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Chris Frey - Domestic Physical Abuse

Domestic Physical Abuse: A Proposed Use for Evidence of Specific Similar Acts in Criminal Prosecutions to Corroborate Victim Testimony

by Stuart H. Baggish and Christopher G. Frey

On any given day, on television, radio, and in the newspapers, we are exposed to a horrifying array of domestic violence and its resulting devastation. Although the domestic violence problem seems to be well acknowledged, it appears resistant to dissipation. This article proposes a means for more effective prosecution of domestic offenders through admission of similar fact evidence relating to prior instances of abuse for the purpose of corroborating the testimony of the victim of the charged offense.

Currently, the use of collateral act evidence to corroborate victim testimony is permitted only in certain types of child sexual abuse cases. However, the rationale for admission of such evidence in those cases applies equally to partner abuse cases.

Both familial child sex abuse cases and domestic violence cases are difficult to prove because of a reluctance among victims to cooperate with prosecution. In Florida, an estimated 85 percent of domestic violence cases reported are not prosecuted, either as the direct result of victim noncooperation,3 or the insufficiency of admissible evidence with which to prove the case. In many instances, a domestic violence case, like a familial child sex abuse case, cannot be successfully prosecuted if the victim  is unwilling to testify since most of these crimes are committed in private, behind closed doors, and beyond the view of independent witnesses.

Many victims of repeat domestic violence, like child victims of family-related sexual abusers, are hesitant or unwilling to participate in the prosecution of persons who prey upon them for many reasons. Many victims who are involved in abusive family situations feel trapped or obligated to remain associated with their abuser. These victims are not masochists. They may feel that the prosecution of their spouse, parent, custodian or companion will leave them financially unable to survive. Others feel bound to the relationship because of their subjective shame, religious beliefs, or substance dependencies. Some feel obligated to protect their custodians or partners from developing criminal records, all the while jeopardizing their own safety. Perhaps the most often stated reason for a victim's reluctance to cooperate with prosecution is fear. Victims of repeat abuse often fear losing their relationship with their abuser,4 retribution,5 or suffering further abuse from a criminal justice system in which they have little or no faith.6

Insofar as victims may fear losing their relationship, many feel that their abuser can be "changed" without the interference of law enforcement and the judicial system. It is only when the abusive episodes recur that the immediate need for legal assistance is again deemed necessary. Frequently, the victim will balk at the idea of prosecuting, and the cycle of abuse will continue.5 In many cases, the abuser persuades the victim not to prosecute by promising anything from gifts to voluntary counseling attendance, thereby convincing the victim that the mistreatment has finally come to an end. Normally, the likelihood of true "change" occurring diminishes proportionately to any reduction of the bond set on the abuser's incarceration. Generally, there is little that law enforcement can do to persuade the victim to follow through with prosecution if others in the criminal justice system do not force him to be accountable.

Numerous victims of repeat familial child sex abuse and repeat domestic violence refuse to cooperate with criminal prosecution because they fear retribution from their abusers, and fear that the criminal justice system will fail to protect them from further emotional harm brought on by the abuser or cross-examination by defense counsel. Victims may fear that their cooperation in a case will lead to frustration and embarrassment as defense attorneys attack their credibility before the jury with accusations of contrived horror stories targeting the "innocent" alleged abuser. They may fear being portrayed as a vindictive child with ulterior motives, or a deceptive "woman scorned" seeking to destroy a harmless, caring man for selfish reasons, without being allowed to defend themselves by disclosing true incidents of past abuse committed by the defendant. The result can be the defendant leaving the courtroom free to return to his abusive ways. These fears, too often, are justifiable.

The Florida Rules of Evidence prohibit the admission of similar fact evidence in criminal cases for the purpose of proving a defendant's propensity to commit the crime charged. Such evidence, however, is admissible when relevant to prove a material fact other than propensity, most often motive, opportunity, intent, preparation, scheme or plan, knowledge, identity, and lack of mistake. Often lost in the practical application of F.S. §90.404(2Xa) is the fact that the rule prohibits the use of "character evidence" for only one purpose: proof of a defendant's propensity to commit criminal acts. The converse of this allows that such evidence should be admissible to prove any other relevant material fact.8 The ultimate test of admissibility is, as with any other type of evidence, relevancy, not necessity, and the test of inadmissibility is irrelevancy.9

Many case law constructions of F.S. §90.404(2Xa) would seem, however, to preclude a victim of domestic violence from revealing, at trial, incidents of prior abuse committed by a defendant. Nonetheless, courts, in concert with a deliberate effort by state attorneys, can resolve this dilemma in much the same way as in familial child sex abuse cases.

