Trickle-Down Empowerment: How The New York State Legislature Can Empower Attorneys Who Advocate For Victims of Domestic Violence by Incorporating Social Science Findings When Justifying New Legislation

By Heath Hardman, Albany Government Law Review       

I. Introduction

The fields of social science and psychology continue to make advances in human understanding, and courts sometimes make use of this information.[1]  But how can attorneys broaden their access to this information when representing victims of domestic violence?  One way is by requesting that a court take judicial notice of certain legislative facts concerning domestic violence.  While an attorney can support this request by citing scholarly sources, the court, in its discretion, need not grant the request.[2]  Citing legislative materials, such as sponsor’s memos, letters and statements of support, and bill jackets may increase an attorney’s chances of moving a court to take judicial notice of a legislative fact.[3]  After all, if the legislature cites the fact as part of its justification in enacting a law, and the court is required to enforce the law, surely the fact is compelling.  Indeed, some courts have in fact cited the legislature’s reliance on certain facts when taking judicial notice of legislative facts or relying on them for decision making.[4]

The New York legislature has cited many facts related to laws that concern domestic violence.[5]  By continuing to include such facts (or new facts) when justifying legislation, the legislature also increases the likelihood that an attorney can move a court to take judicial notice of such facts.  Those facts will empower attorneys who advocate for victims of domestic violence by allowing them to inform their arguments with relevant knowledge from the social science or psychology communities.  Over time, and after trials and appeals, case law and rulings on motions for judicial notice will develop creating an environment where attorneys can better predict which information is likely to be accepted, and more easily cite to previously accepted legislative facts.

II. Judicial Notice of Legislative Facts

Legislative facts are the perceived “social, economic, political, or scientific” realities that courts act upon in formulating decisions.[6]  Facts subject to judicial notice are generally described as facts of general or common knowledge,[7] sometimes described as “notorious” facts,[8] and facts that can be ascertained by reference to readily available sources whose accuracy is not subject to reasonable dispute.[9]  For example, courts have taken judicial notice that the traditional features of a snowman are known generally,[10] and police officers are likely to encounter deranged or unstable individuals on the Long Island Railroad.[11]  Surely a court may take judicial notice of more meaningful legislative facts, however.  Acceptable sources of facts subject to judicial notice have been described as “repositories of facts open to all,”[12] “such documents and references as are worthy of confidence,”[13] “widely accepted and unimpeachable,”[14] and include materials from the state assembly and senate,[15] journals,[16] and government websites.[17]

Procedurally, judicial notice lies in the court’s discretion[18] and should be requested by a party with supporting materials to establish the fact as general knowledge and not subject to reasonable dispute.[19]  The court may request materials.[20]  The opposing party should be notified and have an opportunity to be heard on the matter.[21]  Finally, the court may act sua sponte, but parties should be notified and heard on the matter.[22]

Additionally, although not specifically required under the common law rule for judicial notice of legislative facts, a prudent attorney practicing in New York should ensure that social science facts adhere to the Frye standard.  The New York Court of Appeals has “often endorsed and applied the well-recognized rule of Frye v. United States.”[23]  The Frye rule requires that expert testimony be based on a scientific principle or procedure that has been “sufficiently established to have gained general acceptance in the particular field in which it belongs.”[24]  There is evidence of courts applying a Frye-type analysis to social science, psychological, and medical facts either cited or judicially noticed.[25]  For example, in In re Mohawk, the court took judicial notice of the DSM IV, subject to notice and challenge, because it is a published scientific text that propounds a principle that is accepted as a valid one in the appropriate scientific community.[26]  In Taylor, the New York Court of Appeals concluded “that the relevant scientific community has generally accepted that rape is a highly traumatic event that will in many women trigger the onset of certain identifiable symptoms.”[27]  In DeMatteo, the court took judicial notice of certain facts concerning the harmful effects of cigarette smoke based on its finding that a New York statute and materials within the associated legislative bill jacket relied on the facts which were widely accepted in the medical community.[28]

Courts have found facts cited, or relied on, by the legislature and contained within legislative materials to be suitable for judicial notice or support in decision-making.[29]  In DeMatteo, the court took judicial notice of certain facts concerning the harmful effects of cigarette smoke.[30]  The court held that the parties may introduce evidence within thirty days  by requesting a hearing or trial to refute the facts judicially noticed.[31]  The judicial notice was contested but the court maintained the judicially noticed facts and concepts based on its finding that a New York statute and materials within the associated legislative bill jacket relied on the facts which were widely accepted in the medical community.[32]

