1 No. 95-JE-32, 1997 Ohio App. LEXIS 335 (7th Dist. Jan. 30, 1997 ), aff'd on reh'g, 1997 Ohio App. LEXIS 1182 (Mar. 19, 1997), discr. appeal allowed, No. 97-534, 1997 Ohio LEXIS 1676 (May 28, 1997). The Nemeth court found that battered women and battered children are similarly-situated for purposes of the equal protection clause. Id. at *12. Therefore, since "a person suffering from the Battered Woman Syndrome is permitted to introduce expert testimony to assist the trier of fact in determining whether she acted out of an honest belief that she was in imminent danger (the subjective element of a self-defense claim), under equal protection analysis, so should a child suffering from Battered Child Syndrome. " 1997 Ohio App. LEXIS 1182 at *4-5.

2 Jahnke v. State, 682 P.2d 991, 1015 (Wyo. 1984) (Rose, J., dissenting). Mr. Jahnke made this comment to his son, Richard, just hours before Richard shot him. Id. The younger Jahnke was the target of his father's unmerciful beatings since age two. Id. at 1015. Although Jahnke is not the subject of this Note, this comment serves to illustrate the abuse battered children have to endure. See also infra note 19.

For another example of child abuse, see In the Matter of the Appeal in Maricopa County, 893 P.2d 60, 63 (Ariz. Ct. App. 1994). The mother of two young children placed a casket in the house and threatened to place them in it. Id. She also choked her children to the point of unconsciousness. Id.

3 Chambers v. Owen-Ames-Kimball Co., 67 N.E.2d 439, 443 (Ohio 1946); see also Leslie Gentile, Note, Giving Effect to Equal Protection: Adarand Constructors, Inc. v. Pena, 29 AKRON L. REV. 397 (1996) ("The principles of equal protection embody some of the most deeply cherished ideals of Americanism - that all persons are to be treated equally under the law, entitled to the same freedoms and rights, and deserving of the same opportunities.").

4 The Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws . . . ." U.S. CONST. amend. XIV, (1. Its counterpart, Art. 1, ( 2 of the Ohio Constitution provides:

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the General Assembly.

5 Yick Wo. v. Hopkins, 118 U.S. 356, 369 (1886).

6 Id. at 367-70 (stating that the intent of the Fourteenth Amendment was to give security "to all under like circumstances in the enjoyment of their personal and civil rights. "); see also F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (noting that "all persons similarly circumstanced shall be treated alike"); Porter v. Oberlin, 205 N.E.2d 363, 369 (Ohio 1965) ("legislation must apply alike to all persons within a class . . . .").

7 Yick Wo, 188 U.S. at 369. ("When we consider the nature and theory of our institutions of government . . . we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power."); see also Adamsky v. Buckeye Local Sch. Dist., 653 N.E.2d 212, 214 (Ohio 1995) (stating that a statutory classification violates the equal protection clause if it treats similarly situated persons differently based upon an illogical and arbitrary basis); Morris v. Savoy, 576 N.E.2d 765, 771 (Ohio 1991) (noting that there must be "reasonable grounds" for making a distinction between those within and those outside a class).

8 Personnel Admr. of Mass. v. Feeney, 442 U.S. 256, 272 (1979) ("In assessing an equal protection challenge, a court is called upon . . . to measure the basic validity of the legislative classification.").

9 Nemeth, 1997 Ohio App. LEXIS 335, at *8. Battered children have increasingly sought to introduce expert testimony on the battered child syndrome to establish the reasonableness of their actions in a self-defense claim. Lauren E. Goldman, Note, Nonconfrontational Killings and the Appropriate Use of Battered Child Syndrome Testimony: The Hazards of Subjective Self-Defense and the Merits of Partial Excuse, 45 CASE W. RES. L. REV. 185, 192 (1994).

10 Nemeth, 1997 Ohio App. LEXIS 335, at *12.

11 See infra notes 46-53 and accompanying text.

12 Nemeth, 1997 Ohio App. LEXIS 335, at *12.

13 Part IV analyzes the court's ruling with respect to appellant's first assignment of error only, wherein the appellant challenged, on equal protection grounds, the trial court's ruling denying him the right to present expert psychological testimony on the battered child syndrome to support his self-defense claim. Brief for Appellant at 23, State v. Nemeth, 1997 Ohio App. LEXIS 335 (No. 95-JEX-00032).

14 See infra notes 18-62 and accompanying text.

15 See infra notes 63-70 and accompanying text.

16 See infra notes 71-89 and accompanying text.

17 See infra notes 90-134 and accompanying text.

18 Child Abuse and Neglect: Fact Sheet, 21 CHILDREN TODAY 13 (1992) (stating that hospitals, foster homes, social worker case loads, and court dockets are flooded with cases of child abuse). The problem had escalated to such a point that the Bush Administration issued a "national call to arms," calling for a united effort in the fight against child abuse. Id.; see also Arthur H. Bernstein, Child Abuse Reports: Breach of Medical Confidentiality, 58 J. AM. HOSP. ASS'N. 86 (1984) ("the true dimensions of the criminal abuse of children in this country are beginning to be realized").

19 PAUL A. MONES, WHEN A CHILD KILLS: ABUSED CHILDREN WHO KILL THEIR PARENTS 311 (1991). Typically, the abused child is subjected to the whole gamut of abuse - physical, mental, and sexual. Id. at 12.

Abuse is actually the wrong word, for it sugarcoats what these children are forced to endure. Torture far more accurately describes when a mother ties her two-year-old daughter to a chair, then locks her in a dark closet for eight hours a day. And it is torture, not abuse, when a father, while raping his ten-year-old daughter, threatens to kill her - or her mother or siblings - if she tells anybody. Id. at 12-13.

20 See Child Abuse and Neglect: Fact Sheet, supra note 18, at 13 (a major contributing factor for this increase is parental substance abuse). Nearly 10 million children are affected in some way by their parent's alcohol and drug abuse problems. Id. Sadly, more than three children die each day in the United States as a result of abuse and neglect. Id. Brian Nemeth, the defendant in this Note, testified at trial that his mother was drunk five or six times a week, drinking up to a case of beer per day. Brief for Appellant, supra note 13, at 12-13.

21 MONES, supra note 19, at 311 (stating that while survival is the child's primary concern, he or she typically will not fight back). See also Merrilee R. Goodwin, Comment, Parricide: States Are Beginning To Recognize That Abused Children Who Kill Their Parents Should Be Afforded The Right To Assert A Claim Of Self-Defense, 25 SW. U. L. REV. 429, 437 (1996) (stating that only a small percentage of children resort to killing their parents).

