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Ninth Circuit Announces Expert Testimony on Battered Woman Syndrome Not Categorically Excludable, Relevant to Duress Defense

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit vacated Lashay Lopez’s three convictions on federal charges, ruling that the trial court committed prejudicial error in excluding expert testimony on Battered Woman Syndrome (“BWS”) in support of her duress defense.  

Lopez and Hector Karaca dated when they were teenagers. Karaca was sentenced to eight years in prison in 2006 for a shooting. He was released in late 2013 and wanted for a double homicide within weeks. He visited Lopez at her home that she shared with her twin sister, mother, and other family members. Despite her objections, he forced himself on her, and eventually she “just gave in.” He left without further incident, but returned several more times over the next several weeks. 

Upon Karaca’s next visit, he asked her to obtain a gun for him. Lopez told him she couldn’t because she was on probation. At that point, he grabbed her arm and threatened to shoot up her house and family. A few days later, he returned once again with a limp, explaining that he was shot in a “shootout” during a drug deal. 

Four days later, he arrived at Lopez’s house and demanded that she get her twin sister’s ID to buy a gun. She provided several excuses why she couldn’t, so he threatened: “I already told you what I was going to do if you don’t get this gun for me. I know you don’t want anything happening to your mom or your sisters.” At that point, she gave in and purchased a Ruger pistol from a pawnshop using her sister’s ID. Karaca took the gun and left. 

When Lopez met with her probation officer about two weeks later, a U.S. Marshal was present and stated he was searching for Karaca. She initially denied knowing him, but after the probation officer found the gun receipt in her purse, she admitted that she bought the gun for him and that they were romantically involved. However, she didn’t explain that he repeatedly threatened her, and she refused to provide his location. She was arrested and sent to jail.

The next day, two ATF agents interviewed her, and she finally described the circumstances under which he bought the gun for Karaca. According to Lopez, she opened up to the ATF agents because she felt safe from Karaca in jail. 

Lopez was charged with (1) false statement during the purchase of a firearm, (2) aggravated identity theft, and (3) felon in possession of a firearm. She conceded that she did, in fact, buy the gun with her sister’s stolen ID. Her defense strategy was to argue that she acted under duress because of Karaca’s repeated threats against her family. Prior to trial, she notified the court of her intent to call Dr. Cheryl Karp, an expert “on issues of trauma, domestic violence, and victim behaviors,” to help support her duress defense. The Government moved to exclude the testimony, and the trial court granted the motion.

The jury found her guilty on all counts, and she was sentenced to 30 months in prison. She appealed, arguing that the trial court erred in excluding Karp’s expert witness testimony on BWS. 

According to the Court, the unanswered legal question presented in this case is “what role BWS evidence may play in supporting the affirmative defense of duress.”

The Court observed that “[d]uress is not a statutory defense, but a common-law defense that allows a jury to find that the defendant’s conduct is excused, even though the government has carried its burden of proof.” The defendant bears the burden of proof and must establish it by a preponderance of evidence: (1) he or she “was under an immediate threat of death or serious bodily injury,” (2) he or she “had a well grounded fear that the threat would be carried out,” and (3) he or she “had no reasonable opportunity to escape.” United States v. Navarro, 608 F.3d 529 (9th Cir. 2010).    

Although the specific question at issue in this case had not been addressed by the Ninth Circuit, other circuits and courts had done so. The Court noted that “the majority of courts—federal and state—that have addressed BWS in the context of a duress defense have concluded that such evidence is relevant and may be admitted.” 

After an extensive review of the reasoning put forth by several different courts that have ruled on this issue, the Court stated: “we are persuaded that expert testimony on how BWS can cause individuals to become hypervigilant to impending harm does not … seek to alter the duress defense’s reasonable-person standard. The question is still whether or not ‘a person of reasonable firmness in [the defendant’s] situation would have been unable to resist.’” Model Penal Code § 2.09(1) (1985). 

In addition, “BWS evidence is compatible with assessing whether a defendant had a reasonable opportunity to escape from the coercing party,” the Court determined. Finally, the Court instructed that in order to present an effective duress defense, the jury should be permitted to hear expert testimony explaining the effects of BWS on the defendant. The Court concluded that “expert testimony on BWS is relevant to supporting a defendant’s argument that she had a well-grounded fear that she would be harmed if she failed to commit the illegal act demanded of her and that she had no reasonable opportunity to avoid committing the crime.” 

Consequently, the Court announced: “We hold that expert testimony on BWS is not categorically excludable and may be relevant to a defense of duress.”

Turing to the present case, the Court stated that the proposed expert testimony of Karp “would have comported with the permissible uses of BWS evidence” just articulated in this opinion, and it would have helped explain to the jury why Lopez acted the way she did vis-à-vis Karaca and law enforcement. 

In light of the holding regarding BWS evidence announced in this opinion, it was an error of law for the trial court to rule that the proposed BWS evidence “was categorically irrelevant to Lopez’s duress defense,” which constitutes an abuse of discretion. The Court rejected the Government’s assertion that the exclusion of the BWS evidence was harmless. It explained that such evidence “serves an important role in helping dispel many of the misconceptions regarding women in abusive relationship.” That evidence was vital to Lopez’s defense, the Court stated. As such, exclusion of that evidence prejudiced her defense.  

Accordingly, the Court vacated all three convictions and remanded for a new trial. See: United States v. Lopez, 2019 U.S. App. LEXIS 885 (9th Cir. 2019). 

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