Washington Supreme Court Reverses After Prior Domestic Violence Incidents Improperly Admitted in Evidence

State v. Gunderson (2014)

The Washington Supreme Court has limited the situations in which evidence of prior domestic violence incidents can be admitted at trial to impeach a witness. It reversed a conviction where prior incidents of domestic violence were admitted to impeach a witness who had made no inconsistent statements.

In State v. Gunderson, the court issued a no-contact order that forbid communication between the defendant and the mother of his child. When the defendant drove from Longview, Washington to Seattle to pick up his child from her grandmother’s house, an altercation occurred among the defendant, the mother, and the grandmother. The grandmother told responding officers that the defendant hit her and the mother. The defendant was charged with a domestic violence felony violation of a no-contact order.

At trial, the grandmother testified that that there was a “scuffle” but that she did not see the defendant actually hit the mother. In turn, the mother testified that the defendant did not hit her or the grandmother, and that no physical violence occurred. There were no prior inconsistent statements made by the mother with which to impeach her. However, the State moved to admit two prior domestic violence incidents between the defendant and the mother under Rule of Evidence 404(b) for the purpose of impeaching the mother’s testimony. The King County trial judge admitted the evidence solely for the purpose of evaluating the mother’s credibility.

ER 404 states that evidence of a defendant’s prior bad acts is not admissible to prove the defendant has a bad character and acted consistently with that character in the charged incident. However, prior bad acts may be admitted for another purpose, such as impeachment—but only when the probative value of the bad-acts evidence substantially outweighs its unfairly prejudicial effect.

On appeal, Gunderson argued that the prejudicial effect of admitting the prior domestic violence incidents substantially outweighed its probative value in impeaching the mother.

The court agreed. It distinguished cases in which prior domestic violence incidents were held admissible to assess credibility of a witness who gave conflicting testimony. In contrast, here the mother’s statements had not varied. The court stated, “The mere fact that a witness has been the victim of domestic violence does not relieve the State of the burden of establishing why or how the witness’s testimony is unreliable.” It also noted that the risk of prejudice is very high when prior domestic violence incidents are admitted, so the probative value must be great for the evidence to be admissible.

The court held that the trial judge erred in admitting the 404(b) evidence. It found that this error was prejudicial because it was reasonably probable that the prejudicial effect of the prior domestic violence incidents affected the jury’s decision. The court reversed Gunderson’s conviction.