22 Parricide is defined as "the crime of killing one's father." BLACK'S LAW DICTIONARY 1117 (6th. ed. 1990). In another reference, it is defined as the "killer of a close relative." WEBSTER'S THIRD NEW INT'L DICTIONARY 1644 (1984). For purposes of this Note, parricide means "killing one's parent/s." See MONES, supra note 19, at 5.

Parricides accounts for 1.5 to 2.5 percent of all homicides. Id. at 6. About 70% of these cases involve white, middle class boys killing their father. Regina Brett, A Judge's Sentence Keeps Teen Out of Jail, THE TIMES UNION, Mar. 21, 1997, at D1; Goodwin, supra note 21, at 437.

23 MONES, supra note 19, at 318. (noting that abused children are "victims acting to protect themselves" not "lawless vigilantes"); see also Jennifer L. Layton, When the Abused Child Fatally Says "No More!": Can Parricide Be Self-Defense in Ohio?, 18 DAYTON L. REV. 447, 448 (1993) (the abused child may act in self defense to the abuse inflicted upon him.); Jamie Heather Sacks, Comment, A New Age of Understanding: Allowing Self-Defense Claims for Battered Children Who Kill Their Abusers, 10 J. CONTEMP. HEALTH L. & POL'Y 349 (1994) ("Abused children who commit parricide are presented as criminals, yet surely they are victims first.").

24 Russell C. Prince, Note, Evidence-Child Abuse-Expert Medical Testimony Concerning "Battered Child Syndrome" Held Admissible, 42 FORDHAM L. REV. 935, 937 (1974). Prince discusses the history of the medical research of the battered child syndrome:

Dr. John Caffey first reported in 1946 on the frequency of subdural hematoma in infants combined with multiple fractures of the long bones. Dr. Caffey and his colleagues did not attempt to discover the source of these injuries, which they apparently assumed to be traumatic in origin, but rather concentrated on the physical condition itself. The first interest in how these injuries came about was shown in 1953, when Dr. Frederic N. Silverman confirmed that these fractures were due to trauma, citing parental arelessness as a possible explanation of the injuries. This cautious explanation of the injuries was replaced in an article by Dr. Paul V. Woolley, Jr. two year later, which denoted willful parental abuse as the cause of the injuries.

Id.

25 Kempe, Silverman, Steele, Droegemueller, & Silver, The Battered-Child Syndrome 181 J.A.M.A. 17 (1962).

26 Id. (describing the clinical signs that treating physicians should look for to recognize an abused child).

27 Steven R. Hicks, Comment, Admissibility of Expert Testimony on the Psychology of the Battered Child, 11 LAW & PSYCHOL. REV. 103, 140 (1987). While Dr. Kempe originally adopted the term "battered child syndrome" to bring the condition to the attention of treating physicians, he has since stated that "except for the 'children who are killed or endure permanent brain damage, the most devastating aspect of abuse and neglect is the permanent adverse effects on the developmental process and the child's emotional well-being.'" Id. at 111. (quoting C. KEMPE & R. HELFER, HELPING THE BATTERED CHILD AND HIS FAMILY, at intro. (1972) (emphasis added)); see also NEIL FRUDE, PSYCHOLOGICAL APPROACHES TO CHILD ABUSE 5 (1980).

28 LENORE E. WALKER ,THE BATTERED WOMAN XV (1979). Dr. Walker, a leading authority on the battered woman syndrome, defines a battered woman as "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." Id. To be classified as a battered woman, she must go through the battering cycle at least twice. Id. The cycle consists of three phases:

1) the tension-building phase - characterized by minor battering incidents and verbal abuse,

2) the battering phase - consisting of the "acute battering incident " which often escalates into severe, sometimes fatal beatings, and

3) the contrition phase - characterized by a reprisal from the abuse with the batterer exhibiting repentance and loving behavior.

Id. at 55-70; see also Melanie Frager Griffith, Note, Battered Woman Syndrome: A Tool For Batterers?, 64 FORDHAM L. REV. 141, 143 (1995) (describing the battered woman syndrome as "a cycle of brutality where violent episodes gradually increase, eventually culminating with an explosive and vicious encounter").

According to the UNITED STATES DEPT. OF HEALTH AND HUMAN SERVICES, 109 PUBLIC HEALTH REPORTS , 328-38 (1994), more than 12 million women are battered by their partners. Id. In the United States, a woman is beaten every fifteen seconds in her own home. Danielle R. Dubin, Note and Comment, A Woman's Cry for Help: Why the United States Should Apply Germany's Model of Self-Defense for the Battered Woman, 2 ILSA INT'L & COMP. L. 235 (1995). Two million of these women are "severely assaulted" by their male partners. A. Renee Callahan, Will the Real Battered Woman Please Stand Up? In Search of a Realistic Legal Definition of Battered Woman Syndrome, 3 AM. U.J. GENDER & LAW 117 (1994). Sadly, nearly 1500 women are killed by their batterers. Myrna S. Raeder, Proving the Case: Battered Woman and Batterer Syndrome: The Double-Edged Sword: Admissibility of Battered Woman Syndrome Testimony By and Against Batterers in Cases Implicating Domestic Violence, 67 U. COLO. L. REV. 789, 792 (1996).

In 1994, President Clinton responded to the "disturbing dimensions of domestic violence in America" by signing the Violence Against Women Act, Pub L. No. 103-322, 108 Stat. 1902, (codified in different sections of 8 U.S.C., 18 U.S.C., and 42 U.S.C.). David L Faigman & Amy J. Wright, The Battered Woman Syndrome in the Age of Science, 39 ARIZ. L. REV. 67, 69, n.7 (1997). This Act authorized $1.6 billion in grants to support efforts to reduce violent crimes against women. Id.

29 PTSD is a condition characterized by 1) re-experiencing the traumatic event, 2) numbing or reduced involvement to the external world, and 3) a variety of autonomic symptoms. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 236 (3d ed. 1980). Those who suffer from this disorder develop symptoms of hyperalertness and enhanced startle response when exposed to situations that resemble the original trauma. Id. This explains why abused children become hypervigilant when exposed to circumstances that indicate an attack is forthcoming. Id.; see infra note 39 and accompanying text.

In Wyoming, the state legislature enacted Wyo. Stat. 6-1-203 formally recognizing the battered woman syndrome as a subset of the diagnosis of Post-Traumatic Stress Disorder. Hope Toffel, Note, Crazy Women, Unarmed Men, and Evil Children: Confronting The Myths About Battered People Who Kill Their Abusers, And The Argument For Extending Battering Syndrome Self-Defenses To All Victims Of Domestic Violence, 70 S. CAL. L. REV. 337, 342 (1996).

30 Evan Stark, Symposium On Reconceptualizing Violence Against Women By Intimate Partners: Critical Issues: Re-Presenting Woman Battering: From Battered Woman Syndrome To Coercive Control, 58 ALB. L. REV. 973, 999 (1995) (stating that a diagnosis of PTSD validates a woman's claim of exposure to severe trauma).

