police and at trial that the victim’s act of spitting on her was accidental and that the defendant did not produce evidence to show she was in immediate or imminent danger of bodily harm. The Court of Special Appeals agreed with the State by holding that the defendant waived her right to review the trial court’s error when she failed to request a jury instruction on self-defense and when defense counsel expressly told the trial court that the defendant was not asserting self-defense. 223 Md. App. at 148, 115 A.3d at 679–80. Lastly, the Court stated that even if the defendant had preserved the issue, the evidence was not sufficient to generate a self-defense instruction. In order to obtain a jury instruction on self-defense, there must be some evidence to show that the force used must have not been unreasonable and excessive. See Haile v. State, 431 Md. 448, 472, 66 A.3d 600, 614 (2013). In Johnson, it is apparent that the defendant used unreasonable and excessive force by striking the victim after he spit on her. There is no evidence that the victim acted aggressively toward the defendant or that the victim purposely spat on the defendant because as stated by the defendant to police and through her testimony, the victim did not purposely spit on her. 223 Md. App. at 149–50, 115 A.3d at 680. Therefore, the trial court did not err in failing to instruct the jury on self-defense.

(D) Deadly v. Non-deadly Force

A valid self-defense claim requires that: (1) the defendant actually subjectively believe that he was in imminent or immediate danger of bodily harm or serious bodily harm or death, and (2) that a trier of fact determines, considering the circumstances that the defendant was under at the time of the incident, the defendant’s belief that he was in imminent or immediate danger of bodily harm or serious bodily harm or death was reasonable. See Thomas v. State, 143 Md. App. 97, 113, 792 A.2d 368, 377 (2002). The law of self-defense and defense of others (see Instructions § 8.05, Defense of Others, and § 5.53(D), Voluntary Manslaughter: Imperfect Defense of Others, supra) makes a distinction between “deadly” force—that which is intended or likely to cause death or great bodily harm—and “non-deadly” force—that which is neither intended nor likely to cause death or great bodily harm. A person may use non-deadly force if he reasonably believes another is about to inflict unlawful bodily harm on him. If the person believes that his attacker is about to inflict death or serious bodily harm, however, he may use deadly force on the assailant, provided the defendant’s belief is reasonable based on what a reasonably prudent person would do under similar circumstances. See Dykes v. State, 319 Md. at 206, 571 A.2d at 1251; Brown v. State, 90 Md. App. 220, 600 A.2d 1126, cert. denied, 326 Md. 661, 607 A.2d 6 (1992); Shuck v. State, 29 Md. App. 33, 349 A.2d 378; see also Perry v. State, 234 Md. 48, 197 A.2d 833 (1964); Guerriero v. State, 213 Md. 545, 132 A.2d 466 (1957); Jones v. State, 13 Md. App. 677, 284 A.2d 635 (1971). Stated in another way:

Deadly force is unreasonable if nondeadly force is obviously sufficient to avert the threatened harm, but may be entirely reasonable under other circumstances. And even nondeadly force is unreasonable if it is obviously and substantially in excess of what is needed for the particular defense.

R. Perkins, Criminal Law 1113 (3d ed. 1982); see also State v. Martin, 329 Md. 351, 619 A.2d 992 (1993); Thomas v. State, 9 Md. App. 94, 262 A.2d 797 (1970); Cummings v. State, 7 Md. App. 687, 256 A.2d 894 (1969). In determining whether the defendant’s belief was reasonable, the trier of fact should consider the circumstances that the defendant was under at the time of the incident and what effect those circumstances would have had on a reasonably prudent person. State v. Marr, 362 Md. 467, 476, 765 A.2d 645, 650 (2001) (citing Rajnic v. State, 106 Md. App. 286, 296, 664 A.2d 432, 437 (1995).

An unarmed attack by an assailant can be considered dangerous enough to place a defendant in imminent or immediate danger of death or serious bodily harm. In determining whether an unarmed attack constitutes an attack with deadly force, the trier of fact should consider facts such as “the respective sizes and sex of the assailant(s) and defendant … the presence of multiple assailants … and the especially violent nature of the unarmed attack. Past violent conduct of the assailant known by the defendant is also relevant in assessing what the defendant reasonably believed was the quantum of risk to him.” Lambert v. State, 70 Md. App. 83, 519 A.2d 1340 (1987).

(E) Determining the Aggressor

A defendant who is found to be the aggressor by the trier of fact forfeits any claim of self-defense, including not only a “perfect” self-defense, but also an “imperfect” claim of self-defense. See Cunningham v. State, 58 Md. App. 249, 257, 473 A.2d 40, 44 (1984), cert. denied, 300 Md. 316, 477 A.2d 1195 (1984); see also Simmons v. State, 66 Md. App. 629, 632, 505 A.2d 577 (1986), rev’d on other grounds, 313 Md. 33, 542 A.2d 1258 (1988); Belton v. State, 253 Md. App. 403, 447–448, 268 A.3d 877 (2021) (dicta); Instruction § 5.53(C), Voluntary Manslaughter: Imperfect Self-Defense, supra. In Cunningham v. State, the defendant, resentful of having his Moped taken earlier in the day by the victim, armed himself and went looking for the victim. As he approached the victim, the defendant drew a gun; the victim, who was leaning on the Moped, “put his hands in his pants.” From this action, the defendant concluded that the victim “was grabbing for something” and consequently shot him. The Court of Special Appeals held that, because there was incontrovertible evidence that the defendant was the aggressor of the attack in that he sought out the victim and the confrontation, the defendant had no claim of self-defense, either perfect of imperfect, because both require that the defendant not be the aggressor of the attack.

In Dashiell v. State, 214 Md. App. 684, 78 A.3d 916 (2013), the defendant appealed a conviction of involuntary manslaughter, arguing, inter alia, that the circuit court erred in instructing the jury that self-defense is not a defense to affray. Id. at 688, 78 A.3d at 918. The Court of Special Appeals reversed the conviction, holding that the trial court erred in not instructing the jury, and that that error was not harmless. Id. At a family barbecue the defendant got in a fistfight with the victim, Justin Carter, which resulted in the victim’s death from head trauma. Id. at 688–89, 78 A.3d at 918–19. What began as a “playful” wrestling match escalated into a fistfight. Id. at 689, 78 A.3d at 919. After the fight was broken up, a second confrontation ensued and, then, in a final third confrontation, Carter kicked the defendant’s parked moped and walked toward the defendant and took the first swing. Id. Several punches later, the victim fell unconscious and died from blows he had received to his head. Id.

The State argued that while self-defense is generally a defense to affray, the defendant had conceded that the fight was mutual and, therefore, could not claim self-defense. Id. at 691, 78 A.3d at 920. The Court held the only support for the State’s claim was an assertion made by defense counsel during opening statement and, the Court noted, opening statements are not evidence. Id. at 694, 78 A.3d at 921–22. Also, the trial judge, during a bench conference just before the jury was instructed, declared that self-defense was “generated by the evidence.” Id. at 694, 78 A.3d at 922. Citing Atkins v. State, 421 Md. 434, 443, 26 A.3d 979, 983 (2011), the Court concluded that whether there was an agreement to fight or the accused provoked the fight is a question of fact, falling within the province of the fact finder. 214 Md. App. at 695, 78 A.3d at 922.

A defendant who is considered the “initial aggressor” may still claim self-defense if the victim counterattacked with deadly force. Watkins v. State, 79 Md. App. 136, 555 A.2d 1087 (1989). In situations such as this, when the victim counterattacks with deadly force, the defendant who initiated the attack becomes the defender. Tipton v. State, 1 Md. App. 556, 232 A.2d 289 (1967). As the court stated in Tipton v. State:

[W]e think reason and logic would support the proposition that where one attacks another in a manner not calculated to kill or to do serious bodily harm, and the defender counterattacks, using excessive and unreasonable force in a manner reasonably calculated to cause death or great bodily harm, then the original attacker becomes the defender. If the original assailant is unable to retreat to a place of safety or there is no place of safety available, then he may use whatever force is necessary to repel the counterattack of the original defender.

Id. at 562, 232 A.2d at 292. In such cases, the defendant still has a duty to make a reasonable effort to retreat when the victim counterattacks with deadly force, if he can do so safely. Dawson v. State, 40 Md. App. 640, 395 A.2d 160 (1978).

A defendant who is the initial aggressor, even if using deadly force, may still claim self-defense if he effectively withdraws from the confrontation and makes his withdrawal clear to the other combatant. See Cunningham v. State, 58 Md. App. 249, 255, 473 A.2d 40, 43 (1984). In Cunningham, the Court noted that in situations in which the defendant initiates the confrontation, the only way he may claim self-defense is if the defendant attacked with non-deadly force and the victim counterattacked with deadly force or if the defendant attacks but then effectively withdraws from the confrontation and makes it clear to the other combatant that he is withdrawing from the conflict. Id. As Perkins and Boyce note, however, in some situations a defendant holding a deadly weapon in his hand, available for instant use, may frequently find it impossible to convey effective withdrawal to an adversary. “Even a plain statement in words may reasonably be interpreted by the other to be merely a ruse, intended for no purpose other than to gain an advantage in the fight.” Perkins & Boyce, Criminal Law 1129–30 (3d ed. 1982). Maryland courts have no had occasion to consider whether certain situations may render it impossible for a defendant to effectively withdraw from a conflict.

(F) Possession of Weapon by Defendant

The fact that a defendant armed himself prior to an altercation does not preclude a claim of self-defense; the key question is still whether the defendant was the aggressor in the altercation. Gunther v. State, 228 Md. 404, 409, 179 A.2d 880, 882 (1962); see also Perry v. State, 234 Md. 48, 52, 197 A.2d 833, 836 (1964); Crawford v. State, 231 Md. 354, 361, 190 A.2d 538, 542 (1964). The defendant may claim self-defense if he armed himself in anticipation of a potential attack, but did not seek out the victim; but he may not claim self-defense if he sought out the victim. Crawford v. State, 231 Md. at 361, 190 A.2d at 542. The Court of Special Appeals reaffirmed this principle in Rajnic v. State, 106 Md. App. 286, 664 A.2d 432 (1995). In Rajnic, the Court, relying on Gunther v. State, held that the defendant was entitled to a new trial, because it found that the trial court failed to instruct the jury that a defendant is not precluded from claiming self-defense simply because he armed himself in advance of the encounter with the victim. The defendant in Rajnic v. State shot and killed three individuals who were attending a party at his residence. Apparently, the victims had threatened the defendant. The defendant, in response to their threats, removed himself to his bedroom and loaded his pistol and shotgun in fearful expectation of an imminent confrontation. All three victims were killed when the defendant opened fire after the victims barged into the defendant’s room. In remanding for a new trial, the Court noted, however, that Gunther v. State did not convey any general right to arm oneself with a gun, but rather only stood for the proposition that a defendant is not barred from claiming self-defense solely because he armed himself in advance of the conflict. The Court added that Gunther v. State could not be read as a defense to any statutory prohibitions outlawing the carrying of weapons. Id.

