Profiling evidence and “cold” expert witness testimony is not always admissible. The decision about admissibility is a decision for the court. When making this determination the court will consider the rules of criminal evidence, content, relevance and objectivity of the testimony.

If improper witness testimony is admitted, it can potentially lead to an unfair guilty verdict. Therefore, proper challenges should be made as to the admissibility of planned expert witness testimony.

The Arizona Supreme Court recently ruled on a case in which the state sought to provide the jury with perspectives of why victims often change their stories about the incident that led to the charges. In it, the Court allowed general testimony from a “cold” expert witness, but restricted the testimony to a list of general questions.

The defendant was found guilty of aggravated domestic violence, kidnapping and influencing a witness. On appeal the defense argued that the expert’s testimony shouldn’t have been admitted because it was impermissible profiling evidence

Case Overview

The charges were brought against the defendant after his girlfriend was assaulted.

The victim initially reported that the defendant assaulted her at her hotel, after he found texts on her phone, which led him to believe she was cheating on him.

She stated that he strangled her, and that there was physical evidence to prove it. The defendant was later arrested for the incident.

Soon after the defendant was arrested, the victim wrote two letters in which she retracted her earlier statements that included allegations of assault and domestic violence.

In the letters she stated that her injuries resulted were the result of a bar-fight, not domestic violence. But she indicated that she was unable to recall details of the incident.

The prosecution moved to admit testimony by a doctor who had expertise on domestic violence. The purpose of the expert’s testimony according to the state, was to help the jury understand why the victim had continued her relationship with the defendant, provided contradictory statements after the initial report.

The defendant objected to the proposed testimony arguing that it would not help the jury, and would instead serve as unfair profiling. Following a hearing on the issue, the court decided to allow the doctor’s testimony on a limited basis, by admitting only answers to a list of questions.

At trial the prosecution used incriminating evidence of the defendant’s recorded telephone conversations with the victim. In the phone calls, the defendant apologized to the victim, and gave her a different story to tell the police. He also promised to marry her after his release from custody. In the recordings the victim told him that he should not have tried to kill her. The victim later testified at trial that she didn’t know who beat her up because she had been drinking. She also testified at trial that the defendant acted out of jealousy because she cheated on him.

The expert testified that she hadn’t reviewed any evidence in this particular case, but could provide general information into behavioral tendencies observed in some victims of domestic violence. One question posed to the expert was whether or not it was usual for a victim assaulted by a domestic partner to continue the relationship with the abuser. She replied that it was common, and that there were a number of reasons for this depending on the circumstances of the relationship.

The doctor noted that typically victims continued their relationship with the assailants due to threats, retaliation or fear. She explained that some would stay with the abuser because other family members might pressure them to stay. The doctor also testified that it was common for victims to blame themselves, and change their story about the actual events that took place. The same factors applied in those situations where the victim would later attempt to help the defendant get their criminal charges dismissed.

In final remarks, the prosecution instructed the jury to make no comparison of of the expert’s opinion and the facts of this case, and that the jury was not be bound to the expert’s testimony. The jury was instructed only to give it the weight they believed it deserved.

The jury found the defendant guilty of aggravated assault, aggravated domestic violence, influencing a witness, and kidnapping. The decision was affirmed by the Arizona Appeals Court.

The Arizona Supreme Court agreed to review the case and whether the expert’s testimony served as improper profiling.

The Court explained that profile evidence is submitted to show a defendant has one or more of a group of characteristics that are typically shown by someone engaged in a certain activity. The prosecution is prohibited from providing profile evidence as substantive proof of guilt. Doing so presents a risk of conviction not for the defendant’s own actions but for actions of others.

Expert testimony which explains inconsistencies by the victim is permissible for the purpose of judging the victim’s credibility. In this case, the questions were asked of the expert to help the jury understand the counter intuitive behaviors sometimes observed in victims involved in abusive relationships.

The Arizona Supreme Court explained any prejudice from the doctor’s testimony was slight, and didn’t outweigh its probate value. The evidence revealed some traits about which the doctor had testified. It noted that Arizona courts should consider the prejudicial effect of the testimony as a whole as well as each statement.

The Court advised that significant caution should be used to deciding to admit this type of evidence and admitted only on a limited basis. It affirmed the convictions and sentenc

What is a “Cold” Expert?

A “cold” expert describes a witness that provides testimony on a subject in order to give the jury insight into a particular topic, without applying it to the facts of a case.

Arizona’s Rule of Criminal Evidence 702 allows for testimony by a witness who has expertise that will help the jury understand certain topics in order to serve the purpose of fact finding.

