State v. Gunderson: The Supreme Court Draws a Line in Domestic Violence Cases
Last week the Washington Supreme Court, in an 8-1 decision penned by Judge Steven Gonzalez, reversed a King County Superior Court verdict convicting Daniel Gunderson of felony violation of a no-contact order. The decision drew a line in the sand on 404(b) analysis in domestic violence cases after a series of decisions had expanded the purposes for which the prosecution could admit evidence of prior acts of violence to prove a domestic violence charge.
In prior cases such as State v. Grant, 83 Wn.App. 98 (1996)(prior domestic violence convictions of defendant admissible to explain inconsistencies between alleged victim’s statements and conduct and her testimony) and State v. Magers, 164 Wn.2d 174 (2008) (prior acts of domestic violence admissible to assess credibility of alleged victim in light of her inconsistent statements), Washington courts have shown great flexibility in allowing the prosecution to admit a defendant’s past acts of domestic violence, whether alleged or proven, in order to bolster the credibility of an alleged victim who has given inconsistent statements but is currently testifying in favor of the prosecution, or to impeach an alleged victim who has given previously incriminating statements but testifies to the benefit of the defendant.
In Gunderson the Supreme Court distinguished the facts from the facts of those earlier cases, declining to extend the holdings of those cases to “cases where there is no evidence of injuries to the alleged victim and the witness neither recants nor contradicts prior statements.” In Gunderson the alleged victim of the assault did not speak to the police at the scene (it was her mother who called the police and made the complaint) and testified at trial that Gunderson did not assault her. Over the defense’s objection, the court allowed the prosecution to introduce Gunderson’s prior domestic violence convictions involving the alleged victim to impeach the alleged victim’s credibility.
The Supreme Court held that this was error. Under the fourth prong of Evidence Rule 404(b) analysis, the evidence sought to be admitted must be “more probative than prejudicial.” In this case, the Supreme Court reasoned, the evidence of Mr. Gunderson’s prior convictions was highly prejudicial to Mr. Gunderson and not particularly probative of the alleged victim’s credibility when her own testimony was internally consistent and she did not appear to be injured or traumatized at the scene.