In Hemingway v. State, 76 Md. App. 127, 543 A.2d 879 (1988), however, the Court of Special Appeals ruled that the defendant was not entitled to a jury instruction stating that he was not precluded from claiming self-defense merely because he armed himself in advance of the conflict. In Hemingway, the defendant testified that he and a companion were sitting in the defendant’s parked automobile when they received violent threats from two unknown individuals who were also parked nearby. According to the defendant, these individuals then exited their vehicle and approached the defendant and his companion, causing the defendant to fear an imminent attack. At this point, the defendant placed a pistol in his back pocket, and exited his own vehicle to meet the approaching persons. Claiming that he initially brandished his gun as a warning, the defendant apparently panicked and shot one of the approaching persons after the approaching person charged at the defendant while throwing a kick. The Court held that the defendant was not entitled to a jury instruction regarding arming himself in advance, because the defendant had in essence sought out the victim when he exited his vehicle to confront the approaching persons. This is in contrast to Rajnic v. State, in which the defendant retreated to his bedroom but was forced to confront the victims when they barged into his room. Hemingway v. State and Rajnic v. State also illustrate the concept that the defendant has a duty to make a reasonable effort to retreat to safety. Implicit in the Court’s rulings in those two cases is the concept that the defendant in Hemingway v. State could have avoided a confrontation entirely by simply driving away in his car, rather than getting out to confront the victim, whereas the defendant in Rajnic v. State was cornered in his bedroom and had no way to avoid the conflict.

(G) Duty to Retreat—Castle Doctrine and Other Exceptions

The general rule in Maryland is that defendants have a duty to retreat if retreat is within his power and he is able to do so without jeopardizing his safety. Sydnor v. State, 365 Md. 205, 216, 776 A.2d 669, 675 (2001); Corbin v. State, 94 Md. App. 21, 25, 614 A.2d 1329 (1992); see also Redcross v. State, 121 Md. App. 320, 328 (1998); Lambert v. State, 70 Md. App. 83, 519 A.2d 1340, cert. denied, 309 Md. 605, 525 A.2d 1075 (1987); Barton v. State, 46 Md. App. 616, 420 A.2d 1009 (1980); Jackson v. State, 31 Md. App. 518, 357 A.2d 845 (1976); Law v. State, 21 Md. App. 13, 318 A.2d 859 (1974); Tipton v. State, 1 Md. App. 556, 232 A.2d 289 (1967).

In De Vaughn v. State, 232 Md. at 447, 194 A.2d at 109 (1963), the Court stated:

The law on the subject of self-defense was fully set forth by this Court in the comparatively recent case of Bruce v. State, 218 Md. 87, 96–97, 145 A.2d 428, 433 (1958), where we said in approving the trial court’s instructions to the jury: … [I]n order to justify or excuse the killing of another on the ground of self-defense, it was necessary to establish that the defendant was not the aggressor and did not provoke the conflict; that the defendant believed at the time he was in such immediate danger of losing his own life or suffering serious bodily harm as made it necessary to take the life of the deceased to save himself; that the circumstances were such as to warrant reasonable grounds for such belief in the mind of a man of ordinary reason; that, if the peril of the defendant was imminent, he did not have to retreat but had a right to stand his ground and to defend and protect himself; that an attempted battery may be met by resisting force with force provided no unnecessary violence was used and proper measures were taken to avoid the conflict and escape from shedding blood; and that it was the duty of the defendant to retreat or avoid danger if such means were within his power and consistent with his safety.

232 Md. at 453, 194 A.2d at 112.

The above language in DeVaughn (quoting Bruce) might seem ambiguous at first glance. The language says there is no duty to retreat when the peril is imminent, and in the same paragraph, says that there is a duty to retreat whenever possible. The ambiguity can be resolved by interpreting the statement that there is no duty to retreat when the peril is imminent as merely a tautology, describing situations when it is impossible to find safe retreat due to imminent harm.

While the general rule is that defendants have a duty to retreat if they can safely, there are exceptions to this rule in which the defendant has no duty to retreat at all. The most commonly cited exception is the “castle doctrine” exception, which states that a defendant has no duty to retreat if he is attacked in his home or the surrounding curtilage. Rajnic v. State, 106 Md. App. 286, 664 A.2d 432 (1995); see also De Vaughn v. State, 232 Md. at 447, 194 A.2d at 109; Bruce v. State, 218 Md. at 87, 145 A.2d at 428; Barton v. State, 46 Md. App. at 618, 420 A.2d at 1010; Law v. State, 21 Md. App. at 30, 318 A.2d at 869. This exception applies to members of the household as well as to the head of the household. See Gainer v. State, 40 Md. App. at 388, 391 A.2d at 861; Jackson v. State, 31 Md. App. at 522–23, 357 A.2d at 845. In other words, a person does not need a proprietary or leasehold interest in the property to be covered under the “castle doctrine.” Barton v. State, 46 Md. App. at 619, 420 A.2d at 1009; see also Crawford v. State, 231 Md. at 361, 190 A.2d at 542 (noting in dicta, that the “castle doctrine” extends to a lodger in the home). In Barton v. State, the Court held that it was error not to give the castle doctrine instruction because defendant had recently moved into his girlfriend’s apartment and the victim was a stranger. The Court held that any member of the household who is temporarily or permanently residing there, regardless of whether he has a proprietary or leasehold interest in the property, may be considered to be in his own dwelling place. 46 Md. App. at 616.

An instruction on the castle doctrine is not necessary or required when the evidence does not warrant an instruction on an individual’s duty to retreat. In Rajnic v. State, the defendant was attacked in his own home. Thus, the trial court judge did not instruct the jury on the general duty to retreat before resorting to self-defense. The defendant’s argument that the trial court nevertheless erred in failing to instruct the jury on the castle doctrine was rejected on appeal. In so holding, the Rajnic Court stated:

This Court was faced with a similar situation in Sangster v. State. There, a defendant convicted of assaulting a police officer appealed on the ground, inter alia, that the trial court refused his requested instruction on the “castle doctrine.” In Sangster, as in the instant case, there was no dispute that the incident occurred in the defendant’s home, and the court’s instructions made no mention whatsoever of the general duty to retreat. As we explained in affirming the conviction in Sangster, “[i]t would be senseless to instruct the jury on the castle doctrine where no instruction was given on the duty to retreat.”

Id. at 299, 664 A.2d at 438 (citations omitted).

Despite this exception to the general retreat rule, a person attacked in his home is not given a license to kill anyone who unlawfully enters; the occupant is still subject to the prerequisites of self-defense. For example, the apprehension of harm must be reasonable and the use of force must not be more than is necessary. Gainer v. State, 40 Md. App. at 392, 391 A.2d at 862; see also Barton v. State, 46 Md. App. at 618, 420 A.2d at 1010; Law v. State, 21 Md. App. at 30, 318 A.2d at 869. In DeVaughn v. State, the Court held that a person may not use excessive force, even in his own home.

A defendant also need not retreat if there is a possible avenue of retreat but it is unknown to the defendant. In Redcross v. State, 121 Md. App. 320, 708 A.2d 1154 (1998), the Court of Special Appeals reversed the defendant’s conviction because the trial court failed to instruct the jury as to the defendant’s awareness of a possible avenue of retreat. Id. at 333, 708 A.2d at 1161. The defendant testified that he did not think he could retreat because he was surrounded on all sides. Id. at 331–32, 708 A.2d at 1160. Several other witnesses, however, testified that the defendant was not surrounded. Because there was a factual issue regarding whether the defendant could have retreated and whether the defendant was aware of the avenue of retreat, if it actually existed, the Court found that the trial court was required to instruct the jury that a defendant is not required to retreat if he is unaware of the avenue of retreat. Id. at 332, 708 A.2d at 1160; see also Perkins & Boyce, Criminal Law 1131–32 (3d ed. 1982). Maryland Courts have also recognized exceptions to the duty to retreat if the defendant was being robbed by the victim or if the defendant was lawfully attempting to arrest the victim. See Redcross v. State, 121 Md. App. at 328 n.4, 708 A.2d at 1158; see also Braboy v. State, 130 Md. App. 220, 745 A.2d 471 (2000); Perkins & Boyce, Criminal Law 1131–32 (3d ed. 1982).

While Maryland has not explicitly stated that a defendant has no duty to retreat when using non-deadly force, it has upheld jury instructions that state that a defendant has no duty to retreat when using non-deadly force. See Marr v. State, 134 Md. App. 152, 185, 759 A.2d 327, 345 (2001). Some jurisdictions also do not require the defendant to retreat if the defendant was in his place of business or office, see Wayne R. LaFave, Criminal Law, § 10.4(f) 578 (5th ed. 2010), but Maryland has not considered the issue.

(H) Evidence Relating to Victim’s Reputation, Threats and Prior Acts of Violence

At common law, the general rule was that evidence of the character and reputation of the victim was not admissible. An exception to this rule, however, was when there was a claim of self-defense. Nixon v. State, 204 Md. 475, 105 A.2d 243 (1954). On July 1, 1994, Title 5 of the Maryland Rules, which was modeled after the Federal Rules of Evidence, took effect. Md. Rule 5-404 states the general principle, similar to the common law rule, that character evidence is not admissible to prove conduct, with limited exceptions. Under these Rules, there is an exception under Rule 5-404(a)(1)(B), which states:

Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

Rule 5-405 sets forth the methods of proving character. Rule 5-405(a) states:

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

Thus, according to these rules, when a defendant raises self-defenses and seeks to litigate the character of the victim on the question of who is the initial aggressor, the defendant is limited in methods of proof to reputation or opinion evidence. The issue that arises is how the victim’s prior threats and acts of violence should be treated under the Maryland Rules. In addition, Rule 5-404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.

