Ibn-Tamas v. United States, 79-1278.

• Decision Date: 17 January 1983
• Docket Number: No. 79-1278.,79-1278.
• Parties: Beverly Ann IBN-TAMAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

455 A.2d 893

Beverly Ann IBN-TAMAS, Appellant, v. UNITED STATES, Appellee.

No. 79-1278.

District of Columbia Court of Appeals.

Argued September 18, 1980.

Decided January 17, 1983.

William E. McDaniels, Washington, D.C., with whom Ellen S. Huvelle, Washington, D.C., was on the brief, for appellant.

Benjamin B. Sendor, Asst. U.S. Atty., Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty., Washington, D.C., at the time the brief was filed, John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell, and William J. Bowman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEBEKER and PRYOR,^* Associate Judges, and GALLAGHER,^** Associate Judge, Retired.

JUDGMENT

This is an appeal from an order entered after remand proceedings. We earlier ordered those proceedings, with discretion whether to hold an evidentiary hearing,¹ for clarification because "we cannot be certain that the record otherwise supports the ruling as a matter of law." Ibn-Tamas v. United States, 407 A.2d 626, 640 n. 29 (D.C. 1979). The trial court has stated on remand that it did consider the relevant factors as outlined by this court in its original ruling. It concluded, inter alia, "that defendant failed to establish a general acceptance by the expert's colleagues of the methodology used in the expert's study of `battered women." Since the expert's testimony could have been excluded "for failure to meet either the second or third elements of the test," id. at 635, and the trial court did exclude that testimony on one such basis, we are left with deciding whether "the evidence, despite our inability to observe the witness, permits but one interpretation." Id. at 636 n. 17. As the court said in its earlier decision in this case, our scope of review on this issue is "narrow" to the point where manifest error must appear for reversal. Id. at 632. We hold that the trial judge was not compelled, as a matter of law, to admit the evidence. He had discretion whether to admit it and "this court should not substitute its judgment in [such] a discretionary ruling." Id. at 636 n. 17.

Accordingly, the order appealed from is Affirmed.

GALLAGHER, Associate Judge, Retired, concurring:

I believe this proffered testimony on "battered women" is properly considered to be within the category of novel scientific evidence. Consequently, it falls within the underlying doctrine of Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923).¹ The essence of Frye is that there must be a reliable body of scientific opinion supporting a novel scientific theory before it is admissible in evidence.

Subsequent to the decision of this court in its first opinion, Ibn-Tamas v. United States, 407 A.2d 626 (D.C.1979), a book authored by Dr. Lenore E. Walker, whose expert testimony on "battered women" was proffered in Ibn-Tamas, supra, and which testimony is at the core of the issue on this appeal, was published, entitled, The Battered Woman (Harper & Rowe, 1979). In the introduction of that book, Dr. Walker made this statement:

I think this research has raised more questions for me than it has answered. As a trained researcher, I felt uneasy about stating some of the conclusions in this book. They seemed too tentative to write down in the positive manner which I have used. Yet they are confirmed repeatedly by all the available data so far. (p. XV-XVI).

Dr. Walker went on to define the term: "A battered woman is a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights." (p. XV) [emphasis added].

In discussing the viewpoint from which she wrote The Battered Woman, Dr. Walker said: "[I] view women as victims in order to understand what the toll of such domestic violence is like for them. Unfortunately, in doing so I tend to place all men in an especially negative light, instead of just those men who do commit such crimes." (p. XVII) [emphasis added].

Initially, I must say that though there may be good reason for the light in which, for the sake of the study, Dr. Walker feels she must place "all men," it does give one a bit of a start. While it may be that "all men" are victims of the male role in society, it would seem one must establish the necessity for Dr. Walker's premise, which at first glance is a trifle disconcerting. It appears that the Doctor's approach would require tracing the man-woman relationship back to the roots of civilization — a subject which would require a little pondering, I should think.

In a case subsequent to Ibn-Tamas supra, the Supreme Court of Wyoming had misgivings about the "state of the art" on this subject. Buhrle v. State of Wyoming, 627 P.2d 1374 (1981). During the trial in that case, Dr. Walker was questioned on voir dire concerning the statement in her book that she felt uneasy about some of its conclusions and felt they were too tentative to write in the positive manner she had used. In explaining the statement, Dr. Walker testified she had received a research grant "to study the matter in a much more scientific way" and that her research was ongoing with completion to be in the future. Id. at 1370-77. For these and other reasons, the court went on to conclude that "research in the battered woman syndrome' is in its infancy." Id. at 1377. In so doing, the court did not rule out admissibility in the future if by then an adequate foundation is laid.

I agree. Frye requires the profferor of the expert on a new scientific theory to show that the evidence is not still in the experimental stage but has gained a scientific acceptance substantial enough to warrant an exercise of judicial discretion in favor of admissibility. The Buhrle opinion demonstrates the fundamental soundness of Frye. As the court in Frye pointed out, scientific evidence by its nature necessarily has a special impact on a jury. This is why the judiciary should proceed with reasonable caution, where the evidence comes as a new scientific theory, as distinguished from a well established field, e.g., fingerprint evidence.

I do not mean to imply I believe that expert testimony on the "battered woman" will not lend itself to a recognition with sufficient scientific underpinning to warrant its admission into evidence in court. What I do say is that, as Frye soundly requires, more needs to be known by the court initially in the specific area of the science before its admissibility will be warranted.

Liberally construing the 1923 opinion in Frye — unless we are to quibble for the sake of quibbling — the essential meaning is that where expert testimony on a novel scientific theory is being...