The Current State of the Law 

In 1987, the Florida Supreme Court expanded the list of admissible applications of similar fact evidence. In recognizing the unique difficulties inherent to the prosecution of familial child sex abuse cases, the court carved out a specific exception to the admonition in F.S. §90.404(2) against the use of similar fact evidence to prove criminal propensity by way of bolstering victim testimony. In Heuring v. State, 513 So. 2d 122 (Fla. 1987), the Florida Su-preme Court approved of the admission, during the state's case-in-chief, of similar fact evidence regarding collateral acts of child sex abuse committed by the defendant 20 years prior to the charged offenses of capital sexual battery. In so doing, the court recognized that, although similar fact evidence must generally meet a strict standard of relevance, cases involving sexual batteries within the context of a familial setting need not meet the same stringent requiremen ts.19 In reaching its conclusions, the Heuring court expanded the customarily admissible purposes for similar fact evidence to include evidence that simply corroborates a child sexual battery victim's testimony.

The Heuring decision addressed the aforementioned obstacles that generally exist in familial child sex abuse cases. In so doing, the Florida Supreme Court implicitly made a principled decision that the need for interdiction of such insidious offenses overwhelms the need for exclusion of similar fact evidence, and found that allowing similar fact evidence to be used to bolster the victim's testimony is a better practice than forcing the prosecutor to jump through the traditional legal hoops necessary to show relevance to motive, scheme, plan, or design.12

In familial child sex abuse cases, as in domestic violence cases, the victim is related to the offender or, at least, knows the offender, and identity is not at issue. Because identity is not at issue, this most prevalent reason for admission of similar fact evidence in other types of cases simply does not apply.13 The most important purpose for similar fact evidence that pertains, typically, is the victim's credibility. Because the victim is normally the only witness to the abuse, the victim's credibility becomes the heart of the prosecution.

A year after its decision in Heuring, the Florida Supreme Court restated the general rule of admissibility of similar fact evidence in Bryan v. State, 533 So. 2d 744 (Fla. 1988). In Bryan, the court clearly stated that evidence of other crimes or bad acts is admissible if merely relevant,'4 and admissibility is not dependent on a showing of striking similarity.15 The court further opined that the rule requiring proof of similarities prior to admissibility is a special application of the general rule that all evidence is admissible unless specifically excluded by a rule of evidence.16 Although Bryan was a first degree murder case, and did not involve child sexual abuse, its interpretation of the similar fact evidence rule applies equally in the context of capital sexual battery prosecutions.

In Lazarowicz v. State, 561 So. 2d 392 (Fla. 3d DCA 1990), the Third District Court of Appeal held that testimony as to uncharged acts of physical violence committed by a defendant upon a familially related child victim is relevant, and therefore admissible, not only to corroborate the victim's testimony, but also to show that the defendant occupied a position of familial authority over the victim, and to explain the victim's behavior over the period of time during which the alleged criminal acts took place. Such testimony, if available, is crucial to explaining the reasons for the considerable passage of time between the commission of the offense and the date when it was reported by the victim.17

Although Heuring seemingly stands for the proposition that the diminished standard of admissibility only applies in cases involving intra-familial child sex abuse, in 1991 the Heuring test of familial custody was expanded to allow for the admission of similar fact evidence regarding sexual abuse of persons other than the defendant's familial relations.18 Evidence of such acts is admissible when the molester can be shown to have exercised some type of quasi-parental supervision of children other than his own.19 In Bierer v. State, 582 So. 2d 1230, 1232 (Fla. 3d DCA 1991), the Third District Court of Appeal recognized the legislature's intent to protect minor children from the predatory influences of adults who have established family-type ties with them, and held that daily supervision of neighborhood children sufficed as "care within the broad familial context." Although Bierer dealt with the propriety of joinder, rather than admission of collateral act evidence, it would, nonetheless, follow that this expansive definition of "familiar relations would apply to the admission of similar fact evidence, given that the requirement of proving similarity is even more rigorous in the context of joining charged offenses.2° An even more inclusive judicial interpretation, from the Fifth District, encompasses situations where the offender simply has frequent contact with the child victim.21