There does not seem to be any cases fully addressing the application of these provisions to the issue of when a victim’s prior acts of violence can be admitted to support a defendant’s self-defense claim since the adoption of Title 5. The leading common law cases on this issue have not been expressly overturned; to the contrary, they seem to still state good law and are cited in treatises that discuss Maryland evidentiary law under Title 5 and otherwise. See generally McLain, Maryland Evidence, § 404 and § 405 (2nd ed. 2001). It should be noted, however, that pre-Title 5 case law’s extension of the rule to civil cases that involve acts that would be crimes, like assault and battery, has been overruled by Md. Rule 5-404. See Id. at § 404:3(a). Arguably, this provides further support to the proposition that pre-Title 5 case law interpreting the exception to the character evidence rule in criminal cases where self-defense is asserted is still binding precedent. Therefore, a brief analysis of the treatment of this issue by Federal Rule of Evidence 404(b), since Maryland’s Rule is modeled after the Federal Rule, as well as a discussion of Maryland pre-Title 5 cases is instructive.

Fed. R. Evid. 404(b) permits evidence of a person’s other acts, wrongs, or crimes to be used where there is a relevant purpose other than the prohibited use as character or propensity evidence. This rule applies even when character is not an essential element of the case. Courts have construed Fed. R. Evid. 404(b)’s use of the non-limiting term “such as” to mean that evidence of a person’s “other” acts, wrongs, or crimes may be admitted, for purposes other than those listed in the statute. See McLain, Maryland Evidence, § 404:15(a). The theory underlying Fed. R. Evid. 404(b) and Md. Rule 5-404(b) is that the Court has discretion to admit evidence that is relevant to specific issues other than character, even though there may be an impermissible character inference. The advisory committee note to Fed. R. Evid. 404 states: “No mechanical solution if offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.” Therefore, the issue basically becomes a Rule 403 balancing decision pursuant to the court’s discretion. Furthermore, the Third Circuit in Government of Virgin Islands v. Carino stated:

Although there is no specific reference in the Federal Rules of Evidence to admissibility [of evidence of a specific instance offered for a purpose other than proving the victim’s conduct conformed to her character], we do not read the Rules as changing the prior precedent under which certain acts of violence by the victim are admissible to corroborate defendant’s position that he “reasonably feared he was in danger of imminent great bodily injury.” Commentators on the Federal Rules of Evidence have reached a similar conclusion. Professors Louisell and Mueller state, “If it can be established that the accused knew at the time of the alleged crime of prior violent acts by the victim, such evidence is relevant as tending to show a reasonable apprehension on the part of the accused. Since this is not circumstantial use of character evidence to prove conduct, such use is not barred either by Rule 404 or Rule 405.” While such use of a victim’s prior acts may not fall precisely into any of the enumerated purposes, it is close to some of them, such as “intent” and “knowledge.” In any event, the enumerated purposes are not exclusive, as demonstrated by the Rule authorizing use of other crimes evidence “for other purposes, such as …”

631 F.2d 226, 228 (3d Cir. 1980); see also McLain, Maryland Evidence, § 404:15(i) n. 46.

The Maryland Court of Appeals has held that evidence of the defendant’s knowledge of the deceased’s character as a violent and dangerous person is relevant for two reasons. See Thomas v. State, 301 Md. 294, 306, 483 A.2d 6, 12 (1984). First, the violent and dangerous character of the victim is relevant in determining who was the aggressor. Thomas v. State, 301 Md. 294, 483 A.2d 6 (1984); Gunther v. State, 228 Md. 404, 179 A.2d 880 (1962); Williamson v. State, 25 Md. App. 338, 333 A.2d 653 (1975); see also McLain, Maryland Evidence, § 404:4(a) (noting that a defendant, claiming self-defense, may introduce reputation or opinion evidence of the victim’s propensity for violence in order to prove that the victim acted “in character” and was the initial aggressor). Further, if the evidence is submitted only to corroborate testimony of the defendant as to the circumstances of the encounter, character evidence is admissible regardless of whether or not the accused has prior knowledge of the victim’s violent character. Williamson v. State, 25 Md. App. at 345, 333 A.2d at 657; see Wharton, Criminal Evidence § 236 (13th ed. 1972). To use character evidence for this purpose, however, “the proponent of the evidence must first establish an evidentiary foundation tending to prove that the defendant acted in self-defense.” Thomas v. State, 301 Md. at 307, 483 A.2d at 13; Williamson v. State, 25 Md. App. at 345, 333 A.2d at 657. Furthermore, although general character evidence may be admissible to show who was the first aggressor, specific acts cannot be offered to show a general reputation for violence under these circumstances. See McLain, Maryland Evidence, § 404:15(i). Prior threats made by the victim against the defendant, however, whether he knew of them or not, are admissible to determine who was the initial aggressor. Barger v. State, 2 Md. App. 565, 568, 235 A.2d 751, 753 (1967); Bowyer v. State, 2 Md. App. 454, 235 A.2d 317 (1967).

Second, the character evidence may be introduced to prove the defendant’s state of mind when the victim was killed or injured. See McLain, Maryland Evidence, § 404:10(b). Even if the victim was not the first aggressor, this evidence may be admissible to show that the defendant reasonably misread the situation. Id. at § 404:15(a). Character evidence of the victim may be relevant in determining whether the defendant actually believed that he was in danger of serious bodily harm or death, and whether or not that belief was reasonable. Jones v. State, 182 Md. 653, 659, 35 A.2d 916, 919 (1944); see also Thomas v. State, 301 Md. at 294, 483 A.2d at 6; Jones v. State, 13 Md. App. 677, 284 A.2d 635 (1971); Gunther v. State, 228 Md. at 404, 179 A.2d at 880; Winner v. State, 144 Md. 682, 125 A. 397 (1924); Richards v. State, 65 Md. App. 141, 499 A.2d 965 (1985); Armstrong v. State, 51 Md. App. 508, 444 A.2d 1049 (1982).

In addition to the victim’s reputation for violence (known to the defendant), the defendant may also introduce evidence of the deceased’s previous violent acts (that are known to the defendant) to prove the defendant’s state of mind and perception of the deadly motive and purpose in the acts of the victim. Thomas v. State, 301 Md. at 307, 483 A.2d at 13; see also McLain, Maryland Evidence, § 404:4(b). In Jones v. State, the Court stated:

Where the defendant claims that he acted in self-defense, and there is some testimony of an overt act on the part of the deceased and some testimony tending to support the theory of self-defense, where the necessity for the defendant’s resorting to it should be judged by the facts as they appeared to him, whatever they truly were, he may give in evidence whatever he knew of the character, prior conduct, threats or other utterances of the person with whom he was contending, which is admitted in evidence, not to show that the deceased was bad, but in this special instance was dangerous.

13 Md. App. at 684–85, 284 A.2d at 639. Relying on Jones v. State, the Court in Williamson v. State confirmed this principle, stating that “previous acts of violence by the deceased, especially if committed recently [and] known to the defendant, might have an even stronger influence on his mind than would be produced by knowledge of the reputation of the deceased for violence.” 25 Md. App. at 344, 35 A.2d at 656.

In order to use character evidence to prove the defendant’s state of mind, however, the defendant must first prove (1) his knowledge of the victim’s prior acts of violence, and (2) an overt act demonstrating the victim’s deadly intent toward the defendant. Thomas v. State, 301 Md. at 307, 483 A.2d at 13; Gunther v. State, 228 Md. at 410, 179 A.2d at 883.

The courts have also addressed the more specific situation of prior threats that is encompassed within the category of evidence of prior specific acts. In Bowyer v. State, the Court stated:

Maryland has permitted threats against the accused, as opposed to threats against others, to be introduced into evidence whether the accused knew of them at the time of the homicide or not. Maryland has also permitted the use of threats against others where the accused was aware of them at the time of the homicide … We know of no authority that permits the use of threats against others when such threats are not known to the accused at the time of the affray.

2 Md. App. at 459, 235 A.2d at 320 (citations omitted). Therefore, a victim’s prior threats against the defendant are admissible, whereas the victim’s previous threats against others are only admissible if the defendant knew of them. Threats unknown to the defendant are obviously not related to the defendant’s state of mind. Yet, threats unknown to, but directed against, the defendant are relevant as tending to show which party was the aggressor. Barger v. State, 2 Md. App. at 565, 235 A.2d at 751; see also Magness v. State, 2 Md. App. 320, 234 A.2d 481 (1967). Additionally, introducing the victim’s statements to show the effect they had on the defendant is not hearsay because the defense is not introducing the statements to prove the truth of the matter asserted. Wallace-Bey v. State, 234 Md. App. 501, 538–40, 172 A.3d 1006, 1027–28 (2017). The statements are offered to show their effect on the defendant’s state of mind, especially the defendant’s honest and reasonable belief in the immediacy and degree of danger of the victim. Id. In Wallace-Bey, the trial court erroneously excluded the victim’s statements to the defendant, including, among other things, “you need to learn to take the dick.” Id. at 542–44, 172 A.3d at 1030–31. The Court of Special Appeals reversed and held that the statement was not being introduced to prove the truth of the “vile message,” but rather to prove that “Wallace-Bey understood that Whaley was going to rape her at that time.” Id. It also held that the defense’s expert should have been allowed to testify about the defendant’s reports of words spoken by the victim because it was offered to help explain the expert’s opinion on the psychological trauma that the defendant suffered, and thus, it was not double hearsay. Id. at 540, 172 A.3d at 1028. Finally, if shown to be relevant and not unduly prejudicial, the trial judge may admit prior acts of physical, sexual, and emotional abuse of the defendant by third parties, such as abuse by the defendant’s mother and the mother’s boyfriend in childhood either as relating to the defendant’s state of mind at the time the defendant fired a shot against the victim or, as is more likely, the basis of the defendant’s expert witness’s opinions. Id. at 547–51, 172 A.3d 1032–35.