31 "Learned helplessness is a psychosocial theory for lack of response, or passive behavior in the face of the ability to act . . . . [This] theory explains why the battered woman who kills has not left the situation prior to the killing." Mira Mihajlovich, Comment, Does Plight Make Right: The Battered Woman Syndrome, Expert Testimony and the Law of Self-Defense, 62 IND. L. J. 1253,1258 (1987); see also Erich D. Anderson & Anne Read-Anderson, Constitutional Dimensions of the Battered Woman Syndrome, 53 OHIO ST. L. J. 363, 371 (1992) (describing how the condition of learned helplessness causes the battered woman to believe that "[r]eacting with passivity is her best defense"). For an excellent discussion of the psychological theory of learned helplessness see L. WALKER, supra note 28, at 42-54 (describing how the battered woman's feelings of helplessness cause her to stay in the abusive relationship).

32 Layton, supra note 23, at 451-52 (describing the effects of physical, psychological, and sexual abuse on the battered child).

33 Id. Battered women and children psychologically respond to abuse by forming a "traumatic bond" with their abuser. Id. at 472, n.180 (citing Don Dutton & Susan Lee Pointer, Traumatic Bonding: The Development of Emotional Attachments in Battered Women on Other Relationships of Intermittent Abuse, 6 VICTOMOLOGY 139, 146-47 (1981)). See also PUBLIC HEALTH REPORTS, supra note 28, at 328-38 ("Traumatic bonding [is] a type of obedience and terrified clinging" to the batterer).

34 Layton, supra note 23, at 471; see also Joan M. Schroeder, Note, Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer, 76 IOWA L. REV. 553, 557 (noting that the risk of homicide is 75% higher when the woman tries to leave); Alexandra L. Wannop, Battered Woman Syndrome and the Defense of Battered Women in Canada and England, 19 SUFFOLK TRANSNAT'L L. REV. 251, 253 (stating that a battered woman is most likely to be killed when she attempts to leave her abuser).

35 MONES, supra note 19, at 28 Stating that:

parents wield an unparalleled degree of influence and power over their children, who are completely dependent upon them. In this respect, the parent-child relationship is unique, the only social union not based on choice. As New York psychiatrist Albert Shengold writes in his insightful book on the long-term effects of child abuse, Soul Murder, 'the child's almost complete physical and emotional dependence on adults easily makes possible tyranny and therefore child abuse.'

36 State v. Janes, 850 P.2d 495, 502-03 (Wash. 1993) (en banc) (discussing the child inability to leave home because of his extreme dependence on the parent); see also MONES, supra note 19, at 33-34 (stating that the battered child's profound dependency on the parent and his feelings of confusion and guilt make seeking help the exception, not the norm); L. WALKER, supra note 28, at 47 (noting that once a battered person develops the psychological condition of "learned helplessness" they become passive and do not attempt to escape the battering relationship); Hicks, supra note 27, at 125 (discussing the common myth that battered persons are free to leave their abuser).

37 Sacks, supra note 23, at 349 ("Abused children view killing their parents as the only way to end the abuse.").

38 Goldman, supra note 9, at 185, n.4 (stating that the batterer is often in a nonthreatening position, asleep or otherwise unaware of the defendant's presence when killed); see also MONES, supra note 19, at 14 (noting that battered children usually kill their abusive parent when the parent is in the least defensible position).

39 Hicks, supra note 27, at 103-04 (describing the hypervigilant child as one who continually monitors his environment for those signals that suggest danger is imminent.); see also Susan E. Bernstein, Note, Living Under Siege: Do Stalking Laws Protect Domestic Violence Victims?, 15 CARDOZO L. REV. 525, 549-50 (noting that "[a] subtle gesture or a new method of abuse" by the batterer may create a reasonable fear in the battered woman); Layton, supra note 23, at 472 (noting that battered woman and children both develop the ability to monitor their environments for subtle changes in the abusive pattern); Joelle Anne Moreno, Comment, Killing Daddy: Developing A Self-Defense Strategy For The Abused Child, 137 U. PA. L. REV. 1281, 1286 (1989) (victims of family abuse "become attuned to stages of violence and learn to interpret certain conduct to indicate an imminent attack or a more severe attack.") (quoting Crocker, The Meaning of Equality for Battered Women Who Kill Men in Self-Defense, 8 HARV WOMEN'S L.J. 121, 127 (1985)); Sacks, supra note 23, at 350 ("Courts must recognize that in the mind of an abused child, 'the imminent danger is more subtle and is only perceptible to an abused child.' ").

40 "Unable to perceive an alternative other than murder to solve the conflict or to identify anyone who can help them, these children frequently feel that if they do not act, they may be the murder victim . . . ." Sacks, supra note 23, at 357. See also George R. Fletcher, Self-Defense And Relations Of Domination: Moral And Legal Perspectives On Battered Women Who Kill: Domination In The Theory Of Justification And Excuse, 57 U. PITT L. REV. 553, 558 (1996) (stating that, in light of her prior abuse, battered woman have reason to fear renewed violence and therefore, killing their partner while he is asleep is an arguably legitimate response); Susan C. Smith, Comment, Abused Children Who Kill Abusive Parents: Moving Toward An Appropriate Legal Response, 42 CATHOLIC L. REV. 141, 144-45 (1992) (stating that abused women and children are faced with a decision "to kill or be killed.").

41 Jahnke v. State, 682 P.2d 991, 1012 (Wyo. 1984) (Rose, J., dissenting) (stating that a jury, deprived of an expert's testimony of how battered persons perceive the imminence of danger, could not be expected to understand the impact of years of abuse on a battered child state of mind); Moreno, supra note 39, at 1289 ( "A self-defense theory that allows a judge or jury to conclude that the defendant acted reasonably must educate the decisionmaker about the defendant's state of mind and behavior at the time of the killing.").

42 Laura Huber Martin, Note, Ohio Joins the Majority and Allows Expert testimony on the Battered Woman Syndrome: State v. Koss, 551 N.E.2d 970 (Ohio 1990), 60 U. CIN. L. REV. 877 (1992). Ohio now follows the majority of jurisdictions that allow expert testimony to establish the reasonableness of the battered woman's actions in the context of self-defense. Id.; see also James O. Pearson, Jr., Annotation, Admissibility of Expert Testimony on Battered Wife or Battered Woman Syndrome, 18 A.L.R. 4th. 1153 (1981) (for a collection of state and federal cases admitting expert testimony of the battered woman syndrome); Robert F. Schopp et al., Battered Woman Syndrome, Expert Testimony, and the Distinction Between Justification and Excuse, 1994 U. ILL. L. REV. 45, 47 (1994) (stating that expert testimony of the battered woman syndrome has gained wide-spread acceptance in the courts).