The same concerns which led the courts in the Heuring line of cases to reason that similar fact evidence may be admitted to corroborate victim testimony in child sex abuse cases pertain, to the same degree, to domestic violence cases.22

Proposed Expansion of the Heuring Rule

In domestic violence situations, identity is not at issue because, invariably, the victim knows the abuser all too well. As with child sexual abuse within a "familial" setting, the abuser occupies a position of dominance, control, and authority over the victim. The abuser typically uses this advantage to manipulate the victim and to preserve the secrecy of the violence which permeates their relationship. The Heuring line of cases strips child molesters of their safe harbor by denying them the opportunity to profit from the exertion of duress against the victims within their grasp. All of the reasons which justify the use of collateral act evidence in child sex abuse cases apply in domestic violence cases; however, courts have not yet extended the Heuring rule to such cases. When courts fail to recognize that the same need to lend the victim a voice exists in domestic violence cases, they, perhaps inadvertently, assist the proliferation of domestic abuse. For this reason, it seems both timely and logically consistent to extend the admission of specific similar act evidence for the purpose of corroborating victim testimony to cases involving domestic abuse allegations.

The instantly contemplated expansion of the fundamental principles and sound reasoning of Heuring to include domestic violence situations does not eviscerate the prohibition against the use of "character evidence" to prove criminal propensity. The primary issue for which the admissibility of collateral domestic violence occurrences is relevant is the credibility of the victim. This, of course, presupposes that the victim will testify against the defendant at trial 23 Should the victim's credibility not be attacked by defense counsel, then evidence of other instances of abuse would be irrelevant, and would remain inadmissible.24

Typically, in domestic violence trials, the most common defenses interposed are those of self-defense, mistake, accident, and fabrication. In cases in which a defendant asserts self-defense, should the victim's testimony include evidence supporting a theory of self-defense, e.g., the victim testifies that she was attacking the defendant when he responded by beating her, defense counsel would not necessarily need to attack the victim's credibility. Self-defense claims presuppose a defendant's admission that he has committed the allegedly criminal acts, but advance the theory that the defendant was justified in doing so, and that the defendant used only that amount of force necessary to protect himself. In such cases, the heart of the prosecution is not the victim's credibility.25 The key issue is whether the defendant's response was reasonable and justified. Because the victim's credibility would not likely be a material issue, the use of collateral act evidence in self-defense cases would, in most instances, be superfluous and inadmissible.26

Cases involving the defenses of mistake and accident similarly presuppose the defendant's admission to the allegedly criminal conduct, but contest the existence of criminal intent. In such cases, the rules of evidence already provide for the admission of similar fact evidence,27 irrespective of the expansion herein proposed. Because the prosecution would be permitted to utilize collateral act evidence in this situation in any event, the proposed modification of the Heuring rule would not affect such cases, either adversely or otherwise from a defense perspective.

An expansion of the Heuring rule to encompass domestic violence cases will serve only to balance the scales in cases in which fabrication is used as a defense. As in child sexual abuse cases, the defense of fabrication necessarily focuses upon the credibility of the victim. In such cases, this is where all of the victim's fears and apprehensions of being abused and abandoned by the judicial process come to fruition.