Thus, character evidence will only be admitted for the purpose of determining the defendant’s state of mind if the defendant knew of the victim’s reputation, threats, or prior acts. Thomas v. State, 301 Md. at 307, 483 A.2d at 13; Williamson v. State, 25 Md. App. at 338, 333 A.2d at 653. Knowledge that someone is dangerous does not require the defendant to avoid contact with this person; the right of the defendant to go wherever he legally has a right to go is not abridged by the fact that he knows that he might be attacked. Gunther v. State, 228 Md. at 409, 179 A.2d at 883; see also Perry v. State, 234 Md. 48, 197 A.2d 833, 837 (1964) (stating that a man may proceed with his legitimate business despite apprehension, provided he does not in any sense seek an encounter and is not the aggressor). In 2021, the Maryland legislature added Crim. Law § 3-209(b), which specifies that the discovery or perception of, or belief about, another person’s race, color, national origin, sex, gender identity, or sexual orientation, whether or not accurate, is not a defense to the crime of assault in any degree. Crim. Law § 3-209(b).

(I) Battered Spouse, Child, Cohabitant Syndrome

(1) Introduction

Instruction § 8.13(G), Self-Defense: Battered Spouse, Child, Cohabitant Syndrome (Suggested Instruction), may apply in situations of repeated physical, sexual, and/or psychological abuse by a spouse, former spouse, child, cohabitant, or former cohabitant when the defendant is charged with first-degree murder, second-degree murder, manslaughter, or attempt to commit any of these crimes, or assault in the first degree and the defendant is asserting self-defense or imperfect self-defense as a result of the physical and psychological abuse as defined in Md. Code Ann., Cts. & Jud. Proc. § 10-916 (1996). See Porter v. State, 455 Md. 220, 166 A.3d 1044 (2017) (where the defendant asserted the battered spouse syndrome as the basis for imperfect self-defense). This defense also has been recognized in the medical and scientific communities as “Battered Woman Syndrome,” or phrased more broadly as “evidence of intimate partner battering and its effects.” Since 1988, introduction of evidence of battered spouse syndrome has expanded beyond criminal defense and has also increasingly been used by the prosecution in domestic violence cases. See Robert Coleman, Criminal Law Chapter: Battered Woman Syndrome, 10 Geo. J. Gender & L. 333, 339–40 (2009). In 2004, the Maryland Court of Appeals noted that most courts now admit some form of evidence of domestic violence and its effects: “It is clear … that the battered spouse syndrome has become generally accepted in the psychological community and, by now, has been recognized as such by most of the courts in this country that have had occasion to consider it.” State v. Smullen, 380 Md. 233, 267, 844 A.2d 429, 449 (2004). “To require the battered person to await a blatant, deadly assault before she can act in defense of herself would not only ignore unpleasant reality, but would amount to sentencing her to ‘murder by installment.’ ” State v. Gallegos, 104 N.M. 247, 719 P.2d 1268, 1271 (N.M. App. 1986) (quoting Loraine Patricia Eber, The Battered Wife’s Dilemma: To Kill or To Be Killed, 32 Hastings L.J. 895, 928 (1981)).

This instruction is also patterned in part on the instructions given by Judge Steven I. Platt in State of Maryland v. Anabel Elias, Unreported Opinion No. 93-1705, September Term, 1993, aff’d. See also Steven I. Platt, Women Accused of Homicide: The Use of Expert Testimony on Effect of Battering on Women—A Trial Judge’s Perspective, 25 U. Balt. L. Rev. 33 (1995). The instruction was modified based on the holding of State v. Elzey, 472 Md. 84, 244 A.3d 1068 (2021) that the statute: 1) addresses the admissibility of Battered Spouse Syndrome by the trial court and does not require the jury to make a predicate finding before the jury may consider the evidence of Battered Spouse Syndrome; and 2) the previous instruction was unclear and potentially misleading as to what, if any, effect past abuse may have had on the defendant’s state of mind.

(2) Maryland’s Statute

The Battered Spouse Syndrome statute modifies existing evidentiary rules regarding the admissibility of evidence, most notably authorizing the admission of expert testimony on the battered spouse syndrome in certain criminal cases when self-defense or imperfect self-defense is raised. The statute also allows evidence of repeated physical and psychological abuse of the defendant by an individual who is the victim of a crime for which the defendant has been charged. See Md. Code Ann., Cts. & Jud. Proc. § 10-916 (1996).

The statute permits the court to admit evidence of prior abuse and expert testimony on the syndrome in cases when the defendant is charged with killing or attempting to kill an intimate partner or is charged with first-degree assault of an intimate partner by whom she had previously been abused. The statute permits the introduction of this evidence notwithstanding other evidence in the case suggesting that the defendant may be unable to meet all of the elements of self-defense or imperfect self-defense—i.e., evidence that the defendant was the first aggressor, used excessive force or failed to retreat. See Judith A. Wolfer, Domestic Violence Training Manual XV, The Maryland Institute for Continuing Professional Education of Lawyers, Inc., (Oct. 1998).

The battered spouse syndrome statute does not create a new “defense” and it is not a defense in and of itself for a battered person. See State v. Elzey, 472 Md. 84, 109, 244 A.3d 1068, 1083 (2021); Porter v. State, 230 Md. App. 288, 313, 148 A.3d 1, 15 (2016) (explaining that the statute “does not create an independent defense to the enumerated homicide and assault crimes”); Banks v. State, 92 Md. App. 422, 429, 608 A.2d 1249, 1252 (1992). Rather, it is “a psychological condition, evidence of which may have a bearing, in a given case, on the state of mind element of the defenses of perfect and imperfect self-defense, when they have been raised.” State v. Peterson, 158 Md. App. 558, 587, 857 A.2d 1132, 1148–49 (2004).

The battered spouse syndrome is not inherently inconsistent with the traditional elements of self-defense and merely requires a more careful look at the notion of imminent threat and what constitutes “aggression.” State v. Smullen, 380 Md. 233, 250, 844 A.2d 429, 439 (2004). The trier of fact must still find that the defendant killed in the reasonable and honest belief that she or he was in fear of imminent death or serious bodily harm. Evidence of intimate partner battering and its effects can facilitate an understanding that certain conduct that might not be regarded as imminently dangerous by the public at large can cause someone who has been repeatedly subjected to and hurt by that conduct before to honestly, even reasonably, regard it as imminently threatening. Id. at 250–51 (noting that there is no harm when the syndrome is used to explain both the subjective honesty of the defendant’s perception of imminent harm and the objective reasonableness of that perception).

The statute allows the introduction of expert testimony that: (1) explains that the battered defendant’s subjective belief that she was in danger of imminent or immediate bodily harm or serious bodily harm or death may be justified based on her experiences involving repeated physical abuse; (2) sheds light on the reasonableness of the defendant’s belief that she was in imminent danger of serious physical harm; and, (3) helps explain the reasonableness of the force used by the defendant in response to the perceived threat.

Md. Code Ann., Cts. & Jud. Proc. § 10-916 (1996) provides as follows:

“(a) Definitions.—

(1) In this section the following words have the meanings indicated.
(2) ‘Battered Spouse Syndrome’ means the psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant, or former cohabitant which is also recognized in the medical and scientific community as the “Battered Woman’s Syndrome”.
(3) ‘Defendant’ means an individual charged with:

(i) First degree murder, second degree murder, manslaughter, or attempt to commit any of these crimes; or
(ii) Assault in the first degree.

(b) Admissibility of evidence. Notwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense, when the defendant raises the issue that the defendant was, at the time of the alleged offense, suffering from the Battered Spouse Syndrome as a result of the past course of conduct of the individual who is the victim of the crime for which the defendant has been charged, the court may admit for the purpose of explaining the defendant’s motive or state of mind, or both, at the time of the commission of the alleged offense:

(1) Evidence of repeated physical and psychological abuse of the defendant perpetrated by an individual who is the victim of a crime for which the defendant has been charged; and
(2) Expert testimony on the Battered Spouse Syndrome.”

Law review articles discussing Maryland’s statute interpret the legislation as quite expansive because the legislation allows the testimony despite evidence tending to show the defendant was the first aggressor, used excessive force or failed to retreat at the time of the offense. See Developments in the Law: Legal Responses to Domestic Violence, 106 Harv. L. Rev. 1498, 1586 (1993); Jeannie Marie Bates, Comment, Expert Testimony on the Battered Woman Syndrome in Maryland, 50 Md. L. Rev. 920, 938 (1991). Based upon a literal reading of the statute, these expansive interpretations are supported. If the courts interpret the statute in this manner, then even in situations in which the battered person shot the victim in his sleep and the defendant was the first aggressor, the evidence may be admissible.

The problem with the above analysis is that the courts have substantial discretion in determining whether to admit evidence under the statute. The statute provides that the court “may”—not “shall”—admit, evidence under the statute. Judith Wolfer recognized that House Bill 49 was written to purposely give the court the broadest latitude to control the trial. Judith A. Wolfer, Esq., Testimony to the House Judiciary Committee on H.B. 49, at 4 (1991); Judith A. Wolfer, The Maryland Institute for Continuing Professional Education of Lawyers, Inc. (Oct. 1998). The bill is permissive, rather than mandatory, allowing ample room for the trial court to exclude evidence that is clearly irrelevant or too distant in time to support the defendant’s claim. See Judith A. Wolfer, Testimony to the House Judiciary Committee, Maryland General Assembly on H.B. 49, at 5 (1991). The courts are left with discretion to disallow evidence if the offense occurred outside of a confrontational situation.

Wolfer stresses that a judge can admit expert testimony despite evidence that the woman was the first aggressor, used excessive force or failed to retreat. Wolfer explains that the bill “surmounts the hurdle created by the court’s uninformed, preliminary determination of first aggressor status … without the benefit of a full hearing about the abuse and expert testimony to explain the effect of that abuse on the defendant’s life and state of mind.” Wolfer, supra at 34. Wolfer’s interpretation follows the literal interpretation of the statute in that, even if the evidence suggests the woman was the first aggressor, used excessive force or failed to retreat, the evidence should be admissible to permit the woman to explain the effects of her abusive relationship. The Maryland statute eliminates any reference specific to self-defense. This deletion may avoid a restrictive interpretation that precludes use of the expert testimony for other defenses, despite earlier drafts of Maryland’s legislation, which included a paragraph specifically addressing self-defense.

