CONTENTS v01. 18, NO. 10 FEATURE ARTICLES - Voice For The ...

in which she said that she was afraid toleave her husband for fear that he wouldkill her, that in fact she was not afraid ofher husband and that she did not leave himbecause she loved him. The State's crossexaminationof Pamela Fielder called intoquestion exactly why she did not leave herhusband or seek help from a third partyduring the course of the marriage.Thedefense thencalled a psychologist,Beatrice Matheeney, who was a marriageand family counselor and a Ph.D. in thefield of psychology. Matheeney profferedtestimonythat shehadanopinionasto whya woman who did not condone ~racticessuch as occurred during the ~ieider marriagewould nonetheless continue to staywith orremainwith her husband. The Stateobjected to Matheeney's proferred testimonyand opinion because the testimonywas (I) not relevant; (2) not shown to be ofassistance to the trier of fact; and (3)prejudicial. The trial court detemlined thatthe objection was well taken and sustainedit. On hill of exception, Matheeney explainedthat there is a recognized phenomenonin the profession that most peoplehave a tendency to believe that they wouldnot endure a situation such as PamelaFielder found herself in; that all the averageperson can see is that the abused womanreturns to her abuser without really nnderstandingher reasons; that those who havenot experienced abuse do not have anyframe of reference to fully understand whya woman would stay with a man whoabused her in a fashion as described byPamela Fielder; and that the kind of perversesexual abuse, hypothetically detailedtoMatheeney while testifyingas a witness,would be even more difficult to disclose toanother person than simple beatings orother strictly physical abuse.The trial judge concluded that to permitMatheeney's opinion in evidence beforethe jury would be "an invasion of theprovince of the jury in the fact fmdingprocess."Again, in rebuttal, the defense offeredadditional testimony of two Ph.D.s in thefield of sociology, colleagues at theUniversity of Texas at Arlington's Centerfor Social Research. These witnesses wereprepared to compare Pamela Fielder andher abusive situation with 542 otherwonien and to show that, of all theabusivehusbands they had researched, only abouttwo percent were more violent than DarwinFielder and that the level of violenceexperienced by Pamela Fielder was "ex-ceptionally high." This evidence was excludedas having no relevance, and as nothaving been shown to he reliable, competentexperttestimony which wouldassistthe jury in resolving an issue in dispute.The Cow of Criminal Appeals referredto its decision in Wenter v. State, 711S.W2d 639, in which it examined Section19.06, supra, as a rule of "relevance."There it emphasized that 19.06 in no waybroadens or otherwise affects the rules ofevidence which apply, or the nny in whichthey apply in a homicide case; that collateralfacts which do not logically tend toprove or disprove matters in issue are not. . .. .adlmSsLble.The Court held in Werner that 19.06permits two types of evidence: "(1) all'facts and circumstances surrounding thekilling' whichare probative ofthematerial'condition ofthe mindofthe accused at thetime of theoffense'; and, (2) all 'facts andcircumstances surrounding . . . the previousrelationshipexistingbetween the accusedand the deceased' which areprobative of the material 'condition of themind of the accused at the time of theoffense."'TheCourtofCriminal Appeals held thatthe exclusion of Matheeney's testimonywas error and that the testimony wasrelevant in that it could explain the enduranceof the hypothetical woman in away that the jury could infer it to he consistentwith the claim of fear of the abuserand that the testimony was of appreciableaid to the factfinder and would becif assistanceto the jury. The Court also concludedthat the other experts' testimony was admissible,but that it might have beencumulative and therefore within the trialcourt's discretion, would not of itself warrantreversal.ConclusionWhere are wegoing with regard to thesenewtvoes ofevidence?It aDueats thatthereare &ny new types of evzence being offeredinthe coumoom. We have discussedseveral types,bntasoursociety progresses,many more areas of expertise are developing.Consequently we may expect that, associety continues to produce a wide arrayof experts, these groups will be offeringopinions incourt based on principles whichare accepted in varying degrees by otherspossessing l ie skills, knowledge, trainingor special experience in a particularscience or trade.While it appears that new types ofevidence will keep our courts "somewherein this twilight zone5'in which "the evidentialforce" of scientific principles demandsrecognition, we can be guided by someobservations. The application of the F ietest calls for a two-part judicialdetemination,(1) that the trial court itself finds thescientific test reliable and (2) that itsreliability is generally or substantially acceptedin the pmicular scientific field inwhich the test belongs. Newness of the testor evidence alone, like the three presentedin this paper, is not a bar to admissibility,for every scientific technique must have itsfust day in court. Moreover, neither lack ofabsolutecertainty nor lackofuniformity ofexpert opinion precludes a trial judge fromfinding on the basis of expert testimonyand any other relevant evidence admittedat trial that a scientific tesvevidence is reliableand that the tesvevidence's reliabilityis, or would be generally or substantiallyaccepted in thescientific field at issue. See,generally, the majority opinion inBurefootv. Estelle, 103 US. 3383,463 S.Ct. 880,77L.Ed.2d 1090 (1983).The trend in Texas Courts, as isevidenced by a reading of Znni, supra, andFielder, supra, along with Rule 702 of theTexas Rules, is to liberally allow experttestimony inalmost any situation in whichthe testimony is relevant and helpful tothetrier of fact.--FIRST TO YOUR RESCUE24 HOURS. ANY JAIL TERMSSE HABLA ESPANOL FRIENDLY SERVICE1189BellnirrBbd. .Suitel01 +Hou~ton,Texa977WZ?GERALD P. MONKS. Ph.D.WdW(*N BONDCO. UC. a14IIYIBONDEOSUPERVISION1UIDS TO:RMECO~OL,TAXCONTROL,SELFCOMRO1Franchise AvmilmbhJune 1989 I VOICE for the Defense 13