Trials of domestic violence cases demand the presentation of victim testimony because of the nearly ever present lack of independent witnesses to the actual abuse. When a victim takes the witness stand, she can justifiably anticipate that her testimony will be limited to charged instance(s) of abuse, and will not be permitted to disclose a complete and accurate picture of the dynamics of the abusive relationship. For the jury, this creates a false perception of the relationship as one which is normal,28 with all of the attendant proscriptions against violence. This places the prosecution in the difficult position of explaining why the defendant would abuse the victim without being able to dispossess the jury of their preconceived notions of relational normalcy, resulting in an unwillingness, on the jury's part, to believe that abusive acts could be committed in the context of the victim's and the defendant's relationship.29 Under the current legal strictures, since the prosecution cannot present evidence of the relationship's climate of violence, the jury must base its verdict on an often false supposition that the defendant's and victim's relationship is not violent. This creates a substantial danger that the jurors will conclude that the charged offense is unlikely to have occurred, regardless of what the victim's testimony might be. By forbidding the use of evidence concerning the ongoing nature of abuse within the relationship, the law denies reality, and asks the jury to do the same. There is no justice in this formula.


Something which seems often forgotten is that, in criminal cases, the victim,30 too, is entitled to a fair trial. This entitlement is lost, however, in the judicially created vacuum of existing law pertaining to evidence of specific collateral acts.

Victims of domestic violence are beaten, berated, and told to keep quiet by their abusers. It is shameful that, through application of outmoded and abstract legal concepts in real life situations, the courts would allow themselves to be complicit in this syndrome of debasement. The employment of prevailing evidentiary standards concerning the use of similar fact evidence is neither realistic nor practical given what is now known about repeat domestic violence and its catastrophic impact on society.

Extending the scope of Heuring to encompass domestic violence cases corn-ports perfectly with the Florida Supreme Court's stated intent in that case and its progeny. This extension is a natural and inevitable conclusion to the development of law already begun in Heuring.31 Art. 1, §21 of the Florida Constitution ensures that "[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." The time has come to interpret the terms "open," "any injury," "denial," and "delay" paying due respect to the importance of familial dynamics and the rights of persons who find themselves victims within their own families. 

1 Each year, approximately 3.3 million American children, between the ages of three and 17 years, are exposed to parental violence, and, of these children, 87 percent actually witness the abuse and are highly at risk for future delinquent and violent behavior. P. JAFFE, D. WOLFE & S. WILSON, CHILDREN OF BATTERED WOMEN (1990), and
LENORE E. WALKER, THE BATTERED WOMAN SYNDROME (1984). Of the children who witness such abuse, reportedly 53 percent "act out" with their parents and 60 percent "act out" with siblings. Pfout, Schopler & Henley,
Forgotten Victims of Family Violence, SOCIALWORK (July 1982).

2 For example, in 1993 in the Sixth Judicial Circuit, 83 percent of domestic violence offenses were not prosecuted for a myriad of reasons. The most notable and preponderant reason for no prosecution was the victim's failure to cooperate with prosecutorial efforts.

3 In 1993, in the Sixth Judicial Circuit, roughly 85 percent of the domestic violence offenses in which charges were not brought were not prosecuted because of victims' failure to cooperate with the prosecution. In 57 percent of such cases, the victim affirmatively requested that no prosecution be brought.

4 Victims of domestic violence tend to have trouble drawing a distinction between prosecuting their abuser and "leaving" their partner. It appears this mind set is commonly shared by the abuser, who might view prosecution as the threshold to the termination of the relationship with the victim. Abusive men often escalate violence to "recapture" battered women and children. E. Stark & A. Flitcraft (1988), cited in THE NCADV FACT. SHEET (1993).

5 Domestic abusers often use custodial access to the couple's children as a means of terrorizing and retaliating against the victim for separation or prosecution. B.
HART, Pacnscrive SERVICES QUARTERLY (1993). 

6 Many victims feel that leaving the abusive relationship would not guarantee their safety or that of their children. E. Stark & A. Flitcraft (1988), cited in THE

7 The National Coalition Against Domestic Violence (NCADV) estimates that one. sixth of all married women in the United States suffer repeat domestic violence.

8 Goodman v. State, 336 So. 2d 1264 (Fla. 4th D.C.A. 1976), Henderson v. State, 304 So. 2d 537 (Fla. 3d D.C.A. 1974), Dempsey v. State, 238 So. 2d 446 (Fla. 3d D.C.A. 1970), Franklin v. State, 229 So. 2d 892 (Fla. 3d D.C.A. 1969), State v. Wadsworth, 210 So. 2d 4 (Fla. 1968), Schack v. State, 201 So. 2d 580 (Fla. 4th D.C.A. 1967), San Fratello v. State, 154 So. 2d 327 (Fla. 2d D.C.A. 1963), Johnson v. State, 130 So. 2d 599 (Fla. 1961).