The Court of Appeals of Maryland addressed the issue of unduly restrictive interpretations of the statute in 2004 in State v. Smullen, 380 Md. 233 n.8, 844 A.2d 429 (2004):

This discretionary aspect must be taken with some caution. If, because an adequate foundation for it has been established, syndrome evidence is relevant and is properly offered, the court must admit it, first, because Maryland Rule 5-402 makes clear that, unless rendered inadmissible by other law, all relevant evidence is admissible, and second, because a defendant has a Due Process Constitutional right to mount a defense and have considered relevant and admissible evidence in support of that defense. The discretion is the normal one accorded to trial judges to determine whether particular evidence is, indeed, relevant under Rule 5-401 and not unduly prejudicial or misleading under Rule 5-403. The legislative intent, we think, was simply to preserve that discretion and make clear that judges were not required to admit this evidence in all cases, simply because it was offered.

Id. n.8.

It is noteworthy that courts in Maryland have found that, in some cases, failure to offer evidence of battered spouse syndrome constitutes ineffective assistance of counsel. The Maryland Court of Special Appeals affirmed post-conviction relief for a defendant convicted of first-degree murder, second-degree murder, battery, and use of a handgun in commission of a felony for the shooting death of her abusive husband. After enduring years of abuse—including physical abuse, daily death threats, and rape threats—the defendant shot her abusive husband while he was watching television. Defense failed to offer battered spouse syndrome evidence, and the court held that this resulted in prejudice to the defendant, constituting ineffective assistance of counsel. State v. Peterson, 158 Md. App. 558, 587, 857 A.2d 1132, 1148–49 (2004).

In addition, courts in other jurisdictions have held that, in some circumstances, failure to admit evidence of battered spouse syndrome or intimate partner battering and its effects constitutes reversible error. See State v. Price, 760 N.W.2d 210 (Iowa Ct. App. 2008) (trial court’s exclusion of expert testimony on battered women’s syndrome in support of defendant’s self-defense claim was reversible error); People v. Minnis, 455 N.E.2d 209 (Ill. App. Ct. 1983) (exclusion of battered woman syndrome evidence reversible error if expert testimony would have allowed defendant to rebut state’s claims about her emotional state during and after murder); State v. Grubbs, 353 S.C. 374, 577 S.E.2d 493 (Ct. App. 2003) (refusal to admit expert testimony regarding battered wife syndrome was reversible error in homicide prosecution; proffered expert testimony was relevant to explain defendant’s inconsistent testimony); Fielder v. State, 756 S.W.2d 309, 320 (Tex. Crim. App. 1988) (accepting expert evidence to show reasonableness of abused woman’s fear of decedent; exclusion of psychologist’s testimony to explain why woman would endure abusive relationship was reversible error). The analysis of error is fact specific and depends upon the wording of each state’s statute and controlling case law, but it is notable that while the trial court has discretion in determining admissibility of this evidence, it is not an unfettered discretion.

(3) Expert Testimony: Evidence of Battered Spouse Syndrome and Other Evidence of Intimate Partner Battering and Its Effects

Evidence of past physical, sexual, and psychological abuse, including expert testimony interpreting such evidence, is crucial to proving a claim of self-defense when asserted by a battered spouse fighting back against her batterer. Lenore Walker, a prominent writer and researcher on the subject of battered woman’s syndrome, first published on the issue of intimate partner battering and its effects in the 1970s. Walker states that relationships of violence and abuse occur in what may be described as a “cycle of violence.” See Lenore Walker, The Battered Woman (1979). Her work was foundational to the understanding within the criminal justice system of the impact of intimate partner violence. Walker’s work was cited in many early cases. See State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984) (analyzing “battered woman syndrome” as defined by Lenore Walker).

In particular, courts have recognized that expert testimony on battering may cover: (a) general information on the dynamics of domestic violence; (b) explanations of the behavior of a battered woman that may seem consistent or inconsistent with being battered; (c) discussion of common misconceptions and myths about battered women; (d) common reactions that women have to battering; (e) a discussion of the particular facts in the case to show how they are consistent with a battering relationship; and (f) the particular experiences of the battered woman defendant, including her own strategies for stopping the violence, her psychological responses to battering, and the cumulative effects of the battering on her behavior and state of mind. See Julie Blackman, Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill, 9 Women’s Rts. L. Rep. 227, 228 (1986); Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191 (1993); Martha Mahoney, Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 36 (1991); Elizabeth M. Schneider, Describing and Changing: Women’s Self-Defense Work and the Problem of Expert Testimony on Battering, 9 Women’s Rts. L. Rep. 195, 202 (1986). See also State v. Kelly, 97 N.J. 178, 478 A.2d 364, 378 (1984); State v. Richardson, 189 Wis. 2d 418, 525 N.W.2d 378 (1994).

The Department of Justice National Institute of Justice evaluated the use of evidence of battering in criminal trials, concluding that evidence of intimate partner battering and its effects can help the fact finder understand the battered woman’s appraisal of threat, including her perception of danger at the time of the criminal act, and her response to that threat:

Threat behavior may be considered dangerous based solely on its objective nature, considering the disparity between two individuals in size, weight, strength, and/or skill in using physical force. Examples of such threat behavior include explicit or implicit threats to harm (e.g., punching, pushing down a flight of stairs, sexual assault, or use of a weapon). In addition, a batterer’s unique history of abuse and violence may provide his victim with added information against which to determine the meaning of his subsequent behavior. For example, intimate partners generally learn to read the subtle nuances of each other’s behavior more clearly than can others. Persons who are oppressed or victimized, such as prisoners of war or hostages, have a great incentive to read their oppressor’s behavior accurately. This principle applies to battered women in their abusive relationships. That is, a battered woman’s appraisal of the threat implicit in a batterer’s behavior is based on his pattern of prior violence and abuse. When she has been exposed to severe violence by her partner on previous occasions, she has had the unfortunate opportunity to learn the behavioral clues that signal danger. Thus, the meaning of threat behavior can best be understood in light of a woman’s unique history and her knowledge of her partner’s prior behavior, as well as by the objective properties of the threat behavior.

The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act, NCJ 160972 (Dept. of Justice, May 1996).

Not only does such evidence shed light on the sincerity and reasonableness of the defendant’s belief that she was in imminent danger of serious physical harm, but it may also help to explain the reasonableness of the force used by the defendant in response to such a threat. Most importantly, it addresses questions that many jurors cannot answer based upon their own experience, such as why the defendant did not leave or call the police before attacking her batterer. For example, expert testimony can explain how battered spouses can become experts at recognizing warning signs of an impending attack such as a look in their spouse’s eyes, heavy drinking or heightened irrational jealousy, signs that may not be detected by another person lacking such heightened awareness. Banks v. State, 92 Md. App. 422, 429, 608 A.2d 1249, 1252 (1992). In a study by Angela Browne of women who killed their abusers, many of the women studied remained in the relationship because they tried to escape and were beaten, or they feared an attempt to leave would instigate further violence. See Angela Browne, When Battered Women Kill at 113 (1987).

In Wallace-Bey v. State, the Court of Special Appeals held that expert testimony may include not only the victim’s past statements of abuse and threats made to the defendant, but also evidence of third party abuse the defendant endured during her childhood. 234 Md. App 501, 547–51, 172 A.3d 1006, 1032–34 (2017). Evidence of third party abuse is admissible if it is relevant to show the foundation of the expert’s opinion that the defendant was suffering from the “battered spouse syndrome,” id., and to show its relationship to other psychological conditions such as post-traumatic stress disorder and depression. Id. at 554–57, 172 A.3d at 1037–38. The use of this evidence, including out of court statements by the victim and third parties, is not hearsay because the statements are offered not for their truth but as the basis of the expert witness’s opinion. Id. at 550–51, 556–57, 172 A.3d at 1034–35, 1038. See also State v. Elzey, 472 Md. 116, 244 A. 3d 1068 (2021).

Accordingly, expert testimony on intimate partner battering and its effects has been admitted in every state and the District of Columbia to help the trier of fact understand one or more of the elements of the defendant’s claim of self-defense. See Robert Coleman, Criminal Law Chapter: Battered Woman Syndrome, 10 Geo. J. Gender & L. 333, 333–34 (2009); The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act, NCJ 160972 (Dept. of Justice, May 1996). See also Ex Parte Hill, 507 So. 2d 558, 558 (Ala. 1987) (per curium) (agreeing that expert testimony on syndrome may be admitted with proper predicate and foundation); Terry v. State, 467 So. 2d 761, 764 (Fla. Dist. Ct. App.), rev. denied, 476 So. 2d 675 (Fla. 1985) (finding expert opinion on syndrome admissible to show reasonableness of defendant’s belief in necessity of self-defense); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981) (establishing that expert testimony on battered women’s syndrome is admissible, including testimony that reaches the ultimate issue); State v. Cababag, 9 Haw. App. 496, 850 P.2d 716, cert. denied, 853 P.2d 542 (1993) (expert testimony on battered housemate/spouse syndrome was correctly admitted because it provided specialized knowledge that was unknown to the average juror).