In Arizona v. Salazar- Mercado, 2014, the Arizona Supreme Court decided that testimony of a “cold” expert was permitted in domestic abuse cases.

The Court examined this issue citing State of Arizona v. Haskie Jr., 2017 to clarify that admissibility of “cold expert” testimony should not be automatic. It held that it should only be allowed with analytical support; should be restricted to testimony within the scope witness’s expertise; be unbiased; and apply within the boundaries of Arizona Rules of Criminal Evidence.

What is Criminal Profile Evidence?

Profiling evidence is information or testimony that is offered by an expert witness that points to patterns, characteristics, or behaviors typically observed in offenders who commit certain crimes.

The nature of the evidence may vary. Examples of common profiling evidence include psychological, forensic, or physiological evidence.

Profiling evidence may be provided by psychologists, forensic psychologists, crime scene investigators, or drug enforcement officers, and other law enforcement officers. The expert witness provides information on common behaviors or characteristics observed in an individual that are typical to those displayed by other offenders of a specific type of crime.

The practice of profiling is often used by police and drug enforcement agencies to target drug couriers. The state often seeks to seek to admit the profiling evidence in some fashion with drug crimes, domestic violence, assault, sexual assault, and other violent crimes.

When is Offender Profiling Evidence Admissible?

In Arizona, testimony from an expert may be admitted as long as it is not unfairly prejudicial or misleading. It must also be relevant, and fitting for the purpose it serves.

In this case, the Arizona Supreme Court held that the testimony from the expert was admissible because its purpose was to prove a different element of the charges. That is, the state used the testimony to educate the jury about why victim in abusive relationships sometimes change their testimony or decide not to testify against the defendant.

The Arizona Supreme Court emphasized that careful consideration is needed when considering whether or not to admit cold expert testimony. It advised that even though the testimony was allowed in this case, there was still a risk that it would imply that the defendant was guilty.

The Court held that if the testimony is found to be admissible, the defense can move to restrict jury instructions by explaining the limited reasons for introducing the expert testimony.

In this case the Court cited decades of precedent cases holding that expert profiling testimony cannot be used as a deciding factor to determine a defendant’s guilt or innocence.

It also held that expert that offer general testimony without knowing the facts of the case, are prohibited from generalizing about typical incidents without verifiable backing.

The Court allowed for restrictive testimony based on a list of questions for a cold expert testimony to offer reasons why victims sometimes change their story.

Other holdings in this case included the fact that even if an expert’s testimony has the possible impact of profiling, it should not automatically be inadmissible.

In determining the admissibility of expert testimony court must rely on the Arizona Rules of Criminal Evidence, the context of the testimony, and use exceptional care to make sure it is not inappropriate.

The expert’s profiling testimony must be relevant. If the testimony is relevant, it may still be inadmissible if its bias considerably outweighs the purpose it serves as well as its impact on the entire case.

Decisions in this case may be cited as precedent in Arizona Courts in deciding similar questions in future cases that arise.

Why do I need Criminal Defense for Domestic Violence Charges in Mesa AZ?

Domestic violence charges occur frequent but can involve serious underlying crimes. Under Arizona Law A.R.S. 13 – 3601 Domestic Violence is a charge used to describe a relationship involving two or more persons involved in a dispute that results in a crime. Some offenses the commonly occur in domestic dispute situations include disorderly conduct, assault, aggravated assault, kidnapping, and weapons misconduct.

The mere accusation of domestic abuse, can have serious consequences. Often when police arrive on scene of a domestic violence charge, they get conflicting stories from witnesses or those involved. As a result, they sometimes will arrest both parties even though one of the individuals involved is innocent.

When the City of Mesa AZ police are called on to a domestic violence scene, they will conduct a background check to see if there is a trend of domestic violence calls to the residence. If so, the chances increase that they will make an arrest of one or both of the individuals involved in the dispute.

In any case it is important to retain an experienced domestic violence criminal defense attorney to represent you, make sure your rights are protected and defend your charges.

As an alternative to trial the state may offer diversion programs to help you avoid a conviction or incarceration. If eligible, in the case of domestic violence or assault, Maricopa County may offer you the opportunity to participate in anger management classes as an alternative to prosecuting the charges. When the rehabilitation program is completed successfully, the charges may be dismissed.

If you are not eligible for a rehabilitation program or one is not otherwise available based on the charges, you still have the right to take your case to trial.

A number of defenses may be available to get your charges dismissed or resolved to avoid being convicted of the crime.

For example some people charged with domestic violence coupled with assault charges might have been acting in self-defense due to the imminent threat of physical harm to themselves or a third party who was unable to protect themselves.