9 State v. Savino, 567 So. 2d 892 (Fla. 1990), Heiney v. State, 447 So. 2d 210 (Fla. 1984), Ruffin v. State, 397 So. 2d 277 (Fla. 1981), cert. denied, 454 U.S. 882, 102 S. Ct. 368, 70 L. Ed. 2d 194 (1981), Jackson v. State, 403 So. 2d 1063 (Fla. 4th D.C.A. 1981), Ashley v. State, 265 So. 2d 685 (Fla. 1972), Hines v. State, 243 So. 2d 434 (Fla. 2d D.C.A. 1971), Winkfield v. State, 209 So. 2d 468 (Fla. 2d D.C.A. 1968).

10 Heuring v. State, 513 So. 2d 122, at 124 & 125 (Fla. 1987). The court quoted the California Supreme Court, from its holding in People u. Halston, 69 Cal. 233, 444 P.2d 91, 70 Cal. Rptr. 419 (1968), in upholding the traditional view that similar fact crimes must not only be similar, but must also share a unique characteristic or combination of characteristics which sets them apart from other offenses.

11 id. at 125. The court, however, went on to vacate the defendant's conviction based upon what it found to be the erroneous admission of evidence of prior molestations of five other children who were not family members. Id. The court ruled that the prosecution improperly impeached the defendant with evidence of the five prior incidents. Id.

12 Heuring, 513 So. 2d at 124. The court also found that in such cases, the probative value of such evidence outweighed the prejudicial effects upon the defendant's case. Id.

13 See, e.g., Gould v. State, 558 So. 2d 481 (Fla. 2d D.C.A. 1990), and Calloway v. State, 520 So. 2d 665 (Fla. 1st D.C.A. 1988).

14 Bryan v. State, 533 So. 2d 744, at 746.

15 Id. The Bryan court noted that "[Ole requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy. This does not bar the introduction of evidence of other crimes which are factually dissimilar to the charged crime if the evidence of other crimes is relevant." Id. at 746. Specifically, the Bryan court found admissible the introduction of evidence of a prior bank robbery for the purpose of showing the defendant's ownership and possession of a murder weapon. Id. at 747. See Gould v. State, 558 So. 2d 481 (similar fact evidence admissible to prove specific intent, without necessity of proving rigid similarity, where identity not at issue), and Calloway v. State, 520 So. 2d 665 (similar fact evidence regarding other victims admissible to corroborate victim's testimony, without necessity of proving rigid similarity, where victim's credibility was focal issue). See generally Bryan, 533 So. 2d 74-4.
In Adkins v. State, 605 So. 2d 915, 919 (Fla. 1st D.C.A. 1992), the court wrote that "Rio adopt (the defendant's) reasoning that sexual encounters between a family member and his child victims must be virtually factually identical in order to be admissible under §90.404(2) would require us to ignore the plain meaning of the word 'similar, [defined in WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2ND EDITION as) 'nearly corresponding, resembling in many respects, somewhat like, having general likeness'. . .. 'Similar' does not mean 'exactly the same.' " However, the necessary level of similarity does require a showing that the evidence of collateral acts belongs in the same category as the charged offense (e.g., sexual activity with minors), and does not simply relate to the defendant's generally deviant conduct. See, e.g., Coler v. State, 418 So. 2d 238 (Fla. 1982).
In Feller v. State, 19 Fla. L. Weekly S196 (Fla. April 21, 1994), the Florida Supreme Court ruled similar fact evidence inadmissible as being too factually dissimilar to the charged offense, stating, "the charged and collateral offenses must 'share some unique characteristic or combination of characteristics which sets them apart from other offenses.' " Id. at S198. The court's holding, however, did not reflect a retreat from the Hearing rule so much as it simply attached critical importance to the fact that the collateral act evidence pertained to a mere touching of the victim through her clothing and the charged offense involved several incidents of penile and digital penetration.