Additional cases in which an appellate court ruled on the admissibility of expert testimony on so-called “battered woman (spouse) syndrome” include: State v. Price, 760 N.W.2d 210 (Iowa Ct. App. 2008) (trial court’s exclusion of expert testimony on battered women’s syndrome in support of defendant’s self-defense claim was reversible error); People v. Minnis, 118 Ill. App. 3d 345, 74 Ill. Dec. 179, 455 N.E.2d 209 (1983) (exclusion of battered woman syndrome evidence reversible error if expert testimony would have allowed defendant to rebut state’s claims about her emotional state during and after murder; Nixon v. United States, 728 A.2d 582 (D.C. 1999) (psychologist’s expert testimony on battered woman syndrome was beyond the scope of jurors and would be useful in their consideration of evidence in domestic violence prosecution); State v. Anaya, 438 A.2d 892, 894 (Me. 1981) (reversing manslaughter conviction based on finding that trial court abused its discretion in denying expert testimony on battered wife syndrome); State v. Williams, 787 S.W.2d 308, 313 (Mo. Ct. App. 1990) (concluding syndrome evidence was necessary to explain defendant’s perception that no escape was possible); State v. Baker, 120 N.H. 773, 424 A.2d 171, 173 (1980) (admitting syndrome evidence to rebut insanity plea by abuser with alternative explanation for assault); State v. Townsend, 186 N.J. 473, 897 A.2d 316 (2006) (allowing expert testimony on effects of battering even when woman was not diagnosed with “battered woman’s syndrome”); State v. Kelly, 97 N.J. 178, 478 A.2d 364, 377 (1984) (finding expert testimony relevant to reasonableness of defendant’s belief in imminent danger); State v. Seeley, 186 Misc. 2d 715, 720 N.Y.S.2d 315 (Sup. Ct. 2000) (defendant charged with second-degree murder of boyfriend entitled to offer expert testimony regarding battered spouse syndrome and that defendant was battered by decedent); People v. Torres, 128 Misc. 2d 129, 488 N.Y.S.2d 358 (Sup. Ct. 1985) (expert testimony on battered woman’s syndrome was admissible, having substantial bearing on defendant’s state of mind at time of shooting, and was therefore relevant to jury’s evaluation of justification defense); State v. Leidholm, 334 N.W.2d 811, 819 (N.D. 1983) (accepting expert testimony on syndrome to explain psychological effects of prolonged battering relationship); State v. Haines, 112 Ohio St. 3d 393, 2006-Ohio-6711, 860 N.E.2d 91 (reiterating that battered-woman syndrome testimony meets the scientific validity and specialized knowledge requirements for admission of expert testimony); State v. Koss, 49 Ohio St. 3d 213, 551 N.E.2d 970, 974–75 (1990) (accepting expert testimony on syndrome to assist trier of fact in determining question of self-defense); Smith v. State, 2006 OK CR 38, 144 P.3d 159 (holding that counsel’s failure to offer expert testimony on Battered Woman Syndrome in support of self-defense to murder constituted ineffective assistance of counsel); Bechtel v. State, 1992 OK CR 55, 840 P.2d 1 (finding “Battered Woman Syndrome” a substantially scientifically accepted theory); State v. Grubbs, 353 S.C. 374, 577 S.E.2d 493 (Ct. App. 2003) (refusal to admit expert testimony regarding battered wife syndrome was reversible error in homicide prosecution; proffered expert testimony was relevant to explain defendant’s inconsistent testimony); State v. Hill, 287 S.C. 398, 339 S.E.2d 121, 122 (1986) (holding battered woman syndrome evidence proper subject for expert testimony on defendant’s state of mind); Fielder v. State, 756 S.W.2d 309, 320 (Tex. Crim. App. 1988) (accepting expert evidence to show reasonableness of abused woman’s fear of decedent; exclusion of psychologist’s testimony to explain why woman would endure abusive relationship was reversible error); State v. Allery, 101 Wn.2d 591, 682 P.2d 312, 316 (1984) (en banc) (holding expert testimony on syndrome admissible to show defendant’s fear of imminent danger); State v. Stewart, 228 W. Va. 406, 719 S.E.2d 876 (2011) (expert testimony regarding defendant’s long history of battery and abuse at hands of homicide victim was relevant and admissible to show state of mind, even when defendant did not claim self-defense); State v. Steele, 178 W. Va. 330, 359 S.E.2d 558, 564 (1987) (affirming relevance and admissibility of evidence on question of reasonable belief of imminent harm).

In United States v. Marenghi, 893 F. Supp. 85 (D. Me. 1995), the court found that nearly all state courts admit expert testimony on battered woman syndrome to support a theory of self-defense. The court agreed with the state court’s admission of such evidence in the context of self-defense in order to dispel the common myths surrounding victims of domestic violence, and to explain the reasonableness of the defendant’s perception and her failure to leave her batterer. Expert testimony on the battered spouse syndrome, or, more broadly, on intimate partner battering and its effects, may help establish the reasonableness of the woman’s perception of danger and the reasonableness of the defendant’s behavior. See Cynthia K. Gillespie, Justifiable Homicide: Battered Women, Self Defense and The Law (1990).

Under Maryland Rule of Evidence 5-704, expert testimony is not objectionable because it embraces an ultimate issue, but an expert testifying with respect to a mental state or condition of a defendant in a criminal case may not state an opinion as to whether the defendant had the mental state constituting an element of the crime charged. Hartless v. State, 327 Md. 558, 611 A.2d 581 (1992). The Court in Simmons v. State, 313 Md. 33, 47, 542 A.2d 1258, 1265 (1988), permitted testimony on the psychological profile of the defendant that helped establish the defendant held a subjective belief that self-defense was necessary. Expert testimony on the psychological profile of the defendant shows that the defendant is more likely to have the subjective belief necessary in self-defense claims. Id. at 48, 542 A.2d at 1265. The expert testimony must have more relevance than narrating the social history of the defendant and must extend beyond a recitation of the defendant’s background. Hartless v. State, 327 Md. 558, 575, 611 A.2d 581, 590 (1992). The expert cannot testify that the defendant held a specific honest belief at the time of the offense. Simmons v. State, 313 Md. 33, 47–48, 542 A.2d 1258, 1265 (1988).

(4) Imminent v. Immediate

In some states, the courts have identified different meanings of “immediate” and “imminent.” Under Maryland self-defense law, the reasonableness requirement is intertwined with the imminent or immediate danger of death or serious bodily harm. See Porter v. State, 455 Md. 220, 166 A.3d 1044 (2017), infra, for a discussion of the imminent or immediate element of self-defense. While some states instruct the jury that the standard is “imminent and immediate”, in Maryland the standard is “imminent or immediate” danger of death or serious bodily harm. Id. at 245, n. 6, 166 A. 3d at 1059 n. 6.

The difference between imminent and immediate may play a significant determination in the outcome of the battered spouse defendant’s case. This distinction is particularly important if the battered person kills his or her spouse during a lull in an attack as opposed to killing during a confrontation. As a general matter, the requirement that the attack must reasonably appear to be imminent is a sensible one. If the threatened violence is scheduled to arrive in the more distant future, there may be avenues open to the defendant other than to kill or injure the prospective attacker; but there is no opportunity to do so when the attack is imminent. The application of this requirement, however, has been questioned in some contexts.

Suppose A kidnaps and confines D with the announced intention of killing him one week later. D has an opportunity to kill A and escape each morning as A brings him his daily ration. Taken literally, the imminent requirement would prevent D from using deadly force in self-defense until A is standing over him with a knife, but that outcome seems inappropriate. The proper inquiry is not the immediacy of the threat but the immediacy of the response necessary in defense. If a threatened harm is such that it cannot be avoided if the intended victim waits until the last moment, the principle of self-defense must permit him to act earlier, as early as is required to defend himself effectively. See Paul H. Robinson, Criminal Law Defenses, § 131(c)(1) (1984); Wayne R. Lafave, Criminal Law, § 10.4(d) (5th ed. 2010).

The definition of imminent was a consideration for the jury instruction in State v. Hundley, 236 Kan. 461, 693 P.2d 475, 477 (1985). The court relied upon a dictionary interpretation to conclude that immediate meant “occurring … without loss of time,” whereas imminent meant “[r]eady to take place … or impending.” Id. at 478 (quoting Webster’s Third New International Dictionary 112,930 (1961)). Another dictionary defines imminent as “about to occur; impending” and immediate as “occurring or accomplished without delay; instant.” The American Heritage Dictionary 34,546 (1983). The court ultimately determined that the correct word to use in the instruction was imminent, not immediate, because immediate “obliterates the nature of the build up of terror and fear which had been systematically created over a long period of time.” State v. Hundley, 693 P.2d at 479. In the context of the domestic violence situation, immediate is generally interpreted by the courts as a stricter standard than imminent.

The court in State v. Norman, 324 N.C. 253, 378 S.E.2d 8, 9, 10–13 (1989), a North Carolina case in which a woman killed her sleeping husband, also relied on the imminent/immediate distinction. The defendant in Norman killed her husband during his sleep; therefore, the court would not allow an instruction on self-defense because no harm was “ ‘imminent’ or about to happen” when she shot him. Id. at 13. The applicable standard of self-defense was whether, at the time of the killing, the defendant reasonably believed she was confronted by circumstances necessitating killing to save herself from imminent death or great bodily harm. Id. A battered person’s heightened perception of impending violence may cause her to perceive imminent danger differently than a man (or a woman not involved in an abusive relationship) because the battered woman’s heightened awareness allows her to interpret certain behavior to indicate an imminent attack. This perception may help establish whether the defendant’s actions are honest and reasonable. Expert testimony assists the jury by explaining how a battered person may have a different perception of imminent violence due to her heightened perception resulting from experiences of abuse.

In Maryland, the elements of self-defense refer to “imminent or immediate” and the terms are used interchangeably in jury instructions. When requesting jury instructions, the choice between imminent and immediate could be significant. Battered persons who have sustained serious injury on numerous occasions may have a reasonable basis for this belief. Many researchers have remarked that some severely battered persons experience “constant anticipatory terror” and an ever-present threat of imminent harm. See Judith A. Wolfer, The Maryland Institute for Continuing Education of Lawyers, Inc. (Oct. 1998); Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Women’s Syndrome, 21 Hofstra L. Rev. 1192, at 1208 (1993) (describing how some women caught in a cycle of violence experience a “continuing state of siege”). Additionally, the duty to retreat requirement of self-defense only refers to retreat at the time of the attack and should not be confused with evidence that the spouse did not leave the relationship; not leaving the relationship at an earlier date is legally irrelevant to the duty to retreat element of self-defense.

In Porter v. State, 455 Md. 220, 166 A.3d 1044 (2017), the Court of Appeals considered, as an issue of first impression, whether an instruction on imperfect self-defense is permissible in a case involving battered spouse syndrome, where the battered spouse contracts for the murder of the abusive spouse. The trial court refused to include the battered spouse syndrome in its instruction on imperfect self-defense. In a 4–3 decision, the Court held that the trial court’s failure to instruct on the battered spouse syndrome as part of the imperfect self-defense instruction was erroneous and not harmless error, thereby reversing the Court of Special Appeals and remanding the case for a new trial. 455 Md. 256, 166 A.3d 1065.