43 423 N.E.2d 137,140 (Ohio 1981) (holding that a social worker was properly precluded from testifying as to the battered wife syndrome), overruled by State v. Koss, 551 N.E.2d. 970 (Ohio 1990). See also supra note 46 and accompanying text.

44 Thomas, 423 N.E.2d at 137. The defendant was physically abused by her common law husband over a three year period. Id. On January 12,1978 the defendant shot him in the forehead during an argument. Id. She testified that she feared for her life at the time of the shooting and therefore acted in self-defense. Id. The trial court refused to admit expert testimony on the battered wife syndrome. Id. The defendant was subsequently found guilty of murder. Id. The issue on appeal was whether the trial court erred in excluding the expert testimony. Id. at 139.

45 Id. The Court stated four grounds for excluding battered wife syndrome testimony:

(1) it is irrelevant and immaterial to the issue of whether the defendant acted in self-defense at the time of the shooting; (2) the subject of expert testimony is within the understanding of the jury; (3) the "battered wife syndrome" is not sufficiently developed, as a matter of commonly accepted scientific knowledge, to warrant testimony under the guise of expertise; and (4) its prejudicial impact outweighs its probative value.

Id.

The Court was worried that "[e]xpert testimony . . . would tend to stereotype defendant, causing the jury to become prejudiced. It could decide the facts based on typical, and not the actual, facts." Id. at 140.

46 551 N.E. 2d 970, 973 (Ohio 1990) (holding that battered woman syndrome testimony is admissible to assist the trier of fact in evaluating the woman's self-defense claim). In Koss, the defendant was convicted of voluntary manslaughter for the shooting death of her husband. Id. at 972. Testimony at trial revealed that he had beaten her on numerous occasions over the course of their marriage. Id. at 971. On one occasion, he tried to smother her. Id. On another, he threw a radio in the bathtub while she was bathing. Id. The defendant testified that on the night of the shooting she saw a gun on the nightstand in the couple's bedroom. Id. She then recalled that her husband "hauled off" and hit her. Id. The next thing she could remember was the sound of gurgling blood. Id.

47 OHIO R. EVID. 702, which governs the admissibility of expert testimony in Ohio, reads:

A witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably implements the theory;

(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

The preamendment-Rule 702 permitted expert testimony to "assist the trier of fact." GLEN WEISSENBERGER, WEISSENBERGER'S OHIO EVIDENCE 1998 COURTROOM MANUAL 248 (1997). The new rule replaces the "trier of fact" language with two components: Expert testimony will assist the trier of fact only when the expert is testifying on matters "beyond the ken" of lay persons and also when the expert testimony is reliable. Id.

Battered woman syndrome testimony satisfies the requirements of Rule 702 because 1) knowledge of the battered woman syndrome is beyond the ken of the average juror and 2) the syndrome is accepted by the scientific community as reliable. Id.; see also State v. Daws, 662 N.E.2d 805, 814 (Ohio Ct. App. 1994) ("It is clear . . . that Ohio courts must consider the 'subject matter and details' of the battered woman syndrome to be outside the ken of the average juror.").

48 Koss, 551 N.E.2d at 975 (stating that "[w]here the evidence establishes that a woman is a battered woman, and where the expert is qualified to testify about the battered woman syndrome, expert testimony concerning the syndrome may be admitted to assist the trier of fact in determining whether the defendant acted in self-defense."). The battered woman syndrome does not establish a new defense or justification. Id. at 974. But see Jahnke v. State, 682 P.2d 991, 996 (Wyo. 1984) (refusing to allow the battered child defendant to present expert testimony on the psychology of the battered child syndrome because "the effort which is made on behalf of the defendants is to secure the recognition of a special defense in a homicide case for victims of family abuse.").

49 Koss, 551 N.E.2d at 972 (stating that since 1981 several books and articles have been written on the battered woman syndrome).

50 Id. at 973 ("Expert testimony . . . would help dispel the ordinary lay person's perception that a woman in a battering relationship is free to leave. . . . Popular misconceptions about battered woman would be put to rest, including the belief that the women are masochistic and enjoy the beatings . . . ."); see also Daws, 662 N.E.2d at 811 (quoting Sheehy, Stubbs & Tolmie, Defending Battered Women on Trial: The Battered Woman Syndrome and Its Limitations, 16 CRIM. L.J. 369, 375 (1992)) ("There are prevailing community myths and stereotypes about domestic violence and battered women that [cause jurors] to interpret the offender's circumstances contrary to her own experience of them."); Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. PA. L. REV. 379, 384 (1991) ("According to the popular myth, a wan, mousy wife suddenly loses it and kills the hapless guy in his sleep. Or she hires a friend to blow him away and stuffs his body in a garbage can.").

51 Koss, 551 N.E.2d at 973; see e.g. State v. Thomas, 468 N.E.2d 763, 765 (Ohio Ct. App. 1983) (holding that testimony of the defendant's psychiatrist offered to support her self-defense claim was relevant and admissible to show the condition of the defendant's state of mind at the time of the killing).

52 Ohio Rev. Code Ann. (2901.06 (Anderson 1996) provides:

(A) The general assembly hereby declares that it recognizes both of the following, in relation to the "battered woman syndrome:"

(1) That the syndrome currently is a matter of commonly accepted scientific knowledge;

(2) That the subject matter and details of the syndrome are not within the general understanding or experience of a person who is a member of the general populace and are not within the field of common knowledge.

(B) If a person is charged with an offense involving the use of force against another and the person, as a defense to the offense charged, raises the affirmative offense of self-defense, the person may introduce expert testimony of the "battered woman syndrome" and expert testimony that the person suffered from that syndrome as evidence to establish the requisite belief of an imminent danger of death or great bodily harm that is necessary, as an element of the affirmative defense, to justify the person's use of force in question. The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.

Additionally, H.B. 484 contained Revised Code Section 2945.392 which provides for the use of expert testimony of the battered woman syndrome to establish a plea of not guilty by reason of insanity. Martin, supra note 42, at 889 n. 83. Some commentators argue that equating the battered woman syndrome with insanity will result in the court concluding that the woman is mentally ill and should be committed to a mental institution. Kimberly B. Kuhn, Note, Battered Woman Syndrome Testimony: Dunn v. Roberts, Justice is Done by the Expansion of the Battered Woman Syndrome, 25 U. TOL. L. REV. 1039, 1063-64 (1995).

53 See supra note 52.

54 See e.g. Regina Brett, A Judge's Sentence Keeps Teen Out of Jail, THE TIMES UNION, Mar. 21, 1997, at D1. In a recent unreported case, a jury found 17-year old Will Snyder guilty of voluntary manslaughter for killing his father with a baseball bat. Id. In an emotional trial, the jury heard about Will's life of abuse. Id. Over 70 neighbors, friends, and others confirmed that Will was a battered child, having seen him with black eyes, bruises, and welts. Id. On one occasion, Will's father punched him and broke his nose when he asked to go outside. On other occasion, his father beat him with a broom handle causing blood clots to form in his legs. Id.