16 Bryan v. State, 533 So. 2d 744. See also Padgett v. State, 551 So. 2d 1259 (Fla. 5th D.C.A. 1989), in which the Fifth District Court of Appeal ruled that temporal proximity between the collateral acts and the charged offense is not sine qua non with respect to the admission of similar fact evidence. In Padgett, the court determined that prior sexual solicitations by the child victim's father five years prior to the charged offenses were not so remote in time as to warrant exclusion. This followed the holding in Heuring, in which the court found that a prior sexual battery of the defendant's daughter some 20 years prior to the charged offenses was not too remote in time to be admissible. Heuring, 513 So. 2d at 124. The court reasoned that the remoteness argument for exclusion must fail where there is no showing that the testifyer: witness has suffered a deficiency in he memory caused by the lapse of time. Id. N. such evidence was present in Heuring when the defendant never disputed the trial court` ruling that the passage of time had no:. adversely affected the witness' memory.

17 Lazarowicz v. State, 561 So. 2d 392, a 396 (Fla. 3d D.C.A. 1990). See also Smith v. State, 365 So. 2d 704 (Fla. 1978), cer denied, 444 U.S. 885, 100 S. Ct. 177, 62 Ed. 2d 115 (1979), and Ashley v. State, 2E So. 2d 685 (Fla. 1971).

18 Bierer v. State, 582 So. 2d 1230 (F 3d D.C.A. 1991).

l9 id. at 1232. The court found that the "familial context" rule extends to situations involving the defendant's care over neighborhood children at his home on a daily basis because of the quasi-parental authority the defendant exerted over such children while he supervised them. Id. Presumably, this classification would include offenders employed by day care facilities and baby-sitters caring for alleged victims of child sexual abuse. In Coleman v. State, 485 So. 2d 1342, 1345 (Fla. 1st D.C.A. 1986), the phrase "familial or custodial," from Heuring, was interpreted to include any person maintaining a close relationship with a child residing in the offender's household. The First District Court of Appeal later broadened this definition in Stricklen v. State, 504 So. 2d 1248 (Fla. 1st D.C.A. 1986), in which the court interpreted "familial or custodial" to include situations where an offender takes temporary custody of a child; even if the child does not ordinarily reside with the offender.

20 While striking factual similarity remains a requirement for joinder of offenses, see Wallis v. State, 548 So. 2d 808 (Fla. 5th D.C.A. 1989) (court held sexual battery of nonfamilially related child was not sufficiently episodically similar to sexual batteries of defendant's daughter and stepdaughter to permit joinder of all offenses in single information), and Ellis v. State, 534 So. 2d 1234 (Fla. 2d D.CA. 1988) (court held lewd and lascivious act on 14-year-old girl was improperly joined with counts charging sexual battery by digital penetration of seven-and nine-year-old children), Gould v. State and Calloway v. State make clear that such a showing is not a necessary prerequisite to the admission of such similar fact evidence for the purpose of corroborating the victim's testimony with evidence of non-joined, collateral acts. The authors note that such a view of the "family" is a necessity nowadays, given the prevalence of "latch-key children" and single-parent homes wherein children's supervision is often delegated to persons outside the nuclear family who would assume the same level of control and opportunity to commit acts of sexual abuse against such children as would members of the immediate family. Clearly, a requirement of consanguinity or marital relation would be impractical, as it would obfuscate the achievement of the legislative intent to protect children from sexual predation, as expressed in Stricklen v. State, 504 So. 2d 1248, 1250 (Fla. 1st D.CA. 1986). In Sailor v. State, 625 So. 2d 31 (Fla. 1st D.C.A. 1993), the court held that the similarities between the charged offense of sexual battery against the defendant's girlfriend's 10-year-old son and the collateral offense of sexual battery of defendant's 12-year-old niece were sufficiently similar regardless of whether the defendant's girlfriend's son had been subject to the defendant's "familial authority," notwithstanding that there was no identity of gender between the respective victims. (As to gender dissimilarity, see also Adkins v. State, 605 So. 2d 915 (testimony of female children was relevant to corroborate testimony of male victim of the charged offense
even though victims were of different genders)

21 See Collins v. State, 496 So. 2d 997 (Fla. 5th D.CA. 1986), rev. denied, 506 So. 2d 1040 (Fla. 1987), in which the court upheld the defendant's conviction for capital sexual buttery where the child victim had ridden in the defendant's truck on several occasions, and the defendant's care and control o'er the child victim was exercised with the
consent of the child's mother, with whom tie defendant maintained daily contact.

