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Washington Supreme Court Excludes Past Domestic Violence Evidence

 

The Washington State Supreme Court decided State v. Gunderson on November 20, 2014. Gunderson was charged with violating a no contact order. The charge was elevated to a felony because Gunderson had allegedly assaulted either his ex-girlfriend or her mother during what the mother described as a "scuffle" when initially reporting the matter to the police.

The ex-girlfriend had not made any statement to the police or to the prosecution before trial. At Gunderson's trial, she testified there had been no assault on her, nor on her mother. She had, in fact, suffered no injury. The prosecution then asked the court to allow it to attack the ex-girlfriend's credibility by offering evidence that Gunderson had previously been convicted of domestic violence on two previous occasions. The trial court allowed this, and Gunderson was convicted.

 

The Supreme Court reversed the conviction. It ruled that the  evidence rule allowing evidence of prior misconduct, ER 404 (b), had been misinterpreted by the trial court, and that this error was not harmless in the trial as it was reasonably likely to affect the outcome. In doing so, the court distinguished previous decisions where similar evidence had been allowed by Washington courts. The court noted that since the ex-girlfriend had made no statement at all, it was improper for the prosecutor to attack her credibility by means of the earlier and unrelated incidents. The evidence was more prejudicial than probative, and could have been misused by the jury in its deliberations.

This was an important case from the point of view of persons accused of domestic violence because it limits a form of highly prejudicial character evidence, and will lead to jury decisions being made on the merits of the present allegations, not the defendant's past misconduct.

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