A forensic psychologist from the Cleveland Clinic testified that Will suffered from post-traumatic stress disorder and subsequently could sense imminent danger long after each incident of abuse. Id. The trial judge instructed the jury to put themselves in Will's position to decide whether he felt himself to be in imminent danger. Id. After the jury rendered its verdict, a Christian home offered to take Will into its living program. Id. The judge accepted the offer and sentenced him to five years probation, a fine and community service. Id.

55 No. 49566, slip op. (Ohio Eighth App. Dist.., Sept. 26, 1985).

56 Id.

57 Id. Defendant claimed that expert testimony was necessary to show that he was a "battered person" and that he was justified in his belief that deadly force was needed to prevent his own death. Id. at 1-2. There was testimony at trial that the defendant's father had previously beaten him. Id. at 2.

58 Id.

59 Id. The court further stated that admitting battered person syndrome testimony would permit the jury "to make determinations based on stereotype, not fact." Id at. 3.

60 No. H-89-7, 1991 Ohio App. LEXIS 6332 (6th. Dist. Dec. 31, 1991). The defendant, James Young, shot his father fourteen times in the back while he was lying under a pick-up truck. Id. at *7. When his step-mother arrived home, he shot her. Id. at *7-9. Defendant pleaded not guilty of the killings by reason of insanity. Id. at *3. At trial, witnesses testified to seeing James being "punched, kicked and slammed into vehicles" by his father. Id. at *12. James testified that both of his parents had physically and mentally abused him since he was three years old. Id. The jury found him guilty of voluntary manslaughter for his father's death, and aggravated murder for killing his step-mother. Id. at *4.

61 Id. at *28. The State claimed that the defendant was not motivated by self-defense in response to a lifetime of beatings. Id.

62 Id. at *29-31 (stating that the expert testimony was relevant to determine whether the defendant was acting out of fear at the time of the killings).

63 Koss, 551 N.E.2d at 973 (relying on the holding in State v. Robbins, 388 N.E.2d 755 (Ohio 1979), the court noted that a person asserting self-defense must have a bona fide belief that he was in imminent danger of death or great bodily harm).

Although the Koss court stated that Ohio has adopted a subjective test, in the paragraphs that followed this statement, the court used language indicative of a combined subjective and objective test:

[i]n determining whether the defendant had reasonable grounds for an honest belief that she was in imminent danger, you must put yourself in the position of the Defendant . . . under the same circumstances and conditions that surrounded the Defendant at the time. You must consider the conduct of Michael Koss and determine if such acts and words caused the Defendant to reasonably and honestly believe that she was about to be killed . . . .

Id. (emphasis added).

64 673 N.E.2d 1339 (Ohio 1997).

65 There are three elements of a self-defense claim in Ohio: 1) the defendant must not be at fault in creating the affray, 2) the defendant must have a bona fide belief that he was in imminent danger of death or great bodily harm and that the use of force was the only means of escape, and 3) the defendant must not violate a duty to retreat. State v. Robbins, 388 N.E.2d 755, 758 (Ohio 1979).

66 Thomas, 673 N.E.2d at 1345-46 (holding that the trial court properly instructed the jury to consider whether the battered-woman defendant had both an objectively reasonable and an honest belief that she was in imminent danger). The trier of fact must evaluate the reasonableness of the defendant's actions from the perspective of an ordinary and prudent person in the shoes of the defendant under like circumstances. Hicks, supra note 27, at 118.

A majority of jurisdictions use an objective standard of self-defense. For a review of cases employing the objective standard of reasonableness see John F. Wagner, Jr., Annotation, Standard for Determination of Reasonableness of Criminal Defendant's Belief, for Purposes of Self-Defense Claim, That Physical Force is Necessary - Modern Cases, 73 A.L.R.4th 993 (1990). Under this standard, one who is unlawfully attacked by another is justified in using deadly force to protect himself when he reasonably believes that he was in imminent danger of death or serious bodily harm. WAYNE LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 457-58, (1986).

A minority of courts and the Model Penal Code use a subjective test to measure a particular defendant's conduct. Goldman, supra note 9, at 187-88, n. 9 &10. Under this test, the defendant need only have an honest, albeit unreasonable, belief that he was in imminent danger of harm. MODEL PENAL CODE 3.04 (1) (1974). The subjective standard is more sensitive to the perception of the defendant and has been criticized for encouraging preemptive strikes, self-help and retaliatory killings. See Goldman, supra note 9, at 208-13. See also Elisabeth Ayyildiz, When Battered Woman's Syndrome Does Not Go Far Enough: The Battered Woman As Vigilante, 4 AM. U. J. GENDER & LAW 141, 142 (1995) (stating "those arguing that battered woman's syndrome is dangerous fear that it allows 'a private right to impose the death penalty.' ") (quoting Alison M. Madden, Clemency for Battered Women Who Kill Their Abusers: Finding A Just Forum 4 Hastings Women's L.J. 1, 56 (1993)). But see Walter W. Steele, Jr. and Christine W. Sigman, Reexamining the Doctrine of Self-Defense to Accommodate Battered Women, 18 AM. J. CRIM. L. 169, 184-85 (1991) (discussing how the fears most often expressed by critics of the battered woman syndrome self-defense plea are unfounded).

The battered person's self-defense claim is not in accord with the traditional self-defense model because the killing often occurs in a nonconfrontational setting. Goodwin, supra note 21, at 444-45. Thus, a battered defendant is likely to have difficulty establishing the "imminency" requirement of self-defense. Id. For this reason, it is especially important to allow experts to explain to the jury how years of persistent abuse caused the defendant to reasonably and honestly believe himself to be in imminent danger. Id. at 448-49.

67 Thomas, 673 N.E.2d at 1345. In discussing the sufficiency of the trial court's self-defense instruction, the court stated, "the jury first must consider the defendant's situation objectively, that is, whether, considering all of the defendant's particular characteristics, knowledge, or lack of knowledge, circumstances, history, and conditions at the time of the attack, she reasonably believed she was in imminent danger." Id. "[I]f the objective standard is met, the jury must determine if, subjectively, this particular defendant had an honest belief that she was in imminent danger." Id.

68 Thomas, 673 N.E.2d at 1341.

69 Both Koss and Thomas were authored by Ohio Supreme Court Justice Alice Robie Resnick. While Justice Resnick did not expressly state in Thomas that Ohio's subjective standard was hereby modified, her opinion leaves little room for debate. Thomas clearly advocates a two-pronged subjective and objective test of self-defense. As Justice Resnick stated, "the jury must first consider the defendant's situation objectively . . . ." Id. at 1345. This standard is sometimes labeled the "reasonable battered person" standard. Id. If the objective element is satisfied, the jury must then evaluate the subjective honesty of a defendant's belief that self-defense was necessary. Id. For another decision advocating the reasonable battered person standard in the context of the battered wife see State v. Stewart, 763 P.2d 572 (Kan. 1988).