The court in In re Lonell J. stated several facts concerning the effects exposure to domestic violence has on children.[33]  The court found support for its use of the facts based on studies cited by the legislature: “In enacting the Family Protection and Domestic Violence Intervention Act of 1994 (L. 1994, ch. 222), the Legislature cited several studies proving that children in violent homes experience delayed development, psychosomatic illness and feelings of fear and depression, and often become the victims of abuse themselves.”[34]  The court in In re J.D. v. N.D. also relied on the legislature’s factual findings and stated:

[D]omestic violence is not limited to overt acts of violence which cause physical injury.  The Legislature implicitly recognized that domestic violence is not a static concept, when it stated . . . ‘[a] home environment of constant fear where physical or psychological violence is the means of control and the norm for the resolution of disputes must be contrary to the best interests of a child.’ . . . [i]ndeed, whether an abuser physically injures his victim, or whether an abuser engages in psychological assault, the wounds are deep, long-lasting and far-reaching.[35]

It is clear that courts have relied on the legislature’s factual findings and have cited the same as support for facts to be judicially noticed or used in decision-making.

III. Domestic Violence “Facts” that Have Been Cited in Legislative Materials

This section contains a list of facts that can be found or supported by information in legislative materials contained in bill jackets.  The information could be very useful to attorney’s advocating for victims of domestic violence and illustrates the knowledge with which the legislature acted at the time each legislation was enacted.  Additionally, cases where the same fact has been cited are included in the footnotes.

a. Power and control are the main dynamics of domestic violence of which violence is but one tool to achieve power and control.[36]

b. Power and control tactics involving violence have devastating psychological effects.[37]

c. Domestic violence is a pattern of behavior aimed at controlling another person and often occurs over a significant period of time.[38]

d. Domestic Violence can include coercive tactics of isolation, emotional, psychological, and economic abuse.[39]

e. Abusers may use technology, surveillance, and stalking to abuse their victims.[40]

f. The time of separation is often the most dangerous for the victim.[41]

g. It is not in the best interests of the child to live with a violent parent.[42]

h. Abusive fathers are more likely to seek and win custody of their children.[43]

i. Domestic Violence effects children whether they are abused themselves or whether they witness the violence.[44]

j. Women and children are at risk during unsupervised visitation periods, during transfers of the children for visitation, during mediation and through shared custody arrangements.[45]

 IV. Conclusion

The facts cited in section III represent some of the facts that can be found in legislative materials and could be very useful to attorneys representing victims of domestic violence.  Because the facts were cited by the legislature, or relied on to justify legislation, an attorney may be more likely to succeed in moving a court to take judicial notice of the facts.  These facts can be used to support arguments, explain behavior that may be unusual or hard to understand, and bring relevant social science expertise into the courts.  In some cases, expert witnesses may be unavailable or the victims may be unable to pay for expert witnesses.  Taking judicial notice of facts used by the legislature is likely to be more efficient than expert witness testimony, which takes time and may prolong proceedings.

Rather than attorneys importing social science knowledge into trial courts, hoping for success, and the possibility of higher court appeals that accept the information to develop a stronger case law, attorneys can draw the information down from the legislature.  Doing so allows the information to “trickle-down,” so to speak, from the higher legislature into the courts, rather than trying to convince judges from the trial courts and then up.  Judges cannot instigate the proper cases to develop the import of knowledge because they must wait for the case to come before them while the legislature can conduct research and enact legislation on its own initiative.  The facts used by the legislature to justify legislation reflect the knowledge and policy of the state government, which is in a better situation with greater access to resources than a trial judge.  The legislature can continue to empower attorneys by citing relevant social science knowledge in its justification for legislation.  It is then up to the individual attorney to make creative use of that knowledge to help the individual victim and potentially develop common practices and case law.  “[W]e cannot apply the law in a way that has any hope of making sense unless we attempt to visualize the actual world with which it interacts and this effort requires judicial notice to educate the court.”[46]

[1] See, e.g., People v. Taylor, 552 N.E.2d 131, 134 (1990); In re Lonell J., 673 N.Y.S.2d 117, 118 (App. Div. 1998; In re J.D. v. N.D., 652 N.Y.S.2d 468, 468–69 (Fam. Ct. 1996).

