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

Police officers answered a domestic dispute, and the suspect was fatally shot by police.

When the officer arrived on scene, he encountered a woman outside a home.

It was reported that the woman threatened to shoot herself and a friend who was still inside the home with another person.

The officer allegedly believed that the woman was aiming a handgun at him. As a result, he shot, and killed her.

This unfortunate ordeal ended horribly wrong. It was the very worst possible scenario for the suspect.

Other adverse consequences occur. These include the high risk of criminal charges being brought against those involved in the domestic dispute.

The four types of charges often coupled with domestic violence crimes are weapons misconduct, aggravated assault, disobeying police orders, and domestic violence charges.

In this article, we will discuss four types of criminal charges often associated with domestic disputes, that put a person at risk for harm or fatality, as well as risk factors, and criminal defense for the charges.

Any one or more of these criminal charges, in absence of injury can be life altering.

Convictions can jeopardize your freedom, leaving you with a long standing criminal record.

1) Aggravated Assault Charges

An aggravated assault is a felony in Arizona.

Misdemeanor assaults and aggravated assaults are differentiated in that they are either felonies or misdemeanors.

While both types of assault are serious, aggravated assault convictions carry very harsh punishments.

Like weapons misconduct, felony assaults charges can be brought in a number of situations. Any assault that involves the use of a deadly weapon may also be charged as aggravated assault.

A deadly weapon includes any object designed for lethal use, including unloaded firearms.

This does not include permanently inoperable firearms. The definition of firearms also does not include a toy weapon.

The prosecution will have to show that a deadly weapon was used to intentionally, recklessly, or knowingly cause a physical injury to somebody else; placed someone else in reasonable apprehension of being physically injured; or knowingly touch somebody else with the intent to injure, provoke, or insult that person.

Any misdemeanor assault against a peace officer who is engaged in performing official duties can also be charged as an aggravated assault.

When an aggravated assault is based on an assault on a peace officer engaged in his job, charges are brought as class 2 felonies. A presumptive term for a class 2 felony is five years, and an aggravated term is 12.5 years.

2) Weapons Misconduct Weapons misconduct refers to criminal offenses that involve a deadly weapon.

Weapons crimes can be brought when a person knowingly carries a concealed deadly weapon other than a pocket knife, while committing a serious offense or felony.

They can also be brought when a person fails to respond correctly, as to whether or not they are carrying a concealed deadly weapon, upon inquiry by a police officer.

There are numerous ways weapons misconduct can result in a criminal record under Arizona Revised Statute section 13-3102.

In the former situation, weapons misconduct is charged as a class 6 felony.

While, these are not punished as harshly as other felonies in Arizona, they still call for prison time.

The presumptive term for a first-time offender’s conviction for a class 6 felony is one year, while an aggravated term is two years.

However, depending on the circumstances, it is sometimes possible to negotiate to get the felony turned into a class 1 misdemeanor with a lighter sentence.

Failing to answer a police officer accurately about a concealed deadly weapon is a class 1 misdemeanor.

The penalties are not as serious, but you can still end up with a criminal record that affects your ability to secure employment, professional licenses, and housing and it could affect the outcome of future criminal charges.

3) Domestic Violence Charges

In Arizona, according to statistics from the National Coalition for Domestic Violence (NCAVD), the presence of a gun, in the home, increases the chance of fatality by 500 percent. Domestic violence can be a felony or misdemeanor. This determination is made based on the actual crime that was committed.

Some examples include assault, sexual assault, criminal trespassing, violation of a restraining order, neglect, delinquency of a minor, stalking, harassment, incest, and other crimes against a child.

Whether or not the crime is one of domestic violence is determined by the nature of the crime and the relationship between the victim and the accused.

Relationships described in Arizona Revised Statutes 13-3601 include, but are not limited to those between current or former spouses, parents, children, grandparents, siblings, those involved in a romantic relationship, co-habitants, those either related, or in a present or former relationship that do not live together.

In Arizona when charges are brought for a third domestic violence incident, within 7 years, the charges are raised to a felony. This is the case, even if the violation was a misdemeanor.

If a deadly weapon such as a gun is displayed in a domestic dispute, while a person under the age of 15 is present, the suspect will be arrested.

This is the case, whether or not the weapon was used.

It is also the case, whether or not the police officer actually witnessed the display of the weapon. In any event, probable cause would be needed in order to make a lawful arrest.

Under Arizona’s domestic violence law, the police officer’s discretion, they have may seize a firearm temporarily if they learn that one is on the premises, and feel it poses the threat of harm under the circumstances.