70 Koss, 551 N.E.2d at 973 (stating that evidence of the battered defendant's state of mind is critical in determining whether he properly acted in self-defense); see also Janes, 850 P.2d at 504-05 (Rose, J., dissenting) (discussing how expert testimony of the battered child syndrome helps the jury evaluate the subjective perceptions of the defendant as well as whether the defendant acted as would a reasonable person in the same situation).

71 Suzanne's blood alcohol level was twice the legal limit on the morning Brian shot her. Brief for Appellant, supra note 13, at 6.

72 Id. During Brian's trial for the shooting death of his mother, there was an abundance of testimony by persons who had witnessed his mother abuse him. Id. at 2-19. There was testimony that his mother would call him a dickhead, asshole, sorry-ass loser, mother fucker, fuckhead, fag, queer, faggot, nerd and dork. Id. at 4. On one occasion, when Brian had fallen asleep on the couch, she woke him up by burning his hand with a cigarette. Id. at 13. On another occasion, she cut him on the ribs with a hanger. Id. By December of 1994, his mother was drinking and hitting him every night for hours at a time. Id.

73 Id. at 16.

74 Id.

75 Id.

76 Id. Brian testified that he was "going nuts" in his room. Id. at 17. "I was crying real hard. I didn't have no sleep. I was real tired. My legs were shaking. My whole body was real numb because I was so cold." Id.

77 Nemeth, 1997 Ohio App. LEXIS 335, at *1.

78 Brief for Appellee at 3-4, State v. Nemeth, 1997 Ohio App. LEXIS 335 (No. 95-JEX-00032). After he shot her, Brian called the State Highway Patrol and told them to hurry, he didn't want her to die. Brief for Appellant, supra note 13, at 18.

79 Brief for Appellant, supra note 13, at 1.

80 Nemeth, 1997 Ohio App. LEXIS 335, at *3. On April 17, 1995, the Jefferson County Juvenile Court ruled that Brian should be tried as an adult and bound him over to the Grand Jury. Id.

81 Id. at *3-4.

82 Brief for Appellee, supra note 78, at 5. The State argued that "Ohio restricts the admission of psychological testimony for mental capacity and the Battered Child Syndrome is not recognized in Ohio." Id. at 6.

83 At the Juvenile level, defense counsel received permission to hire Dr. James R. Eisenberg, Ph.D. as a defense expert. Brief for Appellant, supra note 13, at 1. Dr. Eisenberg testified in the "bind-over proceedings" as to Brian's state of mind as a battered child. Id.

84 Despite defense opposition to the State's motion in limine, the trial court ruled that the defense may not offer expert psychiatric testimony unrelated to an insanity defense. Nemeth, 1997 Ohio App. LEXIS 335, at *4.

85 Id.

86 Brief for Appellant, supra note 13, at 23 (first assignment of error) & 38 (second assignment of error).

87 Id. at 23.

88 Nemeth, 1997 Ohio App. LEXIS 335, at *15.

89 Id. at *12 (basing its holding on the fact that Ohio recognized the validity of the battered woman syndrome in Koss and by legislative enactment of R.C. 2901.06, the battered woman statute). For the full text of the battered woman statute, see supra note 52.

After the Nemeth ruling, the State moved the appellate court to reconsider its decision and made a motion to certify a conflict, both of which were denied. Nemeth, 1997 Ohio App. LEXIS 335, at *1.

90 See infra note 99 for sources discussing the analogies between battered women and children.

91 See infra notes 110-118 and accompanying text.

92 The Nemeth court held that expert testimony is necessary to assist the trier of fact in determining whether the child defendant acted out of an honest belief that he was in imminent danger. Nemeth, 1997 Ohio App. LEXIS 335, at *15. Note that the court did not mention that the defendant must have a "reasonable" belief of imminent harm. However, as stated earlier in this Note, it appears that Ohio uses both a subjective and objective standard of self-defense. See supra notes 63-70 and accompanying text.

93 See infra notes 120-134 and accompanying text.

94 See supra note 6 and accompanying text.

95 The courts use one of the following standards of review to measure the constitutionality of governmental action challenged on equal protection grounds:

If the government intentionally discriminates against a fundamental right or suspect class (race and national origin), strict scrutiny applies and the governmental action will be struck down as unconstitutional unless it is narrowly-tailored to further a compelling governmental objective. See e.g. Loving v. Virginia, 388 U.S. 1, 11 (1967); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 672 (1966); Sorrell v. Thevenir, 633 N.E.2d 504, 511 (Ohio 1994).

If the government discriminates against a quasi-suspect class (gender and illegitimacy), intermediate scrutiny applies and the governmental action will be upheld as constitutional if it substantially related to an important governmental interest. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 435 (1985).

Finally, if the government discriminates against a non-suspect class (those classes not included above ), the governmental action will be deemed constitutional if it bears a rational relationship to a legitimate governmental interest. Heller v. Doe, 509 U.S. 312, 320 (1993); Huntington Nat'l Bank v. Limbach, 643 N.E.2d 523, 524 (Ohio 1994).

96 The test whether a classification is arbitrary is whether the difference in treatment between the two classes rationally furthers a legitimate state goal. Nordlinger v. Hahn, 505 U.S. 1, 33 (1992) (Stevens, J. dissenting).

97 See Colgate v. Harvey, 296 U.S. 404, 423 (1935) (stating that legislative classifications "must be reasonable and not arbitrary, and must rest upon some ground for difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." ) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920)); see also Harris v. McRae, 448 U.S. 297, 322 (1980) (noting that a classification that is wholly irrelevant to the achievement of a legitimate governmental interest is unconstitutional); see also supra note 7 and accompanying text.

98 Nemeth, 1997 Ohio App. LEXIS 335, at *15-16.

99 State v. Janes, 850 P.2d 495, 502 (Wash. 1993) (en banc) (stating that "the battered woman syndrome and the battered child syndrome constitute a single psychological disorder . . . . The differences between the two groups are negligible"); Jahnke v. State, 682 P.2d at 996 (Wyo. 1984) (noting that there is no reason to distinguish between a battered wife who is abused and a child who is a victim of abuse); State v. Holden, No. 49566, Ohio App. Eighth Dist., slip op. (stating that "we are unable to discern a distinction between a 'battered wife syndrome' and a 'battered person syndrome,' "); Goldman, supra note 9, at 192 (noting that the psychological attributes of battered children are essentially identical to those of abused woman); Goodwin, supra note 21, at 431 (stating that "[t]he similarities of the syndromes . . . necessitates using the battered woman syndrome as a foundation for furthering . . . legal recognition of the Battered Child Syndrome defense."); Hicks, supra note 27, at 124 (stating that the battered woman and battered child syndromes are analogous disorders); Layton, supra note 23, at 471-72 (describing the similarities between the two syndromes).