[2] See, e.g., J.G. ex rel. Grant v. Zachman, 825 N.Y.S.2d 621, 621–22 (App. Div. 2006) (affirming trial court’s denial of request to take judicial notice that a particular person was not a party to the action).

[3] See, e.g., DeMatteo v. DeMatteo, 749 N.Y.S.2d 671, 675–76 (Sup. Ct. 2002).

[4] See, e.g., Lonell J., 673 N.Y.S2d118; DeMatteo, 749 N.Y.S.2d at 673, 675–76.

[5] See infra section III.

[6] McCormick on Evidence § 331 (6th ed.).

[7] See, e.g., Hunter v. New York, Ontario, & Western R.R. Co., 23 N.E. 9, 13 (1889); In re Crater Club, Inc. v. Adirondack Park Agency, 446 N.Y.S.2d 565, 567 (App. Div. 1982), order aff’d., 443 N.E.2d 492 (1982).

[8] People v. Alicea, 254 N.E.2d 915, 915 (1969).

[9] See Hunter, 23 N.E. at 10–11; People v. Jones, 539 N.E.2d 96, 98 (1989).

[10] Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498, 500, n.1 (2d Cir. 1982).

[11] Stevens v. Metro. Transp. Auth. Police Dep’t, 293 F. Supp. 2d 415, 422 (S.D.N.Y. 2003).

[12] Hunter, 23 N.E. at 10–11.

[13] Id. at 11.

[14] Ptasznik v. Schultz, 679 N.Y.S.2d 665, 666 (App. Div. 1998).

[15] Browne v. City of N.Y., 211 N.Y.S. 306, 330 (App. Div. 1925), aff’d, 241 N.Y. 96 (1925).

[16] People ex rel. Butler v. McNeill, 219 N.Y.S.2d 722, 727 n.11 (Sup. Ct. 1961).

[17] Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 871 N.Y.S.2d 680, 684–85 (App. Div. 2009).

[18] Hunter, 23 N.E. at 11; Walton v. Stafford, 43 N.Y.S. 1049, 1051–52 (App. Div. 1897), aff’d, 162 N.Y. 558 (1900).

[19] Walton, 43 N.Y.S. at 1051–52.

[20] Id.

[21] In re Mohawk Valley Psych. Ctr., 818 N.Y.S.2d 766, 768–69 (Sup. Ct. 2006); see, e.g., DeMatteo, 749  N.Y.S.2d at  673–74; Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd., 508 F. Supp. 1322, 1328–29 (E.D.N.Y. 1981).

[22] People v. Langlois, 472 N.Y.S.2d 297, 301–02 (Co. Ct. 1984); Chasalow v. Bd. of Assessors of Cnty. of Nassau, 575 N.Y.S.2d 129 , 132–33 (App. Div. 1991); Matter of Ronny, 242 N.Y.S.2d 844, 854–56 (Fam. Ct. 1963); Matter of Justin EE, 544 N.Y.S.2d 892, 894 (App. Div. 1989), appeal denied, 551 N.E.2d 602 (1990).

[23] People v. Wernick, 674 N.E.2d 322, 324 (N.Y. 1996); see also Frye v. United States, 293 F. 1013 (1923); but see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (articulating a separate standard for the reliability of scientific evidence).  For an excellent discussion of Frye and Daubert, see Olivier A. v. Christina A., 806 N.Y.S.2d 446 (Sup. Ct. 2005).

[24] Frye, 293 F. at 1014; see also Wernick, 674 N.E.2d at 324.

[25] See, e.g., Taylor, 552 N.E.2d at134; Mohawk, 818 N.Y.S.2d at 768–69; DeMatteo, 749 N.Y.S.2d at 675–77.

[26] Mohawk, 818 N.Y.S.2d at 768–69.

[27] Taylor, 75 N.Y.2d at 286.

[28] DeMatteo, 749 N.Y.S.2d at 673, 675–77.

