Prosecutors push to bring prior offenses into domestic violence trials

Assemblywoman Ellen Park (D-Bergen), who chairs the Assembly judiciary committee, is the prime sponsor of a bill, intended to increase domestic violence convictions, that would allow prosecutors to introduce evidence of defendants’ prior offenses. (Dana DiFilippo | New Jersey Monitor)

Domestic violence, sex assault, and child abuse cases are notoriously tough to prosecute because they often occur indoors without witnesses or corroborating evidence, fear and shame keep some victims from cooperating, and jaded investigators can doubt victims’ claims.

Now, several legislators have proposed a solution they say should increase the odds of conviction — but critics warn could be unconstitutional.

Under a bill introduced earlier this month, prosecutors in New Jersey would be allowed to introduce evidence of a defendant’s past domestic violence, sex assault, and child abuse offenses in new cases of those offenses. Because such offenders often have a history of such offenses, the theory goes, their prior bad acts could provide context or show a propensity for such behavior, boosting the likelihood of conviction.

But evidence of past wrongs or crimes typically is inadmissible in court because it can be prejudicial and threaten a defendant’s constitutional right to a fair trial.

So while prosecutors championed the bill when it came up for a committee hearing last week in Trenton, it prompted concerns even from domestic violence advocates and court officials.

“Any criminal prosecution should be tried on the facts of the case, and not because the defendant is an alleged ‘bad actor.’ Really, the job of the courts is to provide opportunity for a fair trial on relevant, non-prejudicial (evidence),” said Pam Geller, a legislative liaison for the Administrative Office of the Courts.

Denise Higgins, legal director at the New Jersey Coalition to End Domestic Violence, told legislators criminal prosecution typically does little to deter violence and can even make the abuse worse. She instead urged legislators to focus their attention on prevention and community education.

“We must work together to effectively prevent domestic violence,” Higgins said. “Increasing economic supports and access to housing, providing child care, engaging and educating youth, and offering access to community-based services will help us shift our approach to domestic violence from one that primarily relies on the legal system after something has happened to providing solutions that can prevent violence and abuse from occurring in the first place.”

Thursday’s hearing before the Assembly’s judiciary committee was discussion-only, so lawmakers did not vote on the bill.

Bill sponsor Assemblywoman Ellen Park (D-Bergen), the committee’s chair, told spectators she and the bill’s other sponsors — Assemblywoman Jessica Ramirez (D-Hudson) and Sen. Vin Gopal (D-Monmouth) — would consider the testimony and tweak the bill.

“This legislation is to protect the victims. That’s our priority,” Park said.

Assemblywoman Vicky Flynn (R-Monmouth), a committee member who’s also an attorney, warned the bill could hurt victims if convictions get overturned on appeal because a judge deems prior offenses were introduced unconstitutionally.

While legislators can change court rules of evidence, such changes instead typically go through the Judiciary’s rules committee, where they’re vetted by judges, prosecutors, public defenders, and members of the bar association before being adopted or discarded, Geller said.

Without such vetting, Flynn urged the bill sponsors to put “guardrails” into the bill to make it “appellate-proof.”

“If you’re going to use the legislative process to skip over the court rulemaking process, then let’s get it right,” Flynn said.

Assemblywoman Vicky Flynn (R-Monmouth) questions Stephan Finkel, the Attorney General’s Office’s director of legislative affairs, during the Assembly’s judiciary committee meeting on Sept. 19, 2024, at the Statehouse in Trenton. (Dana DiFilippo | New Jersey Monitor)

Three officials from the New Jersey Attorney General’s Office testified in support of the bill, saying the change wouldn’t be unprecedented. Several states, including California, Alaska, Illinois, Louisiana, Texas, and Wisconsin, have such laws on the books, according to the bill.

The change is sorely needed, said Patricia Teffenhart, executive director of the office’s violence intervention and victim assistance division.

“The reality is that domestic violence accounts for a significant portion of the law enforcement responses in New Jersey,” Teffenhart said.

More than 63,000 incidents of domestic violence were reported in 2020, according to state police data. Children were involved or present during almost 15,000 of them, and nearly 13,000 were committed by someone under a restraining order, Teffenhart said. Domestic violence is seriously underreported, with a tiny fraction resulting in arrest, conviction, or incarceration, she added.

“This one we can’t fix on our own,” she said. “We need support of our colleagues in the Legislature. We need more tools in our toolbox, as the system does not recognize patterns of behavior or account for the increase in frequency and lethality of unchecked intimate partner violence.”