100 Janes, 850 P.2d 495 (Wash. 1993) (en banc). In Janes, 17-year-old Andy Janes was convicted of second degree murder for the shooting death of his stepfather, Walter Jaloveckas. Id. at 496. Walter had abused him since he was a young child. Id. at 499. Once when Andy was doing dishes, Walter struck him in the head without warning, rendering him unconsciousness. Id. On another occasion, Walter hit Andy with a piece of firewood, again knocking him unconscious. Id. During the years of abuse, Walter had threatened to nail Andy's hands to a tree, brand his forehead, break his fingers with a hammer, and wrap a crowbar around his head. Id.

101 Id. at 503. The court stated that "[b]oth syndromes find their basis in abuse-induced PTSD and elicit a similar response from the abuse victim . . . . [Therefore] we see no reason to treat the two syndromes differently." Id. at 502. The court held that battered child syndrome testimony should be admitted to establish a self-defense claim when relevant. Id. at 503.

102 Holden, No. 49566, Ohio App. Eighth Dist., slip op.

103 Jahnke, 682 P.2d at 1008.

104 Id. at 996.

105 Nemeth, 1997 Ohio App. LEXIS 335, at *13 (quoting Layton, supra note 23, at 471-72). See supra note 99 for materials discussing the similarities between battered women and children.

106 Hicks, supra note 27, at 123.

107 Janes, 850 P.2d at 502. It goes without saying that the post-traumatic stress disorder, a common denominator between the battered woman and battered child syndromes, is well-accepted in the scientific community as a valid conditions. See supra note 29. Thus, the Washington Supreme Court's statement in Janes that "[t]he underlying principles of the battered child syndrome are generally accepted in the scientific community" is well-founded. Janes, 850 P.2d at 503.

108 Id. at *15-16.

109 See supra note 52 for the full text of Ohio's battered woman statute.

110 A statute is underinclusive when it excludes persons who are similarly-situated in terms of the purpose of the law. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 598-99 (5th ed. 1995). In some instances, the underinclusiveness is so severe that the legislative classification does not "rationally further" the state's interest and is therefore, unconstitutional. Nordlinger v. Hahn, 505 U.S. 1, 35 (1992) (Stevens, J., dissenting).

111 Martin, supra note 42, at 889 n.85. Originally, H.B 484 (later codified as R.C. 2901.06) referred to the battered spouse syndrome and the battered person syndrome, which would have included battered children. Id. The Senate Judiciary Committee, however, removed the battered person language from the bill when it concluded that the battered child syndrome was not scientifically established according to research. Id

112 See supra note 50 and accompanying text.

113 State v. Daws, 662 N.E. 2d 805, 814 (Ohio App. 1994) (discussing the legislative purpose of R.C. 2901.06). See also the text of R.C. 2901.06 (B), supra note 52.

114 Hicks, supra note 27, at 127. ("An understanding of why a person remains in [an abusive] relationship is beyond the common knowledge of the layman. . . . In order to reconcile the battered person's failure to leave or get help with [the jury's] view of what a reasonable person would have done, the jurors might rely upon myths such as 'the beatings weren't really that bad' or that 'the person could have left at any time.' ").

115 See supra note 41 and accompanying text.

116 Developments in the Law: Legal Responses to Domestic Violence; Battered Women Who Kill Their Abusers, 106 HARV. L. REV. 1574, 1580 (1993) (stating that expert testimony is necessary to explain to the trier of fact why a battered woman's "seemingly unreasonable behavior may actually be reasonable.").

117 See supra note 111.

118 The General Assembly's conclusion that the battered child syndrome was not scientifically established, if reasonable when the statute was enacted, is ill-founded today. In Koss, the Ohio Supreme Court concluded that the battered woman syndrome had gained scientific acceptance because "several books and articles have been written on the subject. " State v. Koss, 551 N.E.2d 970, 972 (Ohio 1990). The same holds true for the battered child syndrome. There is an extensive volume of literature on the battered child syndrome. See supra notes 18-41 and accompanying text. See also Janes, 850 P.2d at 503 (stating that the battered child syndrome is generally accepted in the scientific community). Hence, there is no rational basis to exclude battered children from the benefits of R.C. 2901.06.

119 Nemeth, 1997 Ohio App. LEXIS 1182, at *1 (stating that battered child syndrome testimony is necessary to assist the trier of fact in determining whether the child had an honest belief of imminent danger); Janes, 850 P.2d at 505 (stating that [expert testimony] greatly assists the jury in evaluating the reasonableness of the defendant's belief of imminent danger); see also Jennifer R. James, Turning the Tables: Redefining Self-Defense Theory for Children who Kill Abusive Parent, 18 LAW & PSYCHOL. REV. 393, 402 (Without expert testimony on the child's altered perceptions after years of abuse, "the jury is left to its own devices to determine the reasonableness of the victim-offenders actions."); Goodwin, supra note 21, at 452-53 ("Only with an understanding of the Battered Child Syndrome can the jury evaluate the reasonableness of a parricide defendant's conduct which is the basis for his or her claim of self-defense."); Developments in the Law, supra note 116, at 1580 ("[Expert] testimony can show the reasonableness of [a] defendant's belief that she was in imminent danger of death or serious injury even when she has killed her abuser in a seemingly nonconfrontational setting."). As stated by the Second Appellate District of Ohio in Daws, 662 N.E.2d at 811:

The jury's ability to determine the reasonableness of an accused's actions is dependent on its understanding of the circumstances surrounding the accused. Where the experiences of the accused are not within the experience of the average juror or where the jurors might have misconceptions of those experiences, expert testimony should be permitted to ensure that the jury can make an educated and informed determination of whether the accused's actions were reasonable. (emphasis added).

120 See supra note 47 for the text of Rule 702; see also State v. Koss, 551 N.E.2d 970, 973 (expert testimony is admissible if it is "beyond the ken of the jury."); State v. Buell, 489 N.E.2d 795, 802 (Ohio 1986) (expert testimony is admissible if it is sufficiently beyond the common experience of a lay person ).