In this case, Ms. Porter contracted for the murder of her husband, Mr. Porter, after enduring severe physical and mental abuse at his hands throughout their 24 years of marriage. Two expert witnesses testified at trial that Ms. Porter suffered from depression, post-traumatic stress disorder, and battered spouse syndrome as a result of the abuse. Several lay witnesses, including the couple’s daughter, testified to the abuse. Additionally, Ms. Porter presented evidence at trial that she had also been abused by her mother’s boyfriend as a child and had witnessed the abuse of her mother at the hands of her mother’s boyfriend. “Although there was evidence that Ms. Porter sustained abuse in the ‘week or so’ before her husband’s murder, the planning of his killing started at least nine months earlier.” 455 Md. 266, 166 A.3d 1071. Ms. Porter made the agreement for murder the night of February 28, 2010, and Mr. Porter was murdered in the early hours of March 1, 2010. As to Ms. Porter’s mental state on the morning her husband was shot, she testified, “In my mind, I knew he was going to kill me at any point.” 455 Md. 228, 166 A.3d 1049.

The jury returned a verdict of guilty of murder in the first degree, use of a handgun in the commission of a crime of violence, conspiracy to commit murder in the first degree, and solicitation to commit murder. Notably, the jury asked a number of questions to the Court during jury deliberations, including: (1) “Can we see the language of the battered spouse syndrome statute?”; and (2) “Clarify definitions of imminent and immediate.” 455 Md. 232, 166 A.3d 1051. The Court declined to provide the battered spouse syndrome statute language and instructed the jury to give “imminent” and “immediate” their “ordinary meaning.” Id. Ms. Porter appealed, arguing that the trial court failed to instruct the jury properly on imperfect self-defense and battered spouse syndrome.

In reversing the Court of Special Appeals, the Court of Appeals analyzed the meaning of the “imminent or immediate” element of imperfect self-defense and self-defense as well as the rationale supporting this element within the context of Maryland’s battered spouse syndrome statute. The Court concluded that non-confrontational homicide may warrant a jury instruction on imperfect self-defense and the battered spouse syndrome, and that contract killings are not distinguishable from other forms of non-confrontational killings. Non-confrontational cases are those in which “the defendant kills her partner while he is sleeping or is otherwise distracted or incapacitated.” State v. Smullen, 380 Md. 233, 257, 844 A.2d 429, 443 (2004). The Court noted, “If we were to hold that a spouse who kills in a non-confrontational setting is not entitled to a self-defense instruction, we would render all or some of the evidence admissible under the battered spouse syndrome statute irrelevant.” 455 Md. 246, 166 A.3d 1059. Citing to cases from other jurisdictions for the proposition that the meaning of “imminence” is broad when a battered spouse kills non-confrontationally, the Court concluded that an imminent threat does not require confrontation or temporal proximity. 455 Md. 243, 166 A.3d 1058 (citing State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (N.M. App. 1986) (woman was entitled to self-defense instruction after she shot, stabbed, and killed her husband while he was lying in bed, when earlier that day he raped her, threatened to kill her, and beat their son); State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (Wash. 1984) (evidence of battered spouse syndrome admissible to show fear of imminent danger when she killed her husband while he was lying on the couch); State v. Hennum, 441 N.W.2d 793, 796–99 (Minn. 1989) (self-defense instruction should have been granted when defendant stabbed abusive husband while he was sleeping))).

The Court also clarified that the elements of imperfect self-defense require the defendant to demonstrate that he or she feared either imminent or immediate danger, not both. “Although the MPJI-Cr use the phrase ‘imminent and immediate,’ this is a misstatement of the law.” 455 Md. 245 n.6, 166 A.3d 1059 n.6 (emphasis in original) (citing MPJI-Cr 4:17.2). The Court noted that each word carries its own meaning and that there is a “temporal distinction” between imminent and immediate; an imminent threat is not one of “temporal proximity to the defensive act,” but of “imminent fear” for the defendant’s life. 455 Md. 245, 166 A.3d 1059. Additionally, distinguishing the words gave effect to the battered spouse statute, which “allows a defendant to present evidence regarding her abuse ‘[n]otwithstanding evidence that [she] was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense.’ ” 455 Md. 238, 166 A.3d 1055. To hold that a battered spouse who kills in a non-confrontational setting is not entitled to a self-defense or imperfect self-defense instruction would in effect render evidence admissible under the statute irrelevant. 455 Md. 246, 166 A.3d 1059.

The dissent argued that the majority expanded the doctrine of self-defense “beyond the limits of immediacy and necessity,” emphasizing that “a murder planned weeks or months in advance can at most be considered a response to a generalized threat or expected future threat, but not a response to an imminent or immediate threat.” 455 Md. 256, 166 A.3d 1065 (Greene, J., dissenting). The dissent further analyzed other contract killing cases and concluded that a contract killing scenario is incompatible with imperfect self-defense due to the lack of the “imminent or immediate” threat element.

(5) Law in Other Jurisdictions

In addition to Maryland, other jurisdictions have been receptive to admitting evidence of intimate partner battering and its effects. Many jurisdictions now allow the defendant to explain, for example, how such abuse may affect the defendant’s perception of the danger posed to her by her batterer and the reasonableness of her response in reaction to such perceived danger.

The legislatures in at least eight states have enacted statutes authorizing the admission of certain types of evidence, including expert testimony, in cases in which self-defense is claimed by the defendant:

1. Cal. Evid. Code Ann. § 1107 (Effective Jan. 1, 2005) (establishing admissibility in all criminal actions of expert testimony regarding “intimate partner battering and its effects”);
2. Ga. Code Ann. § 16-3-21 (Supp. 2001) (allowing expert testimony on defendant’s mental state including family violence as justification for self-defense);
3. La. Code Evid. Ann. art. 404 (West 1989) (making expert testimony on effects of victim’s violence toward accused admissible to prove the victim’s character where self-defense raised after history of intimate partner violence);
4. Mo. Ann. Stat. § 563.033 (Vernon Supp. 1987) (providing for admission of Battered Spouse Syndrome evidence on the question of self-defense or defense of another); State v. Williams, 787 S.W.2d 308, 312 (Mo. Ct. App. 1990) (acknowledging that, if the syndrome is to have any applicability, it must be as a modification of the mental state required of the battered woman);
5. Nev. Rev. Stat. Ann. § 48.061 (West Supp. 2003) (allowing relevant evidence of domestic violence and expert testimony on the effects of domestic violence without limitation for purpose of determining whether defendant acted in self defense); 22 Okla. Stat. Ann. § 40.7 (1992) (allowing evidence of domestic abuse and expert testimony regarding effects on “beliefs, behavior and perception” of person being abused in civil or criminal action);
6. Tex. Ann. C.C.P. art. 38.36 (Vernon Supp. 2003) (permitting expert testimony on the effects of “family violence” upon state of mind of defendant raising issues of self-defense or defense of another); but see Lane v. Texas, 957 S.W.2d 584 (Tex. App. 1997) (upholding trial court’s exclusion of expert testimony on battered spouse syndrome and refusal to charge the jury on self defense);
7. Utah Crim. Code Ann. § 76-2-402 (allowing trier of fact to consider patterns of abuse in parties’ relationship when determining imminence or reasonableness of use of force in self-defense or defense of another).
8. Massachusetts enacted legislation that provides for the admission of evidence (including expert testimony) of past abuse to establish “the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent, the reasonableness of the defendant’s belief that he had availed himself of all available means to avoid physical combat or the reasonableness of a defendant’s perception of the amount of force necessary to deal with the perceived threat.” Mass. Gen. L. Ann. ch. 233 & 23E (West Supp. 1996). The Massachusetts statute provides for the admissibility of such evidence not only in cases of self-defense, but also in cases when duress, coercion, or accidental harm are asserted as defenses. Id.
This is not to suggest, however, that all states that admit evidence of past abuse do so to the same degree. For example, some states have limited the testimony of experts to a description of the “battered spouse syndrome” and do not allow testimony as to whether a particular defendant suffers from the “syndrome.” See, e.g., State v. Hennum, 441 N.W.2d 793, 799 (Minn. 1989), State v. Grecinger, 569 N.W.2d 189 (Minn. 1997). See also State v. Hickson, 630 So. 2d 172 (Fla. 1993) (holding that testifying expert cannot give opinion based on interview of defendant as to applicability of syndrome to that defendant unless notice of reliance on such testimony is given and state has opportunity to have its expert examine defendant; an expert can generally describe syndrome and characteristics of person suffering from it and can express opinion in response to hypothetical questions). Missouri courts only allow battered spouse syndrome evidence when the defendant was not the initial aggressor in the conflict in question. See, e.g., Lannert v. Jones, 321 F.3d 747, 752–53 (8th Cir. 2003) (“The [battered spouse syndrome] statute does not negate the first element of self-defense, i.e., that the defendant was not the initial aggressor.”). For a thorough discussion of the various judicial approaches states have taken to the admissibility of evidence of past abuse, see Robert Coleman, Criminal Law Chapter: Battered Woman Syndrome, 10 Geo. J. Gender & L. 333 (2009).

California’s use of battered spouse syndrome testimony may be useful in analyzing and contrasting Maryland law. In 1992, the California Evidence Code was revised to recognize the admissibility of expert testimony on “battered women’s syndrome,” with language similar to Maryland’s current statute.

Subsequently, in 1996, the National Institute of Mental Health and the National Institute of Justice issued a report recommending that the use of the term “battered woman syndrome” be discontinued because “it does not adequately reflect the breadth or nature of the empirical knowledge about battering and its effects … [and] portrays a stereotypic image of battered women as helpless, passive, or psychologically impaired, and battering relationships as matching a single pattern, which might not apply in individual cases.” Id. at viii. The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act (1996), available at https://www.ncjrs.gov/app/publications/abstract.aspx?ID=160972.

Effective January 1, 2005, the California legislature amended the California code in response to the changing usage of the term “battered spouse syndrome” within the mental health and legal academic communities. This amended statute expanded the scope of relevant material from evidence of “battered spouse syndrome” to evidence of “intimate partner battering and its effects,” and expanded the applicability of this expert testimony to all violent felonies. See Carrie Hempel, Battered and Convicted: One State’s Efforts to Provide Effective Relief, 25 Crim. J. 24, 25 (2011) (analyzing the revised California code specifically and limitations of “syndrome” terminology compared to “evidence of intimate partner battering and its effects”); Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Women’s Syndrome, 21 Hofstra L. Rev. 1192, at 1195 (1993) (explanation of broad range of battered women’s experiences beyond one syndrome “profile”).