22 The authors use the term "domestic violence cases" to refer, broadly, to any violent interaction between persons sharing living quarters, or otherwise engaged in intimate, custodial, or personal (as opposed to professional) authoritarian relationships.
Necessarily, this term, and all of the subjects addressed in this article, would logicaly apply with equal force to spousal rape id child physical abuse cases. See contra Herbert v. State, 526 So. 2d 709 (Fla. 4th D.C.A. 1988) (defendant admitted commission of allegedly criminal acts, thereby dispensing with need for corroboration of victim testimony), and Waddy v. State, 355 S). 2d 477 (Fla. 1st D.C.A. 1978), with respect to child physical abuse cases, neither of which cases addressed the concerns raised in Heuring.

23 See Smith v. State, 538 So. 2d 66 (Fla. D.CA_ 1989).

24 See Thomas v. State, 599 So. 2d 158, 102 (Fla. 1st D.CA. 1992).

25 Of course, in cases where the victim denies that she ever threatened the defendant with harm, and the defendant presents evidence supporting a theory of self-defense, collateral act evidence would be critically relevant as impeachment evidence. However, such evidence would not be presented for the prosecution's case-in-chief, but would be presented only as rebuttal evidence. In such a circumstance, the court could adequately ensure the defendant a fair trial by granting a cautionary jury instruction. In any event, where a defendant opens the door by introducing evidence of nonviolence, the prosecution would be permitted to introduce evidence of similar acts of violence to disprove the defendant's claims of pacificity. Inasmuch, the instantly proposed expansion of the Heuring rule does not demand an overhaul of evidentiary practices.

26 See Thomas v. State, 599 So. 2d 158, l62.

27 FLA. STAT. §90.404(2)(a).

28 Cf. State v. Hickson, 630 So. 2d 172, 174 (Fla. 1993), a battered spouse syndrome case, in which the Florida Supreme Court recognized a need to allow evidence focusing
on a pattern of abuse "precisely because a jury would not understand why [the victim of such abuse] would remain in the environment."

29 Id. at 174, where the Florida Supreme Court adopted the wisdom of the New Jersey Supreme Court's rationale in State v. Kelley, 478 A2d 364, 378 (1984), which noted that "the purported common knowledge of the jury may be very much mistaken ... where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion. .. ."

30 The victim, herein, refers to the prosecution, which represents the victim on behalf of the people of the State of Florida. 

31 Insofar as members of the defense bar would assert that this proposal would engender a danger of victim fabrication of violent histories and would herald the use of prosecutorial smear tactics, such concerns can be guarded against. These apprehensions are analogously dispensed within cases involving the admission of child hearsay in sexual abuse cases. See FLA. STAT. 90.803(23) and related case law and procedures. As with any evidentiary issue, the court could conduct a hearing, outside the presence of the jury, for the determination if the admissibility of similar fact evidence In domestic abuse cases for the purpose of corroborating the victim's testimony with a focus upon the following, nonexclusive, list of considerations:

1)    the time of the collateral abusive acts,

2)    the type of abuse,

3)    the existence of a "confidential," familial relationship between the abuser and victim at the time of the abuse, and

4)    the reliability of the collateral act violence as determined, in the court's discretion, following a proffer thereof. See Saffor v. State, 625 So. 2d 31.

Additional safeguards would include a notice requirement such as that already imposed with respect to other types of collateral act evidence. FLA. STAT. Section 90.404(2Xb)1.
Stuart H. Baggish is an assistant state attorney for the Sixth Judicial Circuit in Clearwater. He received his J.D. from the University of Notre Dame Law School in 1990, and his bachelor's degree from the University of Texas in 1987.

Christopher G. Frey is an assistant state attorney for the Sixth Judicial Circuit in Clearwater. He received his J.D. from Stetson University College of Law in 1989, and his bachelor's degree from the University of South Florida in 1986. (Presently working at Carlson, Meissner, Hart & Hayslett, P.A.)