[29] See e.g., Browne v. City of New York, 211 N.Y.S. 306, 330 (App. Div. 1925), aff’d,  149 N.E. 211 (1925); In re Lonell J., 673 N.Y.S.2d at 118; DeMatteo, 749 N.Y.S.2d at 675–77; In re J.D., 652 N.Y.S.2d at 468.

[30] DeMatteo, 749 N.Y.S.2d at 673.

[31] Id.

[32] Id. at 675–77.

[33] In re Lonell J., 673 N.Y.S.2d at 118.

[34] Id. at 62.

[35] In re J.D., 652 N.Y.S.2d at 468.

[36] Sponsor’s Memorandum in Support, Sen. Eric T. Schneiderman, N.Y. Bill Jacket, ch. 405, L. 2010, S.B. 6987A [hereinafter Sponsor’s Memo (S.B. 6987A), Schneiderman]; Sponsor’s Memorandum in Support, Assemb. Joseph R. Lentol, N.Y. Bill Jacket, ch. 405, L. 2010, S.B. 6987 [hereinafter Sponsor’s Memo (S.B. 6987), Lentol]]; Memorandum in Support in Support, Laurel W. Eisner, Exec. Dir. of Sanctuary for Families, to Hon. David Paterson (Aug. 4, 2010), N.Y. Bill Jacket, ch. 341, L. 2010, A.B. 8393-A [hereinafter Memo in Support, Eisner].

[37] Sponsor’s Memo (S.B. 6987A), Schneiderman; Sponsor’s Memo (S.B. 6987), Lentol.

[38] Letter from Assemb. Helene E. Weinstein, to Gov. David A. Paterson (July 19, 2010), N.Y. Bill Jacket, ch. 341, L. 2010, A.B. 8393 [hereinafter Letter in Support (A.B. 8393), Weinstein]; Sponsor’s Memorandum in Support, Assemb. Helene E. Weinstein, N.Y. Bill Jacket, ch. 341, L. 2010, A.B. 8393A [hereinafter Sponsor’s Memo (A.B. 8393A), Weinstein]; Letter from Amy Barasch, Esq., Exec. Dir. Office for the Prevention of Domestic Violence [hereinafter OPDV], to Gov. David A. Paterson (July 7, 2010), N.Y. Bill Jacket, ch. 341, L. 2010, A.B. 8393 [hereinafter Memo in Support (A.B. 8393), Barasch]; Memo in Support (A.8393-A), Eisner.

[39] Letter from the New York State Coalition Against Domestic Violence in support of A.8393A, to Gov. David A. Paterson (Aug. 9, 2010), N.Y. Bill Jacket, ch. 341, L. 2010, A.B. 8393; Sponsor’s Memorandum in Support, Assemb. Audrey I. Pheffer, N.Y. Bill Jacket, ch. 406, L. 2008, A.B. 8634 [hereinafter Sponsor’s Memo (A.B. 8634), Pheffer]; Letter from Consumer Protection Bd. in Support of A.8634-D/S.5543-E to Gov. David A. Paterson (June 25, 2008), N.Y. Bill Jacket, ch. 406, L. 2008, A.B. 8634 [hereinafter Letter in Support (A.8634-D/S.5543-E), CPB].; In re J.D. v. N.D., 652 N.Y.S.2d 468, 471–72 (Family Ct. 1996).

[40] Sponsor’s Memo (A.B. 8634), Pheffer; Letter in Support (A.8634-D/S.5543-E), CPB.

[41] Sponsor’s Memorandum, Assemb. Helene Weinstein, N.Y. Bill Jacket, ch. 85, L. 1996, A.B. 2446 [hereinafter Sponsor’s Memo (A.B. 2446), Weinstein]; Nicholson v. Williams, 203 F. Supp. 2d 153, 194 (E.D.N.Y. 2002).

[42] Sponsor’s Memo (A.B. 2446), Weinstein; In re J.D., 652 N.Y.S2d at 468.

[43] Sponsor’s Memo (A.B. 2446), Weinstein.

[44] Sponsor’s Memo (A.B. 2446), Weinstein; Nicholson v. Scoppetta, 3 N.Y.3d 357, 374 (2004); see Wissink v. Wissink, 749 N.Y.S.2d 550, 552–53 (App. Div. 2002).

[45] Sponsor’s Memo (A.B. 2446), Weinstein.

[46] Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd., 508 F. Supp. 1322, 1328 (E.D.N.Y. 1981).

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