Occasionally there are situations in which the victim’s testimony contradicts audio or video recorded facts.

If your rights were violated, or the evidence against you is weak, your criminal defense attorney may file a motion with the court to prohibit the evidence from being used against you.

If favorable evidence or circumstances exist it may support your innocence, or lesson the charges or sentencing.

In order for a person to be convicted of domestic violence or assault, their actions must be intentional. If the victim’s injury was purely the result of an unintended accident, no criminal liability exists.

The defenses that can be used in your case will be based upon the circumstances and evidence surrounding your charges.

An arrest or criminal charges are merely the beginning of the criminal justice process, not a conviction. If you face domestic violence charges you should seek legal representation for your charges as soon as possible.

James Novak of The Law Office of James Novak is a domestic violence defense attorney who represents clients with active domestic violence charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you were arrested for domestic violence contact or call the Law Office of James Novak today for experienced and proactive legal representation (480) 413-1499.

Additional Resources

• A.R.S § 13-3601.02 (Aggravated Domestic Violence)
• A.R.S § 13-2802 (Influencing a Witness)
• A.R.S § 13-1204 (Aggravated, Felony assault)
• A.R.S § 13-404 (Self- defense justification)
• A.R.S § 13-1304 (Kidnapping)
• Maricopa County Adult Probative Domestic Violence Program
• Maricopa County Domestic Violence Resources
• City of Mesa Police – Family Violence Unit
• Arizona Department of Economic Security – Domestic Violence Program
• City of Phoenix Police – Domestic Violence FAQs
• Arizona Rules of Evidence – 105
• Arizona Rules of Evidence – 401
• Arizona Rules of Evidence – 403
• Arizona Rules of Evidence – 703

Additional Articles of Interest

• 4 Deadly Charges that Arise from Domestic Disputes
• What You Should Know about Threats, Guns and Assault Laws
• How to Protect Your Rights in Plea Deals and Deferred Prosecution
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested

Assault charges may be brought as Misdemeanor or Felony charges. Both are serious offenses in Arizona if convicted. If you were arrested, you have the right to defend your charges. This is the most effective, if you retain an attorney to protect your rights, and provide a defense on your behalf. In order to prosecute the State will need to prove beyond reasonable doubt that you purposefully; intentionally, or recklessly assaulted another person.

Definitions A person may be guilty of Misdemeanor Assault under A.R.S. § 13-1203 if their conduct knowingly, intentionally or recklessly:

1. Causes physical injury to another person;

2. Places another person in reasonable apprehension of present physical injury; or

3. Touches another person with the intention to insult, provoke or harm them.

Misdemeanor Classifications for Assault

• A.R.S. § 13-1203 1. Class 1;
• A.R.S. § 13-1203 2. Class 2;
• A.R.S. § 13-1203 3. Class 3

Sentencing for Assault in Phoenix AZ

Prison terms to do apply to Misdemeanor convictions in Arizona. However, under A.R.S. § 13 – 707 sentencing can include jail terms of six months in jail for a Class 1 Misdemeanor; Four months in jail for a class 2 Misdemeanor; and thirty days in jail for a class 3 misdemeanor.

Fines and Penalties for Misdemeanor Assaults

Fines for A.R.S. § 13 – 802 Misdemeanor will be ordered by the court of not more than the following amounts for individual convictions (excluding enterprises): A. Class 1 – up to $2,500.00; B. Class 2 – up to $750.00; C. Class 3 – up to $500.00 Other penalties may include assessment fees;, court costs; restitution to the victim; terms of probation; community service and/or anger management counseling.

Burden of Proof

For the Police to make an arrest, they must have “probable cause” to believe that a crime of assault was committed and that the suspect was the one who committed it. An arrest, however is not a conviction. In order to prosecute a person for assault the state of Arizona and its prosecution must prove “beyond a reasonable doubt” that a person’s conduct was purposefully intended; with knowledge; or recklessness harmed another person. This means that objective evidence will be needed. Such evidence can include consistent eye witness statements, photos, surveillance footage, DNA testing results and other material evidence.

Assault Lawyer for Defense Phoenix AZ

It is critical that you retain experienced legal representation if you face any type of assault crime. There may be defenses that you are not aware of that if used may lead to a partial or complete dismissal of charges, or reduction of sentencing. Every case has its own set of circumstances, for which certain defenses are effective. You should consult an attorney who defends assault charges on a regular basis, in the jurisdiction where you were arrested, to discuss you matter and defense options. They will advise you further if retained.

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI & Criminal Defense Serving Tempe, Phoenix,Mesa, Chandler, Gilbert, Mesa, Scottsdale, AZ Free Consultation! Call (480) 413-1499