121 Janes, 850 P.2d at 505 (stating that "[e]xpert testimony on the battered person syndromes is critical because it informs the jury of matters outside common experience."). See also Sacks, supra note 23, at 363:

Because battered children perceive things differently from other children, expert testimony aids the jury in understanding the unusual situation that battered children face. The jurors, comprised of ordinary laymen, are unlikely to comprehend the reasonableness of the child's fear if they have never been in such an abusive situation. Expert testimony aids the jury in evaluating the manner in which the battered child perceives the imminence of danger and his or her tendency to use deadly force to repel that danger. This is especially crucial in the absence of a confrontation when an average juror would not see any threat or impending danger. Furthermore, expert testimony shows how the fear of imminent bodily harm was constantly present rather than appearing only during beatings. An expert explains the reasons for the child's feelings of powerlessness, learned helplessness, being trapped, and theories why the child did not fight back even after repeated assaults. . . . There are many psychological reasons why a child stays and endures the abuse. Understanding why an abused child remains in a relationship and does not get any help from outside sources is beyond the common knowledge of the jury and therefore must be explained.

122 Commonwealth v. Goetzendanner, 679 N.E.2d 240, 244 (Mass Ct. App. 1997) (citing Smith v. State, 277 S.E.2d 678 (Ga. 1981)); see also State v. Kelly, 478 A.2d 364 (N.J. 1984); People v. Torres, 128 Misc.2d 129 (N.Y. Crim. Ct 1985); Commonwealth v. Mamay, 553 N.E.2d 945 (Mass. 1990); Commonwealth v. Day, 569 N.E.2d 397 (Mass. 1991).

123 State v. Gersin, 668 N.E.2d 486, 488 (Ohio 1996) (quoting State v. Boston, 545 N.E.2d 1220, 1239 (Ohio 1989)).

124 See supra note 50.

125 Daws, 662 N.E.2d at 811; see also Maris Van Sambeck, Parricide as Self-Defense, 7 LAW & INEQ. J. 87, 92 (1988) (stating that "[t]he standard of reasonableness for a self-defense defense must be what is reasonable to an abuse victim."); see also Developments in the Law, supra note 116, at 1580 (stating that the trier of fact "must consider the defendant's perspective in its evaluation of what a 'reasonable person' would do under similar circumstances.").

126 Because battered persons often kill their abusers when there is no objectively apparent threat of attack, it is extremely important that an expert be allowed to explain to the jury how the battered person's state of "hypervigilance" enables him to detect subtle changes in the behavior of his abuser that signals an impending attack. See supra notes 38-41 and accompanying text.

127 Layton, supra note 23, at 464 (noting that "since the child generally acts when the parent is nonconfrontational, evidence must be presented to show the reasonableness of the child's perceptions of imminence of the danger and the absence of any other means of escape."); see also Moreno, supra note 39, at 1289 ("Because victims of abuse kill their abusers when they are not being assaulted, experts on intrafamily violence are necessary to illuminate the psychological bases for a sense of immediacy and life-threatening risk, even under such conditions.") (quoting Blackman, Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill, 9 WOMEN'S RIGHTS L. REP. 227, 231). In Janes, the Washington Supreme Court noted that:

[a] threat, or its equivalent, can support self-defense when there is a reasonable belief that the threat will be carried out. Especially in abusive relationships, patterns of behavior become apparent which an signal the next abusive relationship. It is also important to distinguish "imminent harm" from "immediate harm." These two words have divergent meanings: imminent . . . hanging threateningly over one's head. . . immediate . . . occurring acting, or accomplished without loss of time: made or done at once.

Janes, 850 P.2d at 506. (citations omitted).

128 Under Rule 702(C) of the Ohio Rules of Evidence, expert testimony must be "based on reliable scientific, technical, or other specialized information." See supra note 47.

Since 1923, the standard for reliability of expert testimony had been the Frye test. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 585 (1993). The Frye, or "general acceptance" test, provides that admissibility of expert testimony based on a scientific technique is dependent upon whether the technique is generally accepted as reliable in the scientific community. Frye v. United States, 293 F. 1013, 1014 (D. C. Cir. 1923).

However, the United States Supreme Court recently held that the Federal Rules, not Frye, govern the admissibility of expert testimony. Daubert, 509 U.S. at 589 (noting that Federal Rule of Evidence 702 makes no mention of the "general acceptance" requirement of Frye). The Ohio Supreme Court has also rejected the Frye test. State v. Williams, 446 N.E.2d 444, 447 (Ohio 1983).

129 WEISSENBERGER, supra note 47, at 288.

130 Daws, 662 N.E.2d at 815; see also State v. Pierce, 597 N.E.2d 107, 112 (Ohio 1992) (stating that the standard for admissibility of scientific evidence is whether the challenged evidence is relevant and will assist the trier of fact in understanding the evidence presented or in determining a fact in issue); Christine Noelle Becker, Clemency for Killers? Pardoning Battered Women Who Strike Back, 29 LOY. L.A. L. REV. 297, 303 (1995) (noting, in the context of the battered woman syndrome, that expert testimony is relevant in that the jury must first understand the syndrome before it can determine whether the defendant's acted like a reasonable battered woman).

131 Koss, 551 N.E.2d at 973 (expert testimony is admissible if it is "beyond the ken of the jury."); see also State v. Buell, 489 N.E.2d 795, 802-03 (Ohio 1986) (expert testimony is admissible if it is sufficiently beyond the common experience of a lay persons ); State v. Coulter, 598 N.E.2d 1324, 1330 (Ohio Ct. App. 1992) (testimony that is not beyond the knowledge of the trier of fact is admissible).

132 Daws, 662 N.E.2d at 815-16. "The possibility that expert testimony will overwhelm the jury, causing it to forego an independent analysis of the facts, is present in every case in which expert testimony is permitted. We cannot say that this possibility constitutes unfair prejudice . . . . " Id. at 815. The idea that jurors might be unfairly swayed by expert testimony is diminished by cross-examination of the expert. Id..

133 See Jahnke, 682 P.2d at 1012 (Rose, J., dissenting) ("Denied the explanatory assistance of a qualified expert witness, it is as though [the battered defendant] had not been permitted to defend himself at all." ).

134 Developments in the Law, supra note 116, at 1580 (discussing how the average person's perception of what is "reasonable" is at odds with the perception of battered persons).

135 Nemeth, 1997 Ohio App. LEXIS 335, at *8.

136 Id. At *15.

137 Moreno, supra note 39, at 1284 (quoting Mones, THE RELATIONSHIP BETWEEN CHILD ABUSE AND PARRICIDE: AN OVERVIEW, IN UNHAPPY FAMILIES: CLINICAL AND RESEARCH PERSPECTIVES ON FAMILY VIOLENCE, 31, 37 (E. Newberger & R. Bourne eds. 1985).

138 See supra notes 90-134 and accompanying text.

139 Hicks, supra note 27, at 126; see also Layton, supra note 23, at 472 ("The Koss decision paves the way for judicial recognition of expert psychological testimony on the battered child syndrome.").

140 See Goodwin, supra note 22, at 460 ("A cry for equal rights of children must be made to all state courts and legislators.").