In some situations one or more parties will turn on police.

When police are not sure which person is the aggressor, they will often arrest both individuals involved in the dispute.

For the victim, this is adds insult to injury causing a person to become angry and combative towards police.

4) Failure to Obey Police Orders

Arizona Revised Statute section 28-622 prohibits someone from failing to comply with a police officer who has the authority to direct, control, or regulate traffic.

In the incident described above, the woman could have been charged with a failure to comply if the police officer had asked her to put the toy gun down, even though it was not a real firearm.

A failure to obey a police officer is a class 2 criminal misdemeanor.

A class 2 misdemeanor can be punished with a term of imprisonment for a maximum of four months.

High Risk Factors in Domestic Disputes

A recent report was issued by the National Law Enforcement Officers Memorial Fund, which concluded that the deadliest police encounters involve domestic disputes.

Following a recent 5 years study, 684 officer deaths in the line of duty were analyzed. Of those, twenty percent of the officers died of rifle gunshot wounds.

Some of the reasons for this include an escalation of emotions, which is often accompanied by a decrease in logical thinking and reasoning, those involved.

Officers often find it necessary to arrest, or remove one or more of those involved from the home following a heated argument, for the safety of the occupants.

An order from police for one of the parties to leave their own home is often met with resentment and opposition. This alone, can be dangerous for both police and the suspect.

When alcohol and drug abuse is involved, judgment is impaired, which results in increased risk of harm or fatality.

According to statistics from the National Coalition for Domestic Violence, 72% of all murder-suicides in the United States involve intimate partners.

Further, statistics indicate that the existence of an accessible firearm, in the home increases the chance of fatality by 500 percent.

That risk increases to 2,000 percent if there has been a prior history of domestic violence among the individuals.

The officers are well aware of these dangers and exercise vigilance. They often call for back-up officers, for their own protection when called to a domestic dispute.

The police investigation into a domestic dispute begins before they even arrive on scene. When they receive a dispatch for a domestic violence call, one of the first things they do is a background check to see if police have been to the house in the past or if there are prior convictions.

When officers feel threatened, they generally will not take any chances.

Police officers are trained to use force if needed to defend themselves.

This can happen even if what they perceive as a threat, later ends up not being a real threat of harm to the officer.

Criminal Defense Attorney for Aggravated Assault, Weapons Misconduct, Failure to Obey Police Orders, Domestic Violence Charges in Phoenix AZ

If you simply plead guilty, without the guidance and retention of a qualified criminal defense attorney, you will be exposed to a swift conviction and harsh penalties.

It is important in all of these situations to retain experienced legal advocate who can fight for your rights, and provide a strong criminal defense.

No matter how serious your charges may be, you have the right to defend them.

In addition, to protecting your rights, and making sure you are treated fairly, an effective criminal defense attorney may be able to apply specific defenses in your case.

Depending on the circumstances, and strength of the evidence surrounding them, defense strategies can be mounted which can lead to a favorable outcome of your case.

Often, there are mitigating circumstances or facts that can be used to negotiate with the prosecution for a plea deal. In some cases, it may be possible to win at trial by establishing a reasonable doubt.

If your rights were violated or evidence was obtained unlawfully, it often can be suppressed to that it cannot be used to prosecute you.

James Novak, of the Law Office of James Novak, is an experienced criminal defense attorney, and former Maricopa County prosecutor.

Attorney, James defends charges of aggravated assault, failure to obey police orders, domestic violence, and weapons misconduct charges on a regular basis.

If you face active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert or Scottsdale Arizona, James Novak will can provide you with a free and confidential consultation regarding your matter.

If retained, he will tailor and provide a strong defense on your behalf and work to resolve your charges.

Call (480) 413-1499, or contact James Novak today to personally discuss your options for your defense.

Additional Resources:

• Arizona Revised Statutes section 13-3102 (misconduct involving weapons)
• Arizona Revised Statutes section 13-1204 (aggravated assault)
• Arizona Revised Statutes section 28-622 (failure to comply with a police officer)
• Arizona Revised Statutes section 13- 3601 (domestic violence)
• Phoenix Superior Court
• National Law Enforcement Officers Memorial Fund | Police Deadly Encounters

More Articles:

• Aggravated Assault: The High Cost of Harming a Police Officer,
• Assault Convictions Require “Intent” and “Knowledge” or “Recklessness”
• Failure to Comply with Police Orders and Constitutionality Challenges