For analysis of how issues of race and class intersect with the traditionally conceptualized image of “battered spouse syndrome,” see Linda L. Ammons, Mules, Madonnas, Babies, Bathwater, Racial Imagery and Stereotypes: The African-American Woman and the Battered Woman Syndrome, 5 Wis. L. Rev. 1003 (1995); Shelby A.D. Moore, Battered Woman Syndrome: Selling the Shadow to Support the Substance, 38 How. L.J. 297 (1995); Michael Dowd, Dispelling the Myths about the “Battered Woman’s Defense”: Towards a New Understanding, 19 Fordham Urb. L.J. 567 (1992); Sharon Angella Allard, Rethinking Battered Woman Syndrome: A Black Feminist Perspective, 1 UCLA Women’s L.J. 191 (1991) (cited in Hempel, supra).

(6) Battered Child Syndrome

While Maryland does not have a statute dealing with the battered child syndrome specifically, the Court of Appeals of Maryland considered the admissibility of expert testimony on battered child syndrome in support of self-defense claims in parricide or attempted parricide cases in State v. Smullen, 380 Md. 233, 844 A.2d 429 (2004). The court reviewed the legislative history of the battered spouse syndrome statute and held that the battered spouse syndrome, as recognized in Md. Code. Ann., Cts. & Jud. Proc. § 10-916, applies as well to battered children. 380 Md. 233, 268, 844 A.2d 429, 449 (2004). While the court ultimately found that the defendant in Smullen did not lay an adequate foundation for admission of evidence of battered child syndrome, the court held that, in Maryland, the battered spouse syndrome has been expanded in scope. It now applies to child defendants who suffered physical abuse preceding parricide or attempted parricide, and who subsequently claim self-defense, seeking to admit evidence of child abuse and its effects or evidence of the “battered child syndrome.” Id. at 268.

Although there are many differences between intimate partner violence and child abuse, there are also many similarities. See Merrilee R. Goodwin, Parricide: States Are Beginning to Recognize That Abused Children Who Kill Their Parents Should be Afforded the Right to Assert a Claim of Self-Defense, 25 Sw. U. L. Rev. 429, at 431 (1996). Goodwin writes: “Although battered children have many distinguishing characteristics from battered women, the resulting physical and psychological manifestations are parallel. The similarities of the syndromes and the acceptance of a self-defense claim by battered women who kill their abusers necessitates using the Battered Woman Syndrome as a foundation for furthering social and legal recognition of the Battered Child Syndrome defense.” Id.

Examining sociological and psychological aspects of child abuse, Hegadorn examines research comparing battered women’s syndrome with battered child syndrome. See Robert Hegadorn, Clemency: Doing Justice to Incarcerated Battered Children, 55 J. Mo. B. 70 (1999). Finding many similarities among victims of intimate partner violence and victims of child abuse, Hegadorn writes:

As in the case of battered woman’s syndrome, researchers dealing with battered children have found that child abuse victims also develop a PTSD and a state of heightened environmental awareness. Battered children frequently develop a “pervasive sense of helplessness that results from feeling trapped in a situation from which they cannot escape.” A battered child’s exposure to long-term abuse has been theorized to cause the child to “develop a characteristic known as hypervigilence.” A child suffering from this induced state of “hypervigilence” develops a painfully intense awareness of his or her environment, and remains always on the alert for danger. Events to which a non-abused child may pay no heed take on frightening significance for the abused child. Subtle changes in the behavior of the abuser can cause the abused child to fear imminent violence. The abused child’s “special perceptions” may demonstrate why the child suddenly “reacts violently in a nonconfrontational situation, even though in past seemingly more threatening situations he or she never acted.”

Id. at 72. Citing Merrilee R. Goodwin, Parricide: States Are Beginning to Recognize That Abused Children Who Kill Their Parents Should be Afforded the Right to Assert a Claim of Self-Defense, 25 SW. U. L. REV. 429 (1996); Hope Toffel, Crazy Women, Unharmed Men, and Evil Children: Confronting the Myths About Battered People Who Kill Their Abusers, and the Argument for Extending Battering Syndrome Self-Defenses to All Victims of Domestic Violence, 70 S. CAL. L. REV. 337 (1996); and Jamie Heather Sacks, A New Age of Understanding: Allowing Self-Defense Claims for Battered Children Who Kill Their Abusers, 10 J. CONTEMP. HEALTH L. & POL’Y 349 (1994).

In other states, the battered child syndrome has been recognized as relevant to crimes committed against an abusive parent. In State v. Janes, 64 Wn. App. 134, 822 P.2d 1238 (1992), the trial court erred in excluding proffered evidence and instructions tending to establish that the youthful defendant in a murder prosecution killed his abusive stepfather after years of abuse. Although holding that a defendant claiming self-defense as justification for the use of physical force must demonstrate that he acted as a reasonable person would have in the same circumstances, the court in State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (Ct. App. 1986), observed that the subjective perceptions of an individual who has been brutalized regularly by domestic violence are especially critical to the determination of whether the individual’s actions in purported self-defense cases were reasonable.

In a matter of first impression, the Minnesota Supreme Court held that admissibility of evidence of “battered child syndrome” was not subject to the Frye-Mack standard applicable to novel scientific evidence; rather the appropriate test is whether the evidence would be helpful to the jury by explaining “a phenomenon not within the understanding of an ordinary lay person.” State v. MacLennan, 702 N.W.2d 219, 233 (2005). The court noted that this holding was consistent with the approach taken by several other states, including Arizona, Maryland, New Jersey, Ohio, and Oklahoma. Id. See Instruction, § 2.25(A), Expert Witness, supra, for a discussion of the requirements in Maryland for expert testimony.

(7) Need for Reform of Maryland’s “Battered Spouse Syndrome” Statute

Since 1996 when Maryland’s Battered Spouse Syndrome statute was enacted (see Md. Code Ann., Cts. & Jud. Proc. § 10-916 (1996)), as discussed in this Comment, supra, an extensive body of scientific and clinical knowledge about the dynamics of domestic violence and traumatic stress reactions has been published. Reflecting this literature, significant developments in the law of other jurisdictions have occurred. For these reasons, it is recommended that the Maryland General Assembly revise the language of the Battered Spouse Syndrome statute.

The California statute provides a good model for revisions. This statute differs from the current Maryland statute in the following ways: (1) “Battered Woman Syndrome” terminology was changed to the gender-neutral and relationship non-specific term “evidence of intimate partner battering and its effects.” This reflects the preferred terminology among legal scholars and mental health experts because it does not require a narrow “syndrome” diagnosis, is less stigmatizing to individual women, and allows for admission of a broader range of behavior recognized by the medical and scientific communities as resulting from exposure to domestic violence; (2) the statute specifies that expert testimony on intimate partner battering and its effects is not a “new science,” thereby avoiding lengthy hearings to admit expert testimony; and (3) the statute applies to all violent felonies, expanding the application beyond the four crimes covered by the Maryland statute (homicide, attempted homicide, manslaughter, and first-degree assault). The expanded application would allow the jury to consider the effects of intimate partner battering in a broad range of criminal contexts. For further analysis of California legal reform related to intimate partner violence, see Carrie Hempel, Battered and Convicted: One State’s Efforts to Provide Effective Relief, 25 Crim. J. 24, 25 (2011).

The full text of the California statute, Cal. Evid. Code § 1107 (2012), is as follows:

§ 1107. Expert Witness Testimony on Intimate Partner Battering and Its Effects
(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.

(b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on intimate partner battering and its effects shall not be considered a new scientific technique whose reliability is unproven.

(c) For purposes of this section, “abuse” is defined in Section 6203 of the Family Code, and “domestic violence” is defined in Section 6211 of the Family Code and may include acts defined in Section 242, subdivision (e) of Section 243, Section 262, 273.5, 273.6, 422, or 653m of the Penal Code.

(d) This section is intended as a rule of evidence only and no substantive change affecting the Penal Code is intended.

(e) This section shall be known, and may be cited, as the Expert Witness Testimony on Intimate Partner Battering and Its Effects Section of the Evidence Code.

(f) The changes in this section that become effective on January 1, 2005, are not intended to impact any existing decisional law regarding this section, and that decisional law should apply equally to this section as it refers to “intimate partner battering and its effects” in place of “battered women’s syndrome.”

The Massachusetts statutory counterpart provides an interesting comparison. Added in 1996, Massachusetts’s law does not require a syndrome diagnosis for admission of evidence of past battering and/or admission of expert testimony on battering and its effect. See also State v. Elzey, 472 Md. 84, 116, 244 A.3d 1068 (2021) (Maryland’s statute addresses the admissibility of evidence of past abuse and expert testimony regarding Battered Spouse Syndrome by the trial court, it does not require the jury to make a predicate finding the defendant suffered from Battered Spouse Syndrome before the jury may consider the evidence in the context of imperfect and perfect self-defense). The statute applies to a broader range of offenses than Maryland’s statute, applying to the defenses of self-defense, defense of another, duress, coercion or accidental harm. The statutory language uses masculine pronouns to convey gender neutrality, and does not require a specific relationship between the abuser and victim of abuse. That is, the proponent of the evidence is not referred to as a “battered wife” or a “battered spouse,” but rather is referred to as a generic “he.” This seems to allow a broader application of testimony on battering and its effects than the current Maryland statute, but with different criteria than the California statute.

The full text of the Massachusetts statute, Mass. Gen. Laws Ann. ch. 233 § 23F, reads as follows:

§ 23F. Admissibility of past physical, sexual or psychological abuse of defendant
In the trial of criminal cases charging the use of force against another where the issue of defense of self or another, defense of duress or coercion, or accidental harm is asserted, a defendant shall be permitted to introduce either or both of the following in establishing the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent, the reasonableness of the defendant’s belief that he had availed himself of all available means to avoid physical combat or the reasonableness of a defendant’s perception of the amount of force necessary to deal with the perceived threat:

(a) evidence that the defendant is or has been the victim of acts of physical, sexual or psychological harm or abuse;

(b) evidence by expert testimony regarding the common pattern in abusive relationships; the nature and effects of physical, sexual or psychological abuse and typical responses thereto, including how those effects relate to the perception of the imminent nature of the threat of death or serious bodily harm; the relevant facts and circumstances which form the basis for such opinion; and evidence whether the defendant displayed characteristics common to victims of abuse.

Nothing in this section shall be interpreted to preclude the introduction of evidence or expert testimony as described in clause (a) or (b) in any civil or criminal action where such evidence or expert testimony is otherwise now admissible.

[230610]