The Statutory Fix for Prior Acts of Domestic Violence

The Admissibility of Prior Acts of Domestic Violence Under the Federal Rules of Evidence

The admissibility of prior acts of domestic violence in federal courts is governed by the Georgia Rules of Evidence (GRE). Specifically, Rules 404, 403, 413–415, and 418 are critical in determining whether evidence of a defendant’s past actions can be introduced in court. The tension between ensuring a fair trial for the defendant and allowing the prosecution to establish patterns of abusive behavior makes this a complex area of law.

Rule 404(b): Character Evidence and Its Exceptions

Under Rule 404(b) of the GRE, evidence of a person’s past crimes, wrongs, or other acts is generally inadmissible to prove character “in order to show action in conformity therewith”. This is also known as propensity evidence and refers to the likelihood or capacity of a person to commit certain offenses.

Indeed, the rule excluding the use of prior misconduct to show a defendant’s propensity to commit the currently charged offense serves at least three key purposes. ?First, it relieves the defendant of the burden of defending against both the charged offense and the other uncharged offenses. ?Second, it promotes judicial efficiency by avoiding protracted mini-trials to determine the truth or falsity of the prior charge. ?Third, it guards against undue prejudice arising from the admission of the defendant’s other offenses.

Rule 404 provides several exceptions where such evidence may be admitted for purposes other than proving character. These exceptions include proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

In cases involving domestic violence, courts have recognized that prior acts may be relevant to show a pattern of behavior, particularly where the defendant claims that the alleged abuse was accidental or isolated. For example, suppose a defendant claims that an injury to the victim was the result of an accident. In that case, the prosecution may seek to introduce evidence of previous similar incidents to rebut this claim under Rule 404(b).

Rule 403: Balancing Probative Value Against Prejudice

Even if evidence of prior acts of domestic violence is admissible under Rule 404(b), it must still pass the balancing test of Rule 403. This rule states that relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or the presentation of cumulative evidence.

In domestic violence cases, courts must carefully weigh the probative value of past acts in establishing intent, pattern, or credibility against the potential prejudicial impact on the defendant. If the evidence is too inflammatory or suggests a propensity to commit crimes rather than establishing a legally recognized exception, courts may exclude it under Rule 403.

Rules 413–415: Special Exceptions for Sexual Assault and Child Molestation Cases

While Rule 404 generally prohibits propensity evidence, Rules 413–415 create exceptions in cases involving sexual assault and child molestation. These rules allow evidence of prior similar acts to be admissible to demonstrate the defendant’s propensity to commit such offenses. Although these rules do not explicitly cover domestic violence, they have influenced courts’ reasoning in allowing evidence of prior domestic violence under certain circumstances.

The Problem of Domestic Violence and Recidivism

Recidivism?refers to the likelihood that a person who has committed a crime and been incarcerated will return to jail or prison for committing another crime.?Domestic violence offenders?have?higher recidivism?rates than many other convicted felons.?

Some jurisdictions, like Michigan, have pushed for similar legislative amendments to explicitly include domestic violence in this category, arguing that domestic violence, like sexual assault, often follows a pattern of escalating behavior and repeated victimization. Many jurisdictions require distinct elements for the admission of prior acts of misconduct. Some states, like Colorado, Minnesota, Oregon and Washington, limit the consideration of prior act evidence to incidents involving the same victim, or a similar crime.?Other states, Like Oklahoma, require the abuse to be ongoing, occurring with sufficient frequency and recency to give rise to an expectation of recurrence. California recently expanded the consideration of prior act evidence by creating a specific exception permitting evidence of the defendant’s commission of prior acts of domestic violence.?

The Landscape in Georgia

This week, in the case of Harris v. State, the Georgia Supreme Court reversed a murder conviction of a defendant who stabbed his girlfriend to death. That defendant had previously committed an Aggravated Battery against a prior girlfriend some 5 years beforehand. The Georgia Supreme Court (Justice Lagrua dissenting) rejected the State’s rationale that such evidence was related to the “motive” of "control" and determined that the evidence was substantial more prejudicial than probative and, thus, was admitted in error.

As such, across this state, it just got more difficult to introduce evidence of prior acts of domestic violence in Georgia.

That’s unfortunate. According to the National Institute of Health, domestic violence, intimate partner abuse, and elder abuse is a common problem in the United States. Family and domestic health violence are estimated to affect 10 million people in the United States every year.

?What the Georgia Needs to Do

In 2022, Senator John Albers , a thought leader in the Georgia legislature, introduced SB 359 known as the “Safe and Secure Georgia Act.” Section 11 of that bill provided in pertinent part:

In a criminal or civil proceeding in which the accused is accused of family violence, … evidence of the accused's commission of any other? family violence or domestic abuse shall be admissible and may be considered for its? bearing on any matter to which it is relevant.

The bill did not pass the Georgia House that year. However, it is a common sense measure and would allow Georgia to join a growing list of states that allow such. It would also statutorily overrule the Harris decision. It is time to revisit this.

Conclusion

The admissibility of prior acts of domestic violence in Georgia currently depends on the application of the Georgia Rules of Evidence, specifically Rule 404(b) and Rule 403. It’s time to refine our approach to the admissibility of prior acts in domestic violence cases to provide